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Estate of James M. Pollock

M. Pollock was unmarried; died June 18, 1920, and without issue; that he left surviving him five first cousins; viz., James P. Moorhead (unmarried); Catherine B. Moorhead (unmarried); Charles J. Sturgeon, who has since died leaving as his sole heir his widow, Anna C. Sturgeon; James C. Allen and William P. Allen.

Grandfathers, grandmothers, mother and father died before James M. Pollock and he did not leave any brother or sister surviving him. The five cousins are entitled to the estate. Wrightman's Estate, 30 Dist. Reports, 885.

Evidence was also submitted that James C. Allen and Ellen R. Allen, his wife, gave a letter of Attorney to James M. Allen December 26, 1921, to act for them in settlement of the estate, and William P. Allen gave a similar letter of Attorney to said James M. Allen, dated February 4, 1922, but that prior to this time; viz., May 25, 1921, William P. Allen sold, assigned and transferred all his right, title, interest, claim and demand in and to the personal estate of James M. Pollock to Watson B. Adair, and this is a valid assignment and to be regarded as such in the distribution.

The aforesaid Letters of Attorney must be recorded before distribution of any part to James M. Allen. There were several claims presented to the Administrator and unpaid by him; they are as follows: Mill Village Cemetery Association for

$90.00

Alleged to have been received by James M. Pollock,
as Treasurer of said Association.

Dr. E. E. Kendall, use W. S. Pollock

4.00

R. J. Smalley, general merchandise, a balance of
Dick Smiley, for plowing and harrowing

5.02

16.50

These four claims are now allowed and ordered paid. One other claim was presented by "Mrs. Jennie Dowler for board, room and washing, from February 5, 1915, to April 19, 1915, or 11 weeks, at $10.00 per week ....$110.00 For nursing during sickness with eryisipilis for five weeks at $25.00 per week, or

Total debt

$125.00

$235.00

Estate of James M. Pollock

Mrs. Jennie Dowler, the claimant, was called as a witness and objected to on the ground that she is a surviving party and incompetent to testify and objection made to the claim for the reason that it was barred by the Statute of Limitations. The Court thereupon continued the case until March 9, 1922, at 2 o'clock P. M. for the express purpose of giving the claimant an opportunity to prove her claim. On resuming the hearing at the time to which the adjournment had been taken, the claimant did not appear or any one for her, and the claim is disallowed.

And now, to-wit: March 16, 1922, the balance in the hands of the Accountant after payment of claims allowed and costs audit is $3,138.93, the account is confirmed; and it is ordered, adjudged and decreed that said balance, consisting of cash and securities be paid out and distributed by the accountant in money and in kind as follows:

One-fifth to each of the beneficiaries who have not assigned their interests, and to such other persons to whom legal assignments have been made or to whom have been granted a letter of attorney as heretofore set forth and in accordance with the schedule of distribution hereto attached and made a part hereof, unless exceptions be filed sec. reg. or an appeal be taken herefrom sec. reg.

CRAMER V. KELSH.

Negligence Damages-New Trial-Charge of Court.

It is error for the Court to charge "Now if you find that the plaintiff is entitled to recover damages at all, after you find the amount of damages he is entitled to recover, to that you add damages for delay. If he is entitled to recover damages at all, he was entitled to recover them on the day of this injury, and in cases of trespass, for some reason unknown to the Court, you do not say 'with interest' amounting to so much, but it is called damages for delay in payment, which, in no instance, can exceed the sum of six per cent." This error

Cramer v. Kelsh.

may be corrected by remitting all that could possibly have resulted from the instruction, when it is done upon motion of plaintiff.

Rule for new trial and judgment n. o. v., 127 February Term, 1921. C. P. Erie County.

M. Levant Davis for Plaintiff.

A. W. Mitchell for Defendant.

ROSSITER, P. J., March 14, 1922.

