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ELZA v. CHOVAN (05/28/59)

May 28, 1959

ELZA
v.
CHOVAN, APPELLANT.



Appeal, No. 76, March T., 1959, from order of Superior Court, April T., 1958, No. 87, reversing order of Court of Common Pleas of Allegheny County, Oct. T., 1953, No. 3300, in case of Hansford W. Elza v. Joseph A. Chovan. Judgment affirmed; reargument refused July 1, 1959. Same case in Superior Court: 187 Pa. Super.Ct. 275. Trespass for personal injuries. Before SOFFEL, J. Verdict for plaintiff in the sum of $950; plaintiff's motion for new trial granted, before MARSHALL, SOFFEL and ALPERN, JJ., opinion by SOFFEL, J. Defendant appealed to Superior Court which reversed order. Appeal to Supreme Court allowed.

COUNSEL

Theodore M. Tracy, with him Edward O. Spotts, for appellant.

Thomas F. Weis, with him Weis & Weis, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.

Author: Bok

[ 396 Pa. Page 114]

OPINION BY MR. JUSTICE BOK

Plaintiff was the passenger on a motorcycle. Following its collision with an automobile a jury held both drivers negligent and awarded plaintiff $950.

The lower court gave plaintiff a new trial for inadequacy, but the Superior Court reversed and entered judgment on the verdict. An allocatur to this court was allowed.

The reason given by the court below for its action is this: "We are here confronted with a difficult decision. The court may well accept either side of the coin. The plaintiff failed to tell the truth as to his injuries and the jury apparently did not believe him. But notwithstanding this fact and eliminating any award for pain and suffering and the amount for the services of Dr. Strassley, who treated his back, the plaintiff did prove damages in the amount of $1375. The jury awarded him $950. This sum is not adequate and a new trial will be granted."

The general rule in such cases is: "The granting or refusal of a new trial because of the inadequacy of the verdict is a matter peculiarly within the discretion of the trial court, and it is the rule in this State that an appellate court will not reverse the action of the court below unless the verdict is so unreasonable as to bring conviction that it was influenced by partiality or prejudice or some misconception of the law or the evidence in the case ... and establish a clear case of wrong and injustice in the court below": Zamojc v. Fisher, 127 Pa. Superior Ct. 171, 193 A. 315 (1937); Takac v. Bamford, 370 Pa. 389, 88 A.2d 86 (1952).

[ 396 Pa. Page 115]

It is the province of the jury to assess the worth of the testimony and to accept or reject the estimates given by witnesses. If the verdict bears a reasonable resemblance to the proven damages, it is not the function of the court to substitute its judgment for the jury's: Paustenbaugh v. Ward Baking Co., 374 Pa. 418, 97 A.2d 816 (1953); Perzak v. Coulter, 171 Pa. Superior Ct. 475, 90 A.2d 256 (1952).

The mere fact that a verdict is low does not mean that it is inadequate. Nominal damages have been upset: Bradwell v. Railway Co., 139 Pa. 404, 20 A. 1046 (1890); Spence v. Stockdale Borough, 57 Pa. Superior Ct. 622 (1914), and have been allowed to stand: Palmer v. Leader Publishing Co., 7 Pa. Superior Ct. 594 (1898).

The same is true of low but substantial verdicts. In Stevens v. Frank, 151 Pa. Superior Ct. 222, 30 A.2d 161 (1943), a judgment of $200 for a wife and nothing for her husband was affirmed. In Ewing v. Marsh, 174 Pa. Superior Ct. 589, 101 A.2d 391 (1953), a verdict of $3000 was upheld, the court saying: "This was low, but certainly not a nominal verdict such as would give rise to an inference of mistake or partiality by the jury." And in Alleva v. Porter, 184 Pa. Superior Ct. 335, 134 A.2d 501 (1957), where the verdict was low but substantial, the grant of a new trial was reversed and judgment was entered on the verdict.

