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GROVE v. TONINECZ (03/18/59)

March 18, 1959

GROVE
v.
TONINECZ, APPELLANT.



Appeal, No. 170, April T., 1958, from judgment of Court of Common Pleas of Washington County, Aug. T., 1956, No. 513, in case of Robert B. Grove v. Paul Toninecz. Judgment affirmed.

COUNSEL

Francis H. Patrono, with him McCloskey, Patrono & McCloskey, for appellant.

Paul N. Barna, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Ervin, and Watkins, JJ. (woodside, J., absent).

Author: Hirt

[ 189 Pa. Super. Page 34]

OPINION BY HIRT, J.

The defendant, on October 18, 1954 drove his automobile upon the plaintiff's used-car lot into violent collision with a Packard automobile owned by plaintiff on which he was making repairs. The impact forced the Packard into a Cadillac automobile also owned by plaintiff, which was behind it. Plaintiff was thrown from the Packard car onto the ground and was seriously injured. At the trial the negligence of the defendant was admitted; the single issue before the jury was the total amount of the damage suffered by the plaintiff. It was agreed that the amount of damage to plaintiff's Cadillac automobile was limited to $422.68 and that $335 was the damage to the Packard. The jury found for the plaintiff in the sum of $5,000. This verdict after deduction of the agreed amounts of the damage to plaintiff's two automobiles and $30 for x-rays, reflects an allowance for personal injuries in the sum of about $4,200. The lower court overruled defendant's motion for a new trial and entered judgment on the verdict.

[ 189 Pa. Super. Page 35]

In this appeal defendant contends that the verdict was excessive. In the approach to the question, both parties agree that the only contested issue before the jury was the amount of a proper allowance to plaintiff for pain and suffering; no loss of earning power was involved. Plaintiff was not hospitalized and proof of his medical expense, including treatment on 50 occasions at the office of his doctor over a period of from 6 to 8 months, failed for want of competent evidence. We are unable to agree that the verdict was excessive, under the circumstances. The defendant has listed the disabilities which were suffered by the plaintiff according to the testimony produced by him, in substance, thus: headaches and dizziness experienced every day up to the time of trial; pains in the left hip resulting from a blow at that point; an old hernia on the right side which became "irritated"; a resulting weakness in the left inguinal area; a previously existing low back pain which was lighted up; a resulting nervousness causing sleeplessness which also aggravated a speech defect of the plaintiff suffered by him since childhood. As to the speech defect this comment of the trial judge appears in the opinion of the court en banc: "... that, during 14 years experience of the Trial Judge on the bench and his 27 years' experience as a trial lawyer, he had more difficulty understanding this plaintiff than he has experienced with any previous party or witness in court." The plaintiff had testified at length to the effect that the nervous disorder resulting from the injury had seriously worsened his speech. On that phase of the case, in the court's opinion, in refusing a new trial this statement appears: "If the jury had believed that the speech impediment of the plaintiff had been increased to the extent claimed, this one element of damage would justify the amount of the verdict returned."

[ 189 Pa. Super. Page 36]

The defendant attempted seriously to impeach plaintiff's testimony as to the damage resulting from the injuries sustained by him on October 18, 1954.*fn1 But the jury on the question of credibility saw fit to accept the plaintiff's testimony as to the nature and seriousness of his injuries on that date. In the light of the verdict we therefore have no choice other than to say that the damages awarded are not excessive. Cf. Smith v. Allegheny County, 377 Pa. 365, 105 A.2d 137.

Within the February Term, 1957, the defendant had challenged the array of jurors who were summoned for the trial of cases during the succeeding terms in the same year. After hearing, testimony taken, and argument before the court en banc, the challenge to the array was overruled on February 11, 1957. The defendant has stressed this order, alleging error, as an additional, if not the principal ground for the grant of a new trial.

The appellant contends that the system of selecting jurors in Washington County violates mandatory statutory requirements in Pennsylvania. The election of jury commissioners is governed by the Act of April 10, 1867, P.L. 62, 17 PS § 941. The Act by necessary implication, contemplates the election of one commissioner from each of the two dominant political parties. The method for the selection of jurors is prescribed by § 2 of the 1867 Act, supra, 17 PS § 942, in this language: "It shall be the duty of said jury commissioners, president judge, or ...


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