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MICHULTKA v. GRAPIN (06/24/75)

decided: June 24, 1975.

MICHULTKA, APPELLANT,
v.
GRAPIN



Appeal from judgment of Court of Common Pleas of Delaware County, No. 11288 of 1972, in case of Francis Michultka v. Florence Grapin.

COUNSEL

Edwin P. Smith, and Dubyn & Smith, for appellant.

John Churchman Smith, and Gibbons, Buckley & Smith, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J.

Author: Cercone

[ 235 Pa. Super. Page 52]

The appellant, Mr. Michultka, brings this appeal dissatisfied with the amount of the damages verdict awarded by the jury. Although appellant challenges the propriety of two portions of appellee's summation to the jury, we find no error not adequately cured by the trial court's instructions and admonitions to the jury. Therefore, we find it necessary to discuss only one of appellant's allegations

[ 235 Pa. Super. Page 53]

    of error herein, which arises from the trial court's refusal to adopt one of appellant's proffered points for charge.

At the trial of this trespass action arising from an April 7, 1971 automobile accident,*fn1 the defendant-appellee called a Dr. Rumsey who is the company physician for Mr. Michultka's employer, the Philadelphia Electric Company. The principal reason for appellee's calling Dr. Rumsey was to demonstrate appellant's extensive medical history prior to the accident, especially with regard to his recurring problems with lower back pain and hypertension.*fn2 By so establishing those facts appellee apparently felt that he might provide some basis for the jury's concluding that, if Mr. Michultka experienced pain after the accident, it had an origin which pre-dated the accident. However, during cross-examination Dr. Rumsey testified as follows, based upon his notes of an examination of appellant conducted on June 11, 1971:

"Dr. Rumsey: [P]erirectal abscess essentially healed; wears collar for cervical sprain. Saw Dr. Kozin [appellant's family doctor] today, no work. Return 6/18/71. . . .

Q. Now, Doctor, in your opinion at that time did this healing or essentially healed rectal abscess, would that have prevented him from working in and of itself.

A. No, sir.

Q. But yet you indicated ...


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