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Green v. Buck Brothers Co.

Decided: June 22, 1967.

MOE GREEN, PLAINTIFF-APPELLANT, AND JEAN GREEN, PLAINTIFF,
v.
BUCK BROTHERS CO., AND JOHN R. HAMILTON, DEFENDANTS-RESPONDENTS AND THIRD-PARTY PLAINTIFFS, V. ROSEMARY DAWICKI, ET AL., THIRD-PARTY DEFENDANTS



Conford, Foley and Leonard. The opinion of the court was delivered by Leonard, J.A.D. Foley, J.A.D. (dissenting).

Leonard

A jury verdict of $30,000 was returned in favor of plaintiff Moe Green in his personal injury suit arising out of an automobile collision. Plaintiff, contending the verdict is grossly inadequate and the result of trial error affecting damages, appeals from the judgment entered on this verdict and from the trial court's denial of his motion to set aside the verdict and grant a new trial solely as to damages.

The accident occurred November 6, 1964 when the automobile operated by plaintiff was struck in the rear by a truck owned by defendant Buck Brothers Co. and driven by defendant John R. Hamilton. Defendants' liability has been established and is not presently involved; the only question being the adequacy of the damages awarded to plaintiff.

Plaintiff contends the trial court committed reversible error (1) in excluding evidence as to his future loss of earnings because of allegedly deficient answers to interrogatories and (2) in denying his motion for a new trial on the issue of damages.

Plaintiff was 47 years old at the time of the accident. Since 1962 he and one of his sons were the proprietors and operators of a luncheonette, attending to the business on alternate shifts. Additionally, plaintiff for the past five summers had operated a snack bar concession at a swim club. Plaintiff testified that prior to the accident he worked at the luncheonette, as much as twelve hours a day on occasions, seven days a week, performing all types of laborious and heavy tasks. He further testified that subsequent to the collision he could only take cash; "at best" he could work only two and a half to three hours a day for four or five consecutive days; and he doubted that he was rendering

any service to the business. He also stated that he was unable to open the swim club concession in the summer of 1965.

The pertinent interrogatories propounded by defendant and plaintiff's answers follow:

"10. (a) If employed at the time of incident or occurrence, state: (1) The name and address of the employer; (2) Position held and nature of work performed; (3) Average weekly wages for past year; (4) Period of time lost from employment, giving dates; (5) Amount of wages lost, if any.

Plaintiff was not an employee. He operated his own businesses.

(b) Set forth your net earnings, income or profits as reported in your Federal Income Tax Return for each of the five (5) years preceeding [sic] the date of filing this complaint.

1964 -- $4,779.77 1962 -- ...


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