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DACCORSO v. GEORGE F. OTTO CORPORATION (11/09/59)

November 9, 1959

DACCORSO
v.
GEORGE F. OTTO CORPORATION, APPELLANT.



Appeals, Nos. 151, 152 and 153, March T., 1959, from order of Court of Common Pleas of Washington County, Feb. T., 1958, No. 93, in case of Frank Daccorso et al. v. George F. Otto Corporation et al. Order affirmed. Trespass for wrongful death and survival action. Before CUMMINS, J. Verdict for plaintiffs in amount of $8565; plaintiffs' motion for new trial granted and order entered. Defendants appealed.

COUNSEL

Thomas L. Anderson, for appellants.

George I. Bloom, with him Bloom, Bloom & Yard, for appellees.

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

Author: Bok

[ 397 Pa. Page 328]

OPINION BY MR. JUSTICE BOK

Plaintiffs' decedent died in the accident for which they later brought suit, as administrators, under the applicable legislation for both wrongful death and survival. At trial the action for wrongful death was abandoned.

[ 397 Pa. Page 329]

The jury found for plaintiffs in the sum of $8565, which the court below has set aside by ordering a new trial. The court has effectively limited its action to the single reason of inadequacy, and has given the following explanation: "We are convinced that in view of all the testimony offered by the plaintiffs and not contradicted in any way by the defendants on the question of damages, that the jury did not place upon this testimony the proper value or give it the serious consideration it was their duty to give under the law; therefore, we can only conclude that their verdict shows that they were neglectful, indifferent and capricious. We conclude further from a review of the record that the amount awarded the plaintiffs is grossly inadequate and the amount is patently insufficient. This verdict also does not in any way bear a reasonable resemblance to the damages which were proven and it cannot in justice to the plaintiffs' cause be allowed to stand."

The court also called the verdict "shocking and absurd" and hence has justified its action under Elza v. Chovan, 396 Pa. 112 (1959), 152 A.2d 238. These words are indeed "of appropriate urgency and decisiveness."

There is nothing in the court's opinion to suggest that the verdict was a compromise and hence to be upheld under Karcesky v. Laria, 382 Pa. 227 (1955), 114 A.2d 150, and Patterson v. Palley Manufacturing Co., 360 Pa. 259 (1948), 61 A.2d 861. The case rather falls within the rule of Krusinski v. Chioda, 394 Pa. 90 (1958), 145 A.2d 681, where we quoted the statement of Chief Justice KEPHART in Schwartz v. Jaffe, 324 Pa. 324 (1936), 188 A. 295: "The power to set aside a verdict on the ground of inadequacy may be exercised whenever it appears to the court below that the amount is patently insufficient; an appellate

[ 397 Pa. Page 330]

    court will not interfere with its exercise of discretion in this matter ...


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