Appeals, Nos. 131, 132, 133 and 138, Jan. T., 1952, from order of Court of Common Pleas of Northampton County, Nov. T., 1949, No. 26, in case of Joseph Milan et ux., Aaron E. Hinkel et ux., Alex J. Horvath et ux and Aaron E. Hinkel, Exr., Estate of William H. Hinkel, deceased, v. City of Bethlehem. Order affirmed.
Everett Kent, with him Milton J. Goodman, for appellants.
Daniel L. McCarthy, City Solicitor, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE JONES
The several plaintiffs, as owners and occupiers of four separate properties in Lower Saucon Township, Northampton County, respectively sued the City of Bethlehem in trespass upon similar causes of action to recover damages for injury to their properties through the defendant city's maintenance of a nuisance upon a tract of land which it owns in Lower Saucon Township in proximity to the plaintiffs' properties. The defendant acquired its property, consisting of eighty-eight acres, in 1942, subsequent to the plaintiffs' acquisitions. Thenceforth, and continuously
thereafter until the institution of the instant suit in 1949, the city maintained on its property a dump for the disposal of garbage for its own municipal purposes. The jury returned money verdicts for the respective plaintiffs on the four separate causes of action. The defendant filed motions for judgments n.o.v. and for a new trial. The court below, deeming that the plaintiffs had, beyond question, "produced ample evidence from which the jury could find that defendant was maintaining a nuisance and the plaintiffs were injured thereby", refused the defendant's motion for judgments n.o.v. From that action, the defendant has not appealed. It must, therefore, be taken as established for present purposes that the defendant's use of its land constituted a nuisance to the plaintiffs' pecuniary hurt. The court en banc did, however, grant the defendant's motion for a new trial on the ground that the learned trial judge erred in his charge to the jury with respect to the applicable measures of damages. From that order, the plaintiffs have severally appealed. Ordinarily, such a burden is a very heavy one.
In Bellettiere v. Philadelphia, 367 Pa. 638, 81 A.2d 857, our present Chief Justice made a thorough and discriminating review of our cases involving appeals from the granting of new trials. After noting that the definite principles governing the scope of appellate review in such circumstances had been formulated in Class & Nachod Brewing Co. v. Giacobello, 277 Pa. 530, 121 A. 333, Mr. Justice STERN quoted with approval (p. 642) the following rule laid down in the Giacobello case, -- "'whenever the reason or reasons assigned [for granting a new trial] involve the exercise of discretion, the order of the trial court will not be interfered with unless a palpable abuse of power appears.'" Continuing, Mr. Justice STERN observed that "This statement, at least in substance, has been reiterated and applied
in a great number of subsequent cases in this court" and cited in marginal footnote eighteen of the more recent of such cases. He further noted that "We have also said that 'The presumption is that the trial court was justified in granting a new trial even when the reason given therefor is an insufficient reason unless the court expressly states that it is the only reason': [citing cases]." The rule was then succinctly restated in the Bellettiere case (pp. 643-644) as follows: "... an order awarding a new trial will not be reversed on appeal unless a palpable abuse of discretion on the part of the court below is clearly shown, or unless an erroneous rule of law which in the circumstances necessarily controls the outcome of the case is certified by the court below as the sole reason for its action." In the instant case, the court below has certified that the only reason for granting a new trial was the supposed error in the trial judge's instructions to the jury on the relevant measures of damages and that, otherwise, the court would have entered judgments on the verdicts for the plaintiffs. We think these instructions were proper. However, we find other error in the charge which cannot be overlooked as harmless. A new trial is, therefore, indicated. Since the case must go back for retrial, we shall take occasion to point out why the instructions of the learned trial judge on the measures of damages were correct in order that error on that score may be obviated at the new trial.
The trial judge properly left it to the jury to determine, under all of the evidence, whether the nuisance maintained by the city was temporary or permanent in character and then charged that if the jury found the nuisance to be temporary, "the measure of damage would be the diminished enjoyment or use of the properties of the ...