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PAUSTENBAUGH v. WARD BAKING COMPANY (06/26/53)

June 26, 1953

PAUSTENBAUGH, APPELLANT,
v.
WARD BAKING COMPANY



Appeal, No. 81, March T., 1953, from judgment of Court of Common Pleas of Allegheny County, Oct. T., 1949, No. 2457, in case of Thomas A. Paustenbaugh v. Ward Baking Company. Judgment affirmed.

COUNSEL

Louis Vaira, with him Esler W. Hays, for appellant.

Irwin M. Ringold, for appellee.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Arnold

[ 374 Pa. Page 419]

OPINION BY MR. JUSTICE ARNOLD

In this action of trespass for damages for personal injuries and property damage, the jury rendered a verdict of $3000 for the plaintiff, and he appeals from the judgment entered thereon after refusal of his motion for a new trial.

The action arose out of a collision between plaintiff's automobile and defendant's truck on July 22, 1949.

[ 374 Pa. Page 420]

Liability was admitted by the defendant, and the sole question before the jury was the amount of damages suffered and recoverable by plaintiff.

Plaintiff alleges as grounds for a new trial that: (1) the verdict was inadequate; (2) the court erred in refusing his motion for withdrawal of a juror and continuance, based upon remarks made by plaintiff's wife (who was also a witness for him) to three of the jurors; (3) he did not receive a fair and impartial trial; (4) defendant prejudiced plaintiff's case by improper questions asked of plaintiff and his witnesses on cross-examination.

(1) Plaintiff asserts that his proof showed damages, exclusive of pain and suffering, inconvenience, and loss of earning power, in the amount of $3232.55: consisting of hospital and medical expense ($1091.62), loss of car ($450.00), and loss of earnings ($1690.93). At the outset, it is to be noted that the record does not sustain his position in this regard. The payroll clerk of the plaintiff's employer did testify that he had lost wages of $1690.93, but it was not established that the days lost, except for some 57 days, were the result of the accident. In addition, he was in another accident in November, 1950, after which he was off work for 12 days. The loss-of-car item was his own estimate of depreciation resulting from the collision, based on his own estimates of its value before and after. The total repair bill was $109.70, and the total damage that can be said actually to have been established would be some $1,800.

The guide for determining whether a new trial should be granted for inadequacy of verdict has often been set forth in the cases. "Where the trial court grants a new trial on the ground of inadequacy the appellate courts will not interfere in the absence of a

[ 374 Pa. Page 421]

    gross abuse of discretion... When the trial court refuses relief against an allegedly inadequate verdict the appellate court will exercise even greater caution in reviewing its action. It was said by President Judge RICE in Palmer v. Leader Publishing Co., 7 Pa. Superior Ct. 594, 598: 'The power to grant a new trial because of the inadequacy, as well as the excessiveness, of the damages allowed by the jury is undisputed, but this power is much more rarely exercised in the former than in the latter case. If such caution is properly exercisable by the trial court, much more cautiously should an appellate court proceed where the trial court, after a conscientious review of the case, has refused to set aside the verdict. No mere difference of opinion, nothing short of a clear conviction, compelled by the evidence, that the jury must have been influenced by partiality, passion or prejudice or by some misconception of the law or the evidence, will justify an appellate court in declaring that the trial court was guilty of an abuse of discretion in refusing a new trial for inadequacy of damages where neither the evidence in the particular case nor the law applicable thereto furnished any definite standard by which they might be measured, and the jury had no other guide in arriving at the amount to be awarded but pure conjecture.'": Coleman v. Pittsburgh Coal Co., 158 Pa. Superior Ct. 81, 85, 43 A.2d 540. "Indeed, it would seem that it is only where the verdict was merely nominal that the appellate courts have looked askance on a refusal of the ...


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