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BUZZATTO ET AL. v. MARTIN (06/12/69)

decided: June 12, 1969.

BUZZATTO ET AL., APPELLANTS,
v.
MARTIN



Appeal from order and judgment of Court of Common Pleas of Washington County, Feb. T., 1962, No. 108, in case of Judith Buzzatto, a minor, by her natural guardian, Charles Anthony Buzzatto, Jr., et al. v. Ralph H. Martin et al.

COUNSEL

Frank C. Carroll, with him Alexander McIlvaine and John R. Bowman, for appellant.

Wray G. Zelt, III, with him George B. Stegenga, and Zelt and Zelt, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Dissenting Opinion by Hoffman, J. Spaulding, J., joins in this dissenting opinion.

Author: Per Curiam

[ 214 Pa. Super. Page 511]

Order and judgment affirmed.

Disposition

Order and judgment affirmed.

Dissenting Opinion by Hoffman, J.:

This appeal deals with a multiple car accident involving various plaintiffs and defendants. After reviewing the record I would award a new trial to Elizabeth Buzzatto limited to the issue of damages alone.

At the time of trial, the court, in its charge stated: "Here again I have not been able to find any loss of earnings with sufficient degree of certainty to allow you to figure them and include them in the verdict slip so I don't think you can award anything to the wife for loss of earnings at Mayview."

In its opinion, the court apparently admits error in this regard stating: "However, by reviewing the record, it is possible to determine that there were losses to some extent if the jury believed they were connected to the accident. To this extent the charge was inaccurate and unduly constrained the jury. It is unlikely they were constrained very much because the loss of earnings could not have been substantial."

The court, in my opinion, here underestimates the impact of its own charge upon the jury. Mrs. Buzzatto had testified as to loss of wages. The court then stated to the jury, erroneously, that that is no evidence of loss of earnings. The jury, hearing this charge, could only believe that the judge had concluded that Mrs. Buzzatto had been lying, at least as to this aspect. This comment, therefore, may have colored the jury's considerations in weighing the credibility of Mrs. Buzzatto's other testimony relating to pain and suffering. This is particularly so ...


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