Appeal, No. 87, April T., 1958, from order of Court of Common Pleas of Allegheny County, Oct. T., 1953, No. 3300, in case of Hansford W. Elza v. Joseph A. Chovan. Order reversed.
Thomas F. Weis, with him Weis & Weis, for appellant.
Theodore M. Tracy, with him Edward O. Spotts, for appellee.
Before Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (rhodes, P.j., absent).
[ 187 Pa. Super. Page 277]
On April 23, 1953, at about 5:00 p.m., at the intersection of Freeport Road and Marion Street in East Deer Township, Allegheny County, there was a collision between a motorcycle owned and operated by Albert Elza, on which Albert's brother, Hansford Elza, was riding as a passenger, and a Hudson automobile owned and operated by Joseph Chovan. Albert and Hansford each instituted a trespass action against Joseph. At the trial the jury returned a verdict against Albert, but in favor of Hansford in the amount of $950.00. The court below granted Hansford's motion for a new trial on the ground that the verdict was inadequate. This appeal followed.
It is clear from our examination of this record that the verdict eventually entered as to Hansford's claim was a compromise. The trial judge charged the jury that Hansford had a duty to protest if the motorcycle was driven negligently. Incidentally, the motorcycle was used as a means of transporting these two brothers to and from work and they divided the expenses of its operation. Hansford's chief complaint was injury to his back. The major portion of his claim was for loss of earnings. The jury first sent a note to the trial judge inquiring, "can we throw this out of court". The trial judge then gave additional instructions to the effect that the verdict must be in favor of Hansford unless he was contributorily negligent.
Hansford presented a bill from the Citizens General Hospital in amount of $137.25. Dr. Fronduti's bill for
[ 187 Pa. Super. Page 278]
services during the hospitalization was $85.00. Hansford also presented a bill for subsequent services from Dr. Strassley in amount of $367.00, plus two back supports in amount of $20.00. His claim for loss of earnings was in amount of $125.00 per week for twelve weeks. However, Hansford had concealed from the physicians the fact, developed at the trial, that he had suffered a prior back injury. Hansford also did not tell the truth about the date of his return to work. The jury might well have allowed little or none of Dr. Strassley's bill, and undoubtedly felt that the claim for loss of earnings was exaggerated.
The function of an appellate court in a case of this nature has been outlined by Mr. Chief Justice JONES in the case of Glaister v. Eazor Express, 390 Pa. 485, 136 A.2d 97. While the appellant has a heavy burden, and the appellate court usually supports the action of the trial court in granting or refusing a new trial, we are not to entirely abdicate our reviewing function. Our inquiry on such an appeal should be whether the court below abused its discretion in holding that the verdict in question was inadequate. We have concluded in the instant case that this inquiry must be answered in the affirmative.
As pointed out by Mr. Justice BELL in Karcesky v. Laria, 382 Pa. 227, 114 A.2d 150, the jury is not required to believe everything that a litigant or his witnesses say, even though their testimony is uncontradicted. This case and other relevant cases were considered by Judge WOODSIDE in his opinion for this court in Krusinski v. Chioda, 186 Pa. Superior Ct. 419, 142 A.2d 780, our most recent discussion of the subject, in which we set aside the grant of a new trial on the ground of inadequacy of the verdict. ...