This action was brought by the plaintiff to recover damages from the defendant for injuries resulting from being overtaken and run down while riding his bicycle in front of defendant's automobile, which was being driven by her daughter, for her convenience, and in which she was riding at the time.

The defendant did not deny that her automobile ran the plaintiff down and that he was injured to some extent, but offered in extenuation that her daughter, who was driving her car, was placed in a position of sudden peril by reason of a large truck making a wide turn around a corner, coming into the street along which she was proceeding, which prevented her from using her best judgment, and that the plaintiff was not injured as seriously as he claims.

The case was tried before a jury, who rendered a verdict in favor of the plaintiff for $6,000.00, whereupon the defendant made a motion for judgment n. o. v. and for a new trial, assigning as sustaining the latter motion the following

reasons:

First: That the learned Court erred in its charge to the jury.

Second: That the learned Court erred in not unqualifiedly affirming all of the defendant's points.

Third: That the verdict was against the weight of the evidence.

Notwithstanding the reasons assigned for a new trial, there were but two reasons urged at the argument; viz., that the Court erred in its instructions to the jury concern

Cramer v. Kelsh.

ing damages for delay and also in permitting the attorney for the plaintiff upon cross-examination, to elicit the fact that Dr. Davis was employed in the case by Mr. McQuistion, who (at the argument for a new trial) it was asserted, was a representative of an accident insurance company. The Court said in its charge to the jury relative to damages for delay

"Now if you find that the plaintiff is entitled to recover damages at all, after you find the amount of damages he is entitled to recover, to that you add damages for delay. If he is entitled to recover damages at all, he was entitled to recover them on the day of this injury, and in cases of trespass, for some reason unknown to the Court, you do not say 'with interest' amounting to so much, but it is called damages for delay in payment, which, in no instance, can exceed the sum of six per cent.

It is freely admitted that under the ruling in Conover vs. Bloom, 269 Pa., 548, this instruction was clearly erroneous and would, of course, in the absence of other circumstances, call for a new trial, but the plaintiff comes into Court and upon motion requests leave to remit all of the verdict that could by any possibility have resulted from that instruction; to-wit, $513.04, and we have granted that request; hence that cause of complaint is removed, Witmer vs. Bessemer & L. E. R. R. Co., 241 Pa., 112; Charles Richards vs. Citizens Natural Gas Vo., 130 Pa., 37; Martha Emerson vs. J. M. Schoonmaker, 135 Pa., 437, and after a careful review of all other reasons assigned, we are of the opinion that the case was exceptionally well tried, the points properly answered, and that the verdict was not only notexcessive, but clearly warranted under the evidence, and that it would have been a miscarriage of justice had it been for less, for we believe that this case was a meritorious one, that the plaintifl ought to recover and ought to recover at least the amount of the verdict after the remission. In our opinion it is seldom that a damage case comes into Court, we might say never, with more merit than this came. Here, the plaintiff

Cramer v. Kelsh.

was absolutely without fault, riding along a public street in a manner in which he had a right to ride, was run down from behind, and, we think from the evidence and character of the witnesses who testified in his behalf, that he was seriously and permanently injured, and that he ought to recover and recover without delay, as he needs financial help now. The fact that it was elicited upon cross-examination that Mr. McQuistion had secured one of the physicians for the defense to testify was not important, for it did not appear at the trial that Mr. McQuistion was representing an insurance company and that fact was not known even to the Court until the argument for a new trial, so that the jury could not by any possibility have known that fact unless they gained their information outside of the court room; it could just as well have been presumed that he was an investigator employed by the defendant, a relative, or interested in any other way, as that he was a representative of an insurance company, but in any event, the latter fact did not appear before the jury.

Entertaining these views, therefore, the motions granted January 16 and January 26, 1922, for a new trial and for judgment n. o. v. are now, March 14, 1922, discharged, and the Prothonotary is directed to enter judgment upon the verdict in favor of the plaintiff and against the defendant for the sum of $5,486.96.

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