There is no magic in amounts but only in the circumstances, and compromise verdicts are both expected and allowed: Karcesky v. Laria, 382 Pa. 227, 114 A.2d 150 (1955). The compromise may arise out of damages or negligence or the balance of evidence concerning either or both, and the grant of a new trial may be an injustice to the defendant rather than an act of justice to the plaintiff: see Patterson v. Palley Mfg. Co., 360 Pa. 259, 61 A.2d 861 (1948).

[ 396 Pa. Page 116]

Merely because the verdict is less than the expenses is no criterion. In Crow v. Deems, 163 Pa. Superior Ct. 591, 63 A.2d 119 (1949), the grant of a new trial was affirmed when the verdict was $900 and the expenses about $2900, and the Superior Court cited Pretka v. Wilson, 325 Pa. 491, 190 A. 722 (1937) in support; but in Pretka the verdict was $2750 and the special damages $1600 plus future expenses. On the other hand, in Carpenelli v. Scranton Bus Co., 350 Pa. 184, 38 A.2d 44 (1944) the refusal of a new trial was affirmed where verdicts and expenses were about the same.

It is clear that the court below was in error when it said: "Judged solely from the proven out-of-pocket expenses and failure of the jury to award any sum for pain, suffering, and inconvenience, this verdict is inadequate." The basis of judgment cannot be solely the ratio of verdict to expenses: there is a plethora of other factors, such as the plaintiff's proven untruths in the case at bar. One of them concerned the amount of time that he lost from work, and since the jury could have felt that what time he actually did lose was not due to the accident the court misspoke when it said flatly that "plaintiff did prove damages in the amount of $1375."

Plaintiff also lied about his back. During his testimony he denied previous trouble with it, but records of the Veterans' Administration showed that in July, 1946, he complained of back trouble for several years. The jury were at liberty to find either that he lied in 1946 in order to cheat the government and get a pension or that he lied on the stand in order to cheat the defendant and get damages. And the jury might have believed that Dr. Strassley's bill for sixty-eight visits over four years, when plaintiff was away from work only eleven weeks, was exorbitant.

[ 396 Pa. Page 117]

This verdict was obviously a compromise. The jury sent a written note to the trial judge saying: "Albert N. Elza versus Joseph Chovan, our verdict is negligence on both sides. In Hansford W. Elza versus Joseph Chovan can we throw this out of court?" After receiving proper instructions, the jury retired and came back with its final verdict as recorded.

While the appellate courts tend to uphold the trial courts, they do not abdicate their powers of review: Decker v. Kulesza, 369 Pa. 259, 85 A.2d 413 (1952); Ropele v. Stewart, 185 Pa. Superior Ct. 522, 137 A.2d 895 (1958). It is their duty to review the evidence to see whether there was a clear case of injustice: Nikisher v. Benninger, 377 Pa. 564, 105 A.2d 281 (1954).

In discharging that duty some trademark must appear by which to distinguish cases of clear injustice from those in which the court below has merely ousted the jury and moved into their seats. Certainly the trial courts should give reasons for what they do when the issue is the weight of the evidence or the interests of justice: Belletiere v. Philadelphia, 367 Pa. 638, 81 A.2d 857 (1951).

Trial courts cannot avoid gross abuses of discretion or convince us that a verdict is so unreasonably low as to present a clear case of injustice without using words of appropriate urgency and decisiveness.

In Crouse v. Smith, 381 Pa. 431, 113 A.2d 223 (1955), the trial judge called the verdict "miserly" and "patently insufficient". In Schwartz v. Jaffe, 324 Pa. 324, 188 A. 295 (1936), we called the verdict "patently insufficient". In Bradwell v. Railway Co., supra (139 Pa. 404), nominal damages were described as "inconsistent and unreasonable" and "a travesty of justice". In Richards v. Beaver Valley Traction Co., 105 Pa. Superior Ct. 248, 161 A. ...


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