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and proclamation and on March 6, 1922, leave was granted to file the same. The borough now desires that the equity case be re-opened so that it may have opportunity to prove the record of the Court of Quarter Sessions as a part of its defense in the equity case.

We think that the Borough of Coopersburg should have the opportunity of proving the corrected record. We cannot and do not express any opinion as to the validity of the proceedings whereby the record was corrected as aforesaid. It may well be, as contended by counsel for plaintiff, that the provisions of the act are mandatory and that unless the ordinance, advertisement and proclamation are attached to the return the election is invalid. That question, however, can be determined with the other questions involved in the controversy when the court finally decides the issue. Undoubtedly, in view of the powers vested in us, we would not be justified in refusing to open the case and allow defendant the opportunity which it prays for. In cases involving the affairs of municipalities courts should afford the authorities every reasonable opportunity to show their right to serve what apparently is the overwhelming sentiment of the community.

Now, April 10, 1922, the prayer of the petition is granted; the case is re-opened and is set down for re-hearing on Monday, April 17, 1922 at 9 o'clock A. M., notice hereof to be given forthwith by the Prothonotary to all of the parties in interest or their counsel.

ment.

CAPECE v. BUSHINSKI.

Practice, C. P.-Trespass-Verdict-Reformation or Amend

Where a jury, in an action of trespass, returned a sealed verdict, in favor of plaintiff, without giving any sum, the court refused to reform or amend the verdict into a specific sum, in favor of the plaintiff and against the defendant, on the allegation that there was no dispute as to the amount of the damages, there being at most a mere scintilla of evidence on that subject.

In the Court of Common Pleas of Lehigh County. No. 74 October Term, 192'. M. R. Capece v. John Bush

inski. Trespass. Rule to Amend Verdict. Rule Discharged.

R. S. Taylor and H. V. Fisher, for Plaintiff.
Dallas Dillinger, Jr., for Defendant.

Reno, J., May 1, 1922. This action of trespass was for the recovery of damages caused by the collision of automobiles of plaintiff and defendant. The case was submitted to the jury which, after deliberation for an hour or more, returned that it found, "the plaintiff guilty of contributory negligence." This verdict we declined to accept and required the jury to retire and find a verdict either for plaintiff or defendant. We also instructed the jury again that if the verdict was for plaintiff the damages sustained by him must be assessed and returned as part of the verdict. The jury again retired and its deliberations, extending over the hour for adjournment, it sealed a verdict, separated and returned the verdict upon the opening of court the following morning. This verdict was as follows: "We find the defendant,

John Bushinski guilty of negligence." When the verdiet was rendered neither counsel for plaintiff or defendant were in court and the jury having separated after arriving at that verdict we deemed it unwise to send the jury back for further deliberation and, accordingly, accepted and entered the verdict.

We are now asked to amend the verdict so that it may read: "Verdict for plaintiff and against defendant in the sum of $139.33." It is claimed that we have the authority thus to amend verdicts and that we should exercise that authority in this case in view of the fact that there was no dispute as to the amount of the damage and that the only issue tried by the court was the right of plaintiff to recover at all.

It is undoubtedly true that courts may in the exercise of their discretionary powers: Kendig's Appeal, 82 Pa. 68; amend verdicts in such cases where the courts have any elements from which they can fairly expound the verdict and thus carry out its substantial finding: Keen v. Hopkins, 48 Pa. 446: or where the effect of the amendment is to change the record of the verdict to conform with the verdict actually rendered in open court:

Cohn v. Scheuer, 115 Pa. 178; Iven's Appeal, 33 Pa. 237: or where it is necessary in order that it may accord with the requirements of law: Byrne v. Grossman, 65 Pa. 310: or where the amount is inserted by the jury itself under the direction of the court after an incomplete sealed verdiet has been rendered: Smith v. Meldren, 107 Pa. 348. But an examination of these cases and of others of similar import shows that whenever a court has exercised the power to amend verdicts it has been able to determine in some manner what the jury did or intend to do or, failing in that, was able to determine what the jury would have done. In no instance has a court substituted its judgment for that of the jury by passing upon a question of fact submitted to the jury and concerning which the verdiet or surrounding circumstances throw no light upon the attitude or the state of mind of the jury. Thus, in the instant case, it may well be that the jury, notwithstanding our instructions, intended to gnd generally against the defendant without awarding damages to the plaintiff That is, it may have reached the conclusion from the evidence that the defendant operated his automobile negligently but that the plaintiff suffered no damage by reason or such negligence. Or it may have concluded that the defendant was guilty of negligence, but may have given no credence to the testimony offered by plaint f with respect to the damages suffered by him. And if that was its conclusion then the verdict accords with the conclusion and, manifestly, there is no need for amendment. There is nothing in the verdict as rendered from which the court can by any process of reasoning determine whether the jury intended to award damages to plaintiff and, if so, how much damage it intended to award. Consequently, if we undertook to amend the verdict we should substitute our judgment for that of the jury. The power to amend is merely a power to make the record accord with the facts. It is a power to cause the verdict to speak the truth. It is not a power whereby the judge may undo what the jury has done. It is clear, therefore, that having no information concerning what the jury intended to do we cannot amend its verdict to conform with an unknown intention. Even if we were disposed to substitute our judgment for that of the jury we should experience extreme difficulty in arriving at a conclusion.

The testimony of plaintiff and his witnesses with respect to the damages was so meager, uncertain and speculative that it would afford little or no basis upon which we could predicate a satisfactory finding. Indeed, we are not surprised that the jury did not return a verdict fixing damages. It is true that defendant offered no testimony in contradiction to that of plaintiff in respect to the damages but it does not follow that there was no dispute respecting the damages. Defendant cross-examined witnesses on damages and in his argument to the court and jury contended that there was no basis upon which damages could be allowed in the sum for which they were claimed. For all that we know the jury may have accepted this view of the matter and declined to award damages upon such an unsatisfactory presentation of that question. At all events, we are in no better position than was the jury and we must decline to fix damages upon what yes at most a mere scintilla of evidence concerning them. Naturally, this leaves plaintiff in an awkward position, Iut it is a position of his own making. Had he moved for a new trial within the time limited by our rules of court we should undoubtedly have given him the opportunity of securing a better verdict.

Now, May 1, 1922, rule on defendant to show cause why the verdict should not be amended is discharged.

RICHARDS' ESTATE.

Decedents' Estate-Claim for Nursing.

Claimant asked for compensation at $5 per week for attendance upon decedent for more than three years prior to his death. The evidence showed that she was not a relative; that the services were rendered at deccdent's personal solicitation; that he was totally blind; that the services were of a peculiarly trying and disagreeable nature because of his unclean habits and violent temper; that he paid her $5 a week for his board, which was less than its value; and that he had made declarations fairly indicating an expectation to pay claimant for her services to him. Claim allowed.

In the Orphans' Court of Berks County. Claim for nursing and attendance.

Adam B. Rieser for Mary Unger, Claimant.
John B. Stevens, for Accountant.

Opinion by Schaeffer, J., January 21, 1922.-The decedent died on the 10th day of April, 1921, intestate, unmarried and without issue, survived by no known relatives.

Against the balance, one Mary Unger has presented a claim of $875.00 for attendance upon decedent from October 27, 1917, to April 1, 1921, a period of three years and five months, at $5.00 per week.

The record shows that the services for which claim is now made were rendered by claimant at decedent's personal solicitation. In October, 1917, living somewhere in Long Island and stricken with total blindness, he sent for the former and prevailed upon her to take him into her home in Reading. There he paid her $5.00 per week board, but in addition to boarding him, she was obliged, by reason of his helplessness, to attend him much as one would a child.

That her services to him, extending over a long period of time, were of a peculiarly trying and disagreeable nature, the evidence leaves in no doubt. Not only was he blind and, therefore, entirely dependent upon her to minister to his simplest wants, but, witnesses testified, he was of unclean habits and of erratic and violent temper. Thus, while her service was to dress and feed him, pilot him about, and constantly to wash and clean as a result of his uncleanliness, she had also to bear the unpleasantness of his eccentricities and fits of temper. Either one was bad enough without the other; and one need hardly say that combined they involved an undertaking not usually performed for a stranger without expectation of reward.

However, where as in this case it appears that one has received from decedent $5.00 a week for board, a subsequent demand for payment of extra services rendered to him, as pointed out at the audit, should be supported by evidence of a special contract with him for payment of such extra services. This is not to say that claimant has failed to meet this obvious legal requirement of her claim. On the contrary, we think she has fairly met it. For aside from testimony to the effect that for the services she rendered to decedent $5.00 a week was grossly inadequate, it is common knowledge that during the period in question board alone commanded a much higher

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