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GIBSON v. HALLACHER. (GIBSON (08/26/54)

: August 26, 1954.

GIBSON
v.
HALLACHER. (GIBSON, ADMR. V. HALLACHER)



COUNSEL

William W. Hafer, York, for appellant.

Raymond R. Smith, Judson E. Ruch, John T. Miller and Luria & Still, York, for appellee.

Before Rhodes, P. J., and Ross, Gunther, Wright, Woodside and Ervin, Jj.

Author: Ross

[ 176 Pa. Super. Page 540]

ROSS, Judge.

On January 18, 1950 Wayne C. Gibson was killed in an automobile collision while a passenger in an automobile driven by the defendant, Victor E. Hallacher, Jr. This action of trespass was instituted by Charles T. Gibson, administrator of the dead boy's estate. The case was tried before a jury, which returned a verdict for plaintiff for 'funeral expenses plus $1,000.00', a total of $1,387. The plaintiff's motion for a new trial on the ground of inadequacy of the verdict was granted by the court below, and defendant appealed to this Court.

The granting of a new trial for inadequacy of the verdict is a matter for the sound discretion of the court below, Fabel v. Hazlett, 157 Pa. Super. 416, 43 A.2d 373, and in the absence of a gross abuse of such discretion, we will not reverse. Olson v. Swain, 163 Pa. Super. 101, 60 A.2d 548; Barker v. Reedy, 167 Pa. Super. 222, 74 A.2d 533; Goodman & Theise, Inc. v. Scranton Spring-Brook Water Service Co., 352 Pa. 488, 489, 43 A.2d 111; Schwartz v. Jaffe, 324 Pa. 324, 188 A. 295. Consequently, the question before us is not whether in our opinion the verdict of the jury was inadequate, but solely whether the trial court committed

[ 176 Pa. Super. Page 541]

    a gross abuse of discretion in granting a new trial because in its opinion it was inadequate. When a trial court grants a new trial on the ground of inadequacy of verdict it does so in the interest of justice. That is the only conclusion to be drawn, whether so stated or not. Moreover, in this case it is stated in the opinion of the lower court: '* * * in order to see that justice is done the court en banc feels that a new trial should be awarded.'

The negligence of the defendant is admitted, and there is no suggestion that the deceased did anything that contributed to the accident or failed to do anything that might have prevented it. At the time of his death he was 18 years of age. His first job, when he was 16 years of age, was in a silk mill, where he earned $45 a week. Two months before his death he changed his occupation to that of an apprentice with a glass-cutting company at an hourly rate of 60 cents, which a few days before his death was increased to 63 cents. He left the silk concern to go with the glass company because he felt that he would have better chances for advancement and 'make more money in the end'. His general condition of health was good and he had a life expectancy of 43.53 years. Certainly on the record before us we cannot find that there was a 'gross abuse of discretion' by the court below in granting a new trial on the ground of inadequacy of the verdict.

Order affirmed.

WOODSIDE, J., files dissenting opinion.

HIRT, J., absent.

WOODSIDE, Judge (dissenting).

In my opinion neither courts nor counsel gave sufficient attention to the measure of damages applicable to this case. Had they done so I believe the lower court would not have granted a new trial, nor would this court have affirmed.

[ 176 Pa. Super. Page 542]

Although no mention was made in the trial, the briefs, or the opinions as to what damages were under the so-called 'Death by Wrongful Act Statute' and what under the 'survival Statute', nevertheless, from the record, including the plaintiff's complaint, it is clear that the $1,000 was awarded under the 'Survival Statute.'*fn1 The $378 award for funeral expenses is not our concern in this appeal.

It was not until 1937 that we had a constitutional Survival Act in Pennsylvania under which an action such as this could be brought,*fn2 and the measure of the damages which can ...


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