Westra v. Bennick ( 1976 )

WATKINS, President Judge:

This is an appeal from the judgment of the Court of Common Pleas of Northumberland County in a trespass action entered on an order molding a jury verdict returned in the amount of $5,516.96 in favor of the plaintiff-appellant, Henry S. Westra, and against the defendant-appellee, Michael Bennick, to the amount of $2,755.

The trespass action was instituted by Henry S. Westra and Kathryn Westra, his wife, to recover damages resulting from an accident involving a Chevrolet truck owned by Henry and operated by Kathryn and a Pontiac automobile owned and operated by Michael Bennick. Henry’s claim was for damages to his truck and for Kathryn’s medical expenses and loss of her society. Kathryn’s claim was for pain and suffering, loss of wages and permanent injury.

The accident occurred on August 9, 1970 on state highway Route 890 when the truck driven by Kathryn on her own business with a passenger, not here involved, struck a tree in trying to avoid the Bennick vehicle as it entered the highway from a private road on Bennick’s property. The Westra theory was that Michael negligently entered Route 890, causing Kathryn to veer off the highway into the tree. The Bennick theory was that Kathryn caused the accident by negligently operating the Chevrolet truck, with no fault on the part of Michael as he entered Route 890. The jury was properly instructed that any negligence on Kathryn’s part was not imputable to Henry. Toenges v. Schleihauf, 368 Pa. 247, 82 A.2d 15 (1951).

The court pointed out in his opinion that he charged as follows:

“The Trial Judge explained to the jury that there were three possible findings that could be made. (1) If it was concluded that there was no negligence on the part of Michael, the verdict should be for Michael. (2) If it was concluded that Michael was negligent and that Kathryn was also negligent, the verdict should be for Henry. (3) If it was concluded that Michael was negligent and that Kathryn was not negligent, the verdict should be for Henry and for Kathryn separately. The jury returned a verdict ‘for the plaintiff-husband, Henry S. Westra, in the amount of $5516.96’.”

At the time of the return of the verdict of the jury there was no objection made to it on the record by either party. Later, however, appellee moved the trial judge to mold the verdict of the jury to decrease the amount from $5,516.96 to $2,755, or, in the alternative, to delete all amounts attributable to any derivative claim of Henry. The court below granted a rule on plaintiffs to show cause why the verdict should not be molded and after a responsive answer, the court entered its order to mold the verdict. The court en banc in a separate opinion affirmed the action of the trial court. This appeal followed.

We have held that while it is better procedure to mold a verdict before the jury is discharged, it may be done later where the meaning is clear. In Longberry et al. v. Paul, 205 Pa.Super. 435, 211 A.2d 107 (1965), this court held:

“We find no merit in this argument for the reason that the court’s power to amend or mold a verdict is not limited to the time when it is rendered and recorded. While it is better procedure to mold the verdict before the jury is discharged, it may be done later where the meaning is clear.”

The additional question raised by this appeal is that the jury verdict was inconsistent.

Henry owned two causes of action. The first, for his own personal damages to his truck, was recoverable if Michael was negligent. His second cause of action was for his damages as Kathryn’s husband if Michael was negligent and Kathryn was not negligent. He joined Kathryn to enforce this cause of action as required by Pa.R.C.P. 2228(a) and also to enforce his own action under the permission granted by Rule 2229. See Hopkins v. Blanco, 224 Pa.Super. 116, 302 A.2d 855 (1973). In the instant case the court below held:

“However, these joinders did not affect the procedural rights which Henry and Kathryn would have for suing separately and the verdict entered ‘shall be joint, several or separate according to the nature of the right or liability therein determined’. Pa.R.C.P. 2231(d).”

The court below found that the jury in finding for the plaintiff-husband in the amount of $5,516.96 was following his instruction 2: “If it was concluded that Michael was negligent and that Kathryn was also negligent, the verdict should be for Henry”, so that the verdict was consistent but excessive. Longberry et al. v. Paul, supra.

Judgment affirmed.

JACOBS, J., concurs in the result. HOFFMAN, J., files a concurring opinion. PRICE, J., files a dissenting opinion in which SPAETH, J., joins.