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April 25, 1960


Appeal, No. 286, Jan. T., 1959, from order of Court of Common Pleas No. 2 of Philadelphia County, March T., 1956, No. 7126, in case of Charles H. Bell v. Yellow Cab Company. Order reversed.


Louis Matkoff, for appellant

James J. Leyden, with him Josephine H. Klein, and Schnader, Harrison, Segal & Lewis, for appellee.

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

Author: Jones

[ 399 Pa. Page 334]


Charles H. Bell, the plaintiff, obtained a jury's verdict against the defendant, Yellow Cab Company, in the sum of $29,150 as damages for personal injuries sustained by him as the result of his being hit by a taxicab of the defendant company on the morning of April 15, 1956, in Philadelphia. The defendant moved for judgment n.o.v. and for a new trial. The court en banc dismissed the motion for judgment n.o.v. but entered an order providing that if, within 20 days, the plaintiff filed a remittitur of so much of the verdict as exceeded $17,000, the motion for new trial would be granted. The dismissed; otherwise a new trial would be granted. The plaintiff did not file the stipulated remittitur and has appealed the consequent new trial order.

That the new trial was granted solely and exclusively because the trial court deemed the verdict excessive is not open to doubt. The fact of the remittitur alone conclusively evidences that none of the other reasons assigned by the defendant afforded any basis for the grant of a new trial. Obviously, the court could not properly have entered judgment for the plaintiff for the reduced amount, had the plaintiff filed the

[ 399 Pa. Page 335]

    remittitur required by the court, if there were other possible and undisposed of grounds assigned for a new trial. It may be postulated, therefore, that, had the court not thought the verdict excessive, it would have entered judgment thereon. That being so, the granting of a new trial, because of excessiveness of verdict, is reviewable here on the merits and not merely for a palpable abuse of discretion. See Culver v. Lehigh Valley Transit Company, 322 Pa. 503, 511, 186 A. 70. Cf. also Keefer v. Byers, 398 Pa. 447, 159 A.2d 477.

The court gave no reason for ordering a reduction of the verdict nor for the amount of the reduction, apart from summarily stating that "Considering the record as a whole this court is of the opinion that the verdict of $29,150 is excessive. Consequently, a remittitur to $17,000 is ordered and plaintiff's refusal to file said remittitur requires that a new trial be had."

No serious doubt can reasonably be thought to exist as to the taxicab driver's negligence in striking the plaintiff nor that such negligence was the proximate cause of the plaintiff's injuries. The court below was obviously of the same opinion on the question of the defendant's liability or it would not have indicated that it would enter a judgment for the plaintiff if a remittitur for the specified portion of the verdict was filed. In view of the testimony as a whole we are at a loss to understand why the court below felt impelled to order the remittitur as an alternative to the granting of a new trial. The record is replete with testimony which fully justifies the amount awarded the plaintiff.

The plaintiff's injuries consisted of shock, cerebral concussion, contusion of the right kidney, acute lumbosacral sprain, traumatic bursitis of the greater trochanter, sprain of the medial collateral ligament of the right knee, injury to the lumbo-sacral spine, and multiple contusions, abrasions and lacerations. The osteopathic physician who treated the plaintiff for his

[ 399 Pa. Page 336]

    injuries attended him 122 times (17 being house and the remaining office visits). An orthopedic physician, who had first seen the plaintiff a month after the accident and who had re-examined him shortly before the trial began (which was two and one-half years later) testified that, at the latter time, the plaintiff was still suffering intermittent pain in his right hip area, an inability to lie on his right side, pain in his back, which was aggravated by any bending, a limp in walking, that he must continuously wear a back brace or support, that he was between 30 and 40% disabled, and that this extent of disability would be permanent. The osteopathic physician testified that his disability was between 50% and 60%. There was ample testimony as to the plaintiff's pain and suffering, particularly in the lower back and spine.

At the time of the accident, the plaintiff was fifty-five years old. For ten years preceding, he had owned, and operated with the assistance of his wife, a pet and sport supply store in Philadelphia known as Bell's Sport Center. He conducted the business, which was a relatively small one, on the first floor of his residence, he and his wife living on the second floor.

In order to establish the plaintiff's loss of earnings and diminution of his future earning power, due to the injuries he suffered in the accident, he was permitted to testify, without objection from the defendant, that his net income from his business in 1955 (the year preceding the accident) was $3,982.55. He also testified, again without objection from the defendant, that his net income from the business in 1956, the year of the accident, was $1,479.78, or a net difference in income of roundly $2,500. There is further testimony that the plaintiff was forced because of his incapacity to close out his business; that he has since been unable to obtain gainful employment; and that his wife, who formerly assisted in his store, has been compelled to

[ 399 Pa. Page 337]

    take outside employment for the support of herself and husband.

On the basis of the plaintiff's injuries and damages, it is not discernible how the court below could conclude that the jury's verdict was excessive. However, the appellee correctly argues that, regardless of the question of excessiveness of verdict, we may affirm the action of the court below for any valid reason appearing of record even though it was not relied upon or adjudicated by the court as support for its new trial offer. As we have already pointed out, the record in this case conclusively establishes that excessiveness of the verdict was, in the opinion of the court below, the only valid ground for granting a new trial. Nor can the concluding sentence of the court's opinion that, "Since defendant has not appealed from our disposition of its post trial motions, we do not herein pass upon any question other than the amount of the Plaintiff's verdict" serve to imply that other reasons for a new trial possibly existed. The lower court's indicated willingness to enter judgment on the verdict, if the plaintiff assented to a reduction in the ...

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