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TABOR v. MILLER

June 1, 1967

Bonita M. TABOR, a minor, by Lewis H. Tabor and Betty W. Tabor, her parents and natural guardians, and Lewis H. Tabor and Betty W. Tabor, Individually and as husband and wife
v.
Richard F. MILLER and John R. Stearns, Defendants, and Herbert Boardman Lord, Jr., Defendant and Third-Party Plaintiff



The opinion of the court was delivered by: KRAFT

 In this personal injury action the jury absolved two defendants, Richard F. Miller (Miller) and Herbert B. Lord, Jr. (Lord) and returned verdicts *fn1" in plaintiffs' favor only against the remaining defendant, John R. Stearns (Stearns), who has moved for a new trial. *fn2"

 It is unnecessary to dwell, at length, upon the evidence concerning liability, in light of the nature of Stearns' attack on the verdict. Suffice it to say that the evidence amply supports the jury's determination of Stearns' liability. Briefly summarized, the wife-plaintiff was a passenger in her husband's car. This car, while stopped for a traffic signal, was struck in the rear by Miller's automobile, which, initially, had been struck in the rear by Stearns' vehicle. Thereafter, Lord's car struck Stearns' station wagon in the rear, but this collision followed and was unrelated to the Stearns-Miller-Tabor chaincollision. Stearns saw the Miller car stopped 200 feet ahead, but nonetheless, drove his car into the rear of Miller's car at a virtually unabated speed of 20 miles per hour.

 In support of his post-trial motion Stearns asserts that:

 
I. - a continuance should have been granted because of Stearns' unavailability due to military service;
 
II. - the issue of life expectancy of the wife-plaintiff should not have been submitted to the jury;
 
III. - the trial judge erred in reading and affirming plaintiff's point for charge #6, which reads as follows:
 
"6. A tort-feasor is liable to the full extent of the damage inflicted even though that damage would not have been so great had there not been an already existing condition which was aggravated by the tort-feasor's misconduct. It is no defense to a tort-feasor that his victim was more susceptible to harm than he might reasonably have foreseen: Said another way, a tort-feasor must take his victim as he finds him: Sciandra v. Shovlin, 418 Pa. 378, 381 [211 A.2d 437] (1965)";
 
IV. - the jury was not charged with respect to a distinction between interested and disinterested witnesses;
 
V. - the verdict was excessive.

 The threshold question, challenging the propriety of the denials of a continuance, requires some extended discussion. The collision occurred on June 9, 1961. Suit was instituted on May 22, 1963. A discovery deposition of defendant, Stearns, was taken September 10, 1963. The case appeared on the trial calendar for the fiscal year 1965-66, but was not reached. In the next year, on November 22, 1966, the case reached the head of the trial list, in the ready pool. All counsel were notified.

 Stearns' attorney applied to Judge Body, then Calendar Judge, for a continuance on November 23, 1966. He denied the application, but, endeavoring to accommodate Captain Stearns, ordered the trial for Monday, January 9, 1967.

 Counsel for Captain Stearns, on December 8, 1966, applied to Chief Judge Clary, then Calendar Judge, for a continuance. The record of this proceeding (Document 53) discloses that a letter from Captain Stearns to his attorney was read to the Calendar Judge. In that letter, Captain Stearns, a career officer in the United States Air Force, who has served for almost six years, represented that he was undergoing pilot training in Alabama, but would be in Philadelphia from December 23 to December 28, 1966. He also stated that, because of the shortage of pilots and the Viet Nam situation, his commanding officer thought it "highly desirable" that he complete his pilot training without interruption. In closing, Captain Stearns requested his attorney "Please let me know what provisions are made."

 This letter and counsel's representations of his client's unavailability were all that were presented to the Chief Judge in support of the application. Chief Judge Clary refused a continuance and ordered that Captain Stearns' trial deposition be taken and the trial begun "on the 9th of January or such time thereafter as we are able to find a judge to assign it to."

 The trial deposition of Captain Stearns was completed on December 27, 1966. The case was assigned for trial to a jury on January 12, 1967. Before the trial commenced, counsel for Captain Stearns again applied for a continuance, which the ...


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