wished the plaintiff to receive $ 100,000 in the survival action, but wanted each of the five defendants to pay no more than $ 20,000 for this purpose. Evidently the jury persisted in its notion that the plaintiff could recover $ 20,000 from each of five defendants. It is impossible to be certain what amounts would have been assessed had the jury applied the trial judge's instructions relating to the joint and several liability of all the defendants with its consequence that execution could issue against any individual defendant for the full amount of the verdict.
Although the jury sought to accomplish what it thought was a just result, it is clear that it failed to perform its proper function in assessing damages. It did not pronounce a verdict which is consistent as to the various defendants. Such an inconsistent verdict which manifests the jury's failure to follow the court's instructions cannot stand.
I cannot attempt to correct the inconsistency under Rule 59(e) for I have no confidence that any choice I might make is the one which the jury would have approved. Litigants are entitled to a trial by jury (cf., Byrd v. Blue Ridge Rural Elec. Cooperative, Inc., 356 U.S. 525, 537-538, 78 S. Ct. 893, 2 L. Ed. 2d 953 (1958)), and this means a jury's verdict and not the court's. It would be an invasion of the jury's function rather than the correction of a formal defect to create consistency by increasing the verdict against Subers to $ 80,000, or by increasing both verdicts to $ 100,000, as plaintiff has proposed.
The parties disagree whether the setting aside of the verdicts in the survival actions requires that the verdict in the wrongful death action must also fall. It is impossible to exclude the likelihood that the jury took into consideration its award in the survival actions when it fixed its verdict in the wrongful death action. The two are so related that the courts have held that verdicts on both claims may be considered in determining the adequacy of each, and the manner in which they may have been apportioned is of no consequence when the recipients are identical. See Siidekum, Admr. v. Animal Rescue League, 353 Pa. 408, 45 A.2d 59 (1946); Martin v. Swift, 258 F.2d 797 (3d Cir.1958). I believe that justice requires that the entire question of damages should be resubmitted for a jury's fresh determination.
There remains the question whether a new trial granted because of defects in the verdicts on damages may be limited to that question in view of the clear liability of all the defendants after judgment n.o.v. is entered for McShain.
Rule 59(a) authorizes the granting of a new trial 'to all or any of the parties and on all or part of the issues * * * for any of the reasons for which new trials have heretofore been granted in actions at law in courts of the United States * * *.'
Clearly the granting of a new trial limited to the issue of damages is appropriate where the damage issue is in no way linked with a liability issue.
In the present case there is no claim that the verdicts announced were inadequate; on the contrary, the defendants claim that they were excessive, a subject which it has not become necessary to decide. The verdicts show that the amount of damages was not the subject of compromise consideration by the jury on account of any serious doubts as to liability.
This is peculiarly a case therefore where it is proper to sever the damage question, which the jury was confused in solving, from the liability issue on which it acted decisively. It happens that it is also of practical desirability, for the evidence on damages was a relatively brief part of a two-week trial.
Even under Pennsylvania law -- which is not decisive here -- a partial new trial limited to the question of damages may be granted in these circumstances in the discretion of the trial judge.
The rule is not to be misunderstood or thought abandoned because of recent decisions in Pennsylvania which have overturned the grant of a partial new trial limited to damages. See Phelps v. Paul L. Britton, Inc., 412 Pa. 55, 192 A.2d 689 (1963); Friedman v. Matovich, 191 Pa.Super. 275, 156 A.2d 608 (1959); Mains v. Moore, 189 Pa.Super. 430, 435, 150 A.2d 549 (1959). In the Phelps and Mains cases it was clear that the jury had rendered a compromise verdict because its doubts as to liability had percolated into the conclusion on damages. Similarly, in the Friedman case the verdict in favor of the plaintiff for $ 1 was so unusual and obviously inadequate that the court declared on appeal that 'it is not realistic to assume that the jury deliberately and conclusively settled the question of liability and was confused only concerning the amount involved.' (191 Pa.Super. at 281, 156 A.2d at 611).
I shall therefore grant a new trial limited to damages in the survival claim against Subers and in the wrongful death and survival claims against all the defendants except McShain, who will be eliminated by the entry of judgment in its favor n.o.v.
And now, December 27, 1963, the motions of the defendants, John Hanigan, Individually and trading as Hanigan Construction Company, Walter Hinkle, Individually and trading as Hinkle Excavation Company, Robert R. Tyler, Individually and trading as Robert F. Tyler and Company, and Edward Thomas Subers, for a new trial and for judgment n.o.v. are severally denied.
The motion of defendant, John McShain, Inc., for a new trial is denied; the motion of defendant, John McShain, Inc., to set aside the verdict and judgment entered thereon is granted and judgment is directed to be entered in favor of defendant, John McShain, Inc., notwithstanding the verdict.
The motion of the plaintiff, Stella McSparran, Administratrix of the Estate of Ignatius Peter Kane, Deceased, to mold the verdicts and amend the judgments is denied; and the alternative motion of the plaintiff for a new trial limited to the issue of damages is granted, and such new trial shall include the claims for wrongful death and for survival.