Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1925-11-28

ecoc Tie pialntlfr within thirty DAYS
VI the rescr1pt make formal re-
mission or surrender of the excess
oanuaees or new trial would be
oIuered; This was an action for
personal damages which was brought
by Mr.. Hatch, who as rronnd
switchman suffered the loss of his
ieIt FOOT and ankle while perform
ing his duty. He was awarded a
verdict of $24 ,4S6.2O. The case was
oarrIeu TO the law court on excep-
lions which were overruled and on
motion for a new trial.
The language of the rescrint with
regard to the motion for a new trial
Ihere is this single legal difficulty
with the verdict: it is obviously ex.
cesslve In the amount of the award
of damages. ''""iu
This plaintiff, at the time of the
accident. was % years Of ape Gis
employment was that of ground
sWitchman. He fell beneath tbe
trucks of a freight car in movement
along a track, and in consequences
lost his left foot and ankle. The YER
uict is 81, 4S6.2O. One year had gone
SINCE the accident when the case was
trled. If plaintiff had not been in
Jured, and had worked constantly at
the same wage, his earnings would
nave been SloS6.0O. Add the aggre-
gate or the bills for hospitals, nurses
medicines, appliances, dentists, doc
tors. and there is remaining more
than $22,0O0OO.
Twenty-Five thousand dollars at <
per cent yield, on the basis of Mr..
Hatcns age at the trial, would pro-
VIDE him an annuity of approximate
~ Sl3O,OOO throughout his expetency
or life; and at & per cent, S1475. 90.
On a 40 basis, an underwater would
pay him annually $1147.3O, for life.
MIR. Hatch is far from being to.
tally incapacitated. His capable
mess however cannot be reduced to
| an average. Average capability is
not definable. No average man exists.
But many soldier returned to
the pursuits of civil life, manned as
seriously as this plaintiff is. has
faced the facts and adjusted him
self. compensated by his Government
for the estimated degree of physical
| disability, and geared a world to a
new efficiency.
Other elements of damages are to
be measured terms of money, and
| these not by any certain consequence
or dependence of one thing upon an
other, as in the insurance of those
computable by arithemetic, but by
deductive reasoning. One human be-
ing alone could picture the suffer-
ings. mental and physical, endured
by Hatch since calamity befell him.
His portrayal does not more than
glimpse the future. because it can
not. No one knows what coming
ing time stores: clouds and dark
ness rest upon it.
Suffice 1t to say rescriptively that
all the verdict above 100000 is
deemed excessive.
IT, on the part of the plaintiff,
within thirty DAYS from the rescript,
there is formal remission or sur
render of the excess of damages, the
motion for a new trial will fail, and
the mandate will be. motion over
ruled. And, IL no remittitur, motion
sustained; new trial.
Oyerrulcs Motion for New Trial
'rhe motion for a new trial was
overruled in the Piscataquis county
case of Nellie A. Hall VS.. Alwyn j.
Treadwell, executor. by a rescript
per curiam, received Friday at the
office of the clerk of courts. This
was an action to recover for serV-
ices in caring for a woman in her
last illness which continued FOR a
period of % weeks and in which the
sum of $433.S2 was returned for the
plaintiff by the jury. The case went
| to the law court on motion by the
] defendant.
The rescript:
The plaintiff acted as housekeeper
and nurse for the defendants tesla
trix, Mrs. Weltha A. Treadwell, dur
| ing the latter's last illness. The de-
ceased was suffering from tubercu-
losis and finally became bedridden,
! recurring the special attention such a
condition demands. The plaintiff s
services covered period of twenty
nine weeks.
Declaring upon an account annexed
with a count in quantum merult, the
plaintiff recovered q verdict of
s433.S2 in the court below, which the
defendant seeks to set aside. upon
motion. claiming that the services
were rendered gratuitously, or IL not,
the verdict is excessive and In fact
accord and satisfaction was executed.
The plaintiffs claim. that she left
remuneratiye employment and under
took the care of Mrs. Treadweli and
her home at the latter's request, Win
n mutual understanding that her
services were to be paid for, was evil
IDENTIFY accepted by the jury as true,
as was her denial OF any settlement
or arrangement amounting TO an &C
cord and satisfaction. The amount
If wages to be paid not being fixed
Nv the parties. their value was ior
tho Jury to determine. The verdict
is neither excessive nor clearly
! wrong.
/, Androscoggin Case
In the Androscoggin county case
|, of lincoln f. Clements VS.. L. j. MUIR :
nhy which was carried to the law
court on motion by the defendant,
the motion was overruled in a re-
script drawn by Justice Sturgis. Inc
rcscript is as follows:
Action of assumpsit upon account
annexed to recover balance claimed
to be due for labor and materials
furnished by the plaintiff in con-
structing a section of the state nigh
way through the town of Turner.
The defendant contends that an
oral contract was entered into be-
tween the parties, by which II was
agreed that the plaintiff should De
paid for his labor and material fur
nished on the basis of $500 per Gu
bic yard OF stone base laid. with an
y crocment that the oral contract
shollld be reduced to writing. He
urges that the oral contract was
completed and the writing was view
cd only as a convenient memorial.
The plaintiff denies that an express
oral contract was made and insists
that the parties continued only in
vaccinations. contemplating the
,se4;,,r md eyecI1ting of a written