Rosen v. Slough , 212 Pa. Super. 398 ( 1968 )

212 Pa. Super. 398 (1968)

Rosen
v.
Slough, Appellant.

Superior Court of Pennsylvania.

Argued March 20, 1968. June 13, 1968.

Before WRIGHT, P.J., WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING, and HANNUM, JJ.

Henry J. Lotto, for appellant.

Alan Schwartz, with him Manchel, Lundy & Lessin, for appellee.

OPINION BY JACOBS, J., June 13, 1968:

In this negligence action involving a right-angled intersection collision the plaintiff secured a jury verdict in the amount of $500.00. On plaintiff's motion the court below granted a new trial limited to damages and the defendant appealed.

Two questions present themselves for our consideration: Did the court below abuse its discretion in granting a new trial because the verdict was inadequate? If it did not, was this a proper case to limit such a new trial to a consideration of damages only?

The collision occurred on January 25, 1961 at the intersection of Thirty-Third Street and Lancaster Avenue in Philadelphia at 9:30 a.m. on a clear dry day. The sixty-eight year old plaintiff was going north on Thirty-Third Street and the defendant was driving east on Lancaster Avenue. The intersection was controlled by a traffic light and each party claims that he had the green light. Plaintiff's automobile was hit on the left side toward the rear and it was agreed that the damages to the automobile were $117.00. At the time of trial the plaintiff was senile and his testimony was presented through a discovery deposition that had been taken on August 13, 1962 by the defendant. According to plaintiff's deposition, he had no visible personal injuries, but immediately after his car came to rest he felt pain in his back and groin. Plaintiff consulted a physician. The physician testified at trial and stated that on the initial examination plaintiff showed indications of having a left inguinal hernia. He sent the plaintiff to a surgeon on January 30, 1961. The surgeon operated on the plaintiff for a hernia for which plaintiff was hospitalized. In the opinion of both the physician and the surgeon the hernia was caused by the injuries received in the collision. The physician also treated plaintiff for a back sprain, in twelve office visits, for which he charged $65.00. The hospital bill was $361.00 and the surgeon's bill was $250.00. The plaintiff was away from his work for thirteen weeks and his average earnings per week were $87.50.

Defendant called a physician who had examined the plaintiff on June 19, 1961. He testified that in his opinion the hernia was not caused by the accident. The deposition of a passenger in the defendant's automobile was introduced. In the deposition he stated that he was unable to recall the details of the accident or who had the green light. Apparently this witness had made a statement in 1961 which was shown to him at the conclusion of his deposition. He said that this did not refresh his recollection with regard to the light. He then read this statement into the deposition but upon objection by plaintiff's counsel at the trial the court would not permit that part of the deposition to be read to the jury. The defendant contends that the lower court erred in refusing to allow this statement to be read into the evidence and in permitting the deposition of the plaintiff to be used at the trial because it was not shown that the plaintiff was competent at the time he made the deposition or incompetent at the time of trial. The defendant voiced his objections at the trial of the case but never filed a motion for a new trial.

The court below considered the award "patently inadequate" because even if the jury disallowed the hernia, the verdict was considerably less than the out-of-pocket expenses incurred otherwise, and allowed nothing for pain and suffering.

An order awarding a new trial for inadequacy of verdict will not be reversed on appeal unless there has been clear, palpable or gross abuse of discretion. Bedillion v. Frazee, 408 Pa. 281, 183 A.2d 341 (1962). Whether or not a new trial for inadequacy of the verdict should be granted or refused is a matter for the sound discretion of the trial court. Takac v. Bamford, 370 Pa. 389, 88 A.2d 86 (1952). In the absence of a clear, palpable or gross abuse of discretion we should not reverse. When we examine the testimony before the court we cannot find that the court abused its discretion in awarding a new trial. The plaintiff was away from work for thirteen weeks. There is no denial that he did have a back sprain. The physician treating his back did not discharge him until March 23, 1961. The verdict was considerably less than his out-of-pocket expenses. There was no clear indication that this was a compromise verdict as in Elza v. Chovan, 396 Pa. 112, 152 A.2d 238 (1959). In view of these facts we cannot find that the lower court abused its discretion.

We do not, however, agree with the lower court that this is a proper case for a limited new trial. Although a new trial limited to damages could not be granted at common law, our courts have permitted such limited new trials under certain specific circumstances.

The power to grant limited new trials should be exercised cautiously, however. Troncatti v. Smereczniak, 428 Pa. 7, 235 A.2d 345 (1967). Our cases indicate that there are two situations where the grant of a new trial limited to damages is proper. First, in Cason v. Smith, 188 Pa. Super. 376, 385, 146 A.2d 634, 638 (1958); Berkeihiser v. DiBartolomeo, 413 Pa. 158, 162, 196 A.2d 314, 315-16 (1964); and in Troncatti v. Smereczniak, 428 Pa. at 9, 235 A.2d at 346, it is said: "``"Where the question of liability has been fairly determined and defendant makes no complaint in respect thereto, it is not improper to eliminate the issue of negligence from further consideration by the jury at the new trial."'" Second, "when one of the issues is so definitely and conclusively settled by a verdict that reasonable men could not be expected to arrive at a different conclusion, it is not necessary to retry such issue." Friedman v. Matovich, 191 Pa. Super. 275, 280, 156 A.2d 608, 611 (1959); see also Berkeihiser v. DiBartolomeo, 413 Pa. at 162, 196 A.2d at 315. The case before us does not meet the requirements of either situation. The defendant, who is the appellant in this case, alleges trial errors going directly to the matter of liability^[1] and the evidence is so conflicting that reasonable men could easily differ on the liability. This case not having fallen within one of the exceptions enumerated above, the court below exceeded its power when it limited the grant of the new trial. A new trial is granted generally.

The order of the court below is modified by striking out the limitation of the new trial and as so modified is affirmed.

NOTES

[1] These objections are properly before us to show that defendant complains on the liability issue and that the order of a limited new trial was error. They are not before us for any other purpose and will not be passed upon by us. The court below was not given an opportunity to pass upon them in a motion for new trial which fairness and orderly procedure require. See Paul v. Dwyer, 410 Pa. 229, 188 A.2d 753 (1963) and Magaro v. Metropolitan Edison Co., 130 Pa. Super. 323, 197 A. 550 (1938).