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NIKISHER v. BENNINGER (05/25/54)

May 25, 1954

NIKISHER, APPELLANT,
v.
BENNINGER



Appeals, Nos. 124 and 139, Jan. T., 1954, from judgments of Court of Common Pleas of Lehigh County, Jan. T., 1953, No. 166, in case of David Nikisher, a minor, by Julius Nikisher et ux., his guardians, and Julius Nikisher et ux. v. Carl H. Benninger. Judgments reversed. Trespass for personal injuries. Before DIEFENDERFER, J. Verdicts for parent-plaintiffs in the sum of $5,000, and in the sum of $1,500 for minor-plaintiff; minor-plaintiff's motion for new trial refused and judgment entered on the verdict, before BARTHOLD, P.J., specially presiding, and HENNINGER, P.J., opinion per curiam. Plaintiffs appealed.

COUNSEL

Laurence H. Eldredge, with him Martin H. Philip and Philip & Philip, for appellants.

Boyd H. Walker, with him Walker & Walker, for appellee.

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

Author: Stearne

[ 377 Pa. Page 565]

OPINION BY MR. JUSTICE ALLEN M. STEARNE

These appeals are from the refusal of the court below to grant a new trial in a trespass action arising from an automobile accident. David Nikisher, a minor, was a guest passenger in the automobile of Carl H. Benninger, the defendant. The suit is by the guardians of the minor. Julius Nikisher and Thelma B., his wife, parents of the minor, have joined in the suit in their own right. The guardians of the minor appeal because of the inadequacy of his verdict, $1,500. The parents, while entirely satisfied with the amount of their verdict, $5,000, appeal, according to their counsel, as "a purely formal proceeding for the purpose of conferring

[ 377 Pa. Page 566]

    jurisdiction upon [the Supreme] Court". Counsel for appellants, in their supplemental brief, correctly recite the procedural history: "... a judgment of $5,000 was entered for the parents plaintiffs and a judgment of $1,500 for the minor plaintiff. Initially, one appeal was taken from the $1,500 judgment, but no separate appeal was taken from the $5,000 judgment because there was no complaint as to it. When the original appeal was orally argued before this Court on January 13, 1954, the question was raised from the Bench that the Court did not have jurisdiction of the single appeal from the $1,500 judgment. On January 14, 1954 this Court remitted the appeal to the Superior Court. Thereafter, on January 20th, the parents plaintiffs appealed to this Court from the $5,000 judgment and the case was docketed in this Court as of January Term, 1954, No. 124. A petition was then filed in the Superior Court reciting this fact and calling attention to Section 5 of the Act of May 5, 1899, P.L. 248 as amended and to Section 2 of the Act of June 11, 1935, P.L. 301. On February 4, 1954, the Superior Court certified the appeal on the $1,500 judgment back to the Supreme Court of Pennsylvania for consideration and decision,..."

The sole question is whether the court below abused its discretion in refusing to grant a new trial. While counsel for appellee state in their paper book "as far as the issue of defendant's negligence was concerned, it was seriously disputed" no appeal has been taken by appellee. Liability of defendant must, therefore, be regarded as conceded.

The minor appellant undoubtedly assumes a heavy burden when he presses for a new trial on the ground of inadequacy of the verdict. In Carpenelli v. Scranton Bus Company, 350 Pa. 184, 38 A.2d 44, the rule is accurately stated by Mr. Justice HORACE STERN (now

[ 377 Pa. Page 567]

Chief Justice) (p. 187): "When a court grants a new trial on the ground of inadequacy of the verdict an appellate court, in the absence of a gross abuse of discretion, will not interfere: Schwartz v. Jaffe, 324 Pa. 324, 188 A. 295; Pretka v. Wilson, 325 Pa. 491, 190 A. 722. When a trial court refuses to grant relief against an allegedly inadequate ...


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