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TRONCATTI v. SMERECZNIAK (06/16/67)

decided: June 16, 1967.

TRONCATTI, APPELLANT,
v.
SMERECZNIAK, APPELLANT



Appeals from order of Court of Common Pleas of Washington County, Feb. T., 1960, No. 17, in case of Vincent P. Troncatti v. Metro M. Smereczniak.

COUNSEL

Paul A. Simmons, with him Tempest & Simmons, for plaintiff.

Lisle A. Zehner, for defendant.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Spaulding, J. Jacobs, J., concurs in the result. Dissenting Opinion by Hoffman, J.

Author: Spaulding

[ 210 Pa. Super. Page 330]

On March 24, 1959 at approximately 8:30 a.m., plaintiff Vincent P. Troncatti was struck by an automobile owned and operated by defendant Metro M.

[ 210 Pa. Super. Page 331]

Smereczniak. At the time, plaintiff was working as a flagman for the state department of highways. The accident, which occurred on Route 88 near Wickerhams Corner, Washington County, Pennsylvania, caused injury to plaintiff's left hip, right leg, and left hand. Although the total medical bills were $148.94, the jury rendered a verdict in favor of plaintiff for $9,846.94.

The court en banc set aside the verdict as being grossly excessive and ordered a new trial limited to damages.*fn1 Plaintiff alleges the verdict was not excessive and asks that it be reinstated. In the alternative, plaintiff seeks a remittitur. Defendant asks for a new trial on the issue of liability as well as damages.

We have frequently recognized that a trial court may grant a new trial where the verdict is so excessive as to shock the court. On appeal, the only question is whether the trial court abused its discretion. Messer v. Beighley, 409 Pa. 551, 187 A.2d 168 (1963); Kennedy v. Banbury Equipment Corporation, 202 Pa. Superior Ct. 242, 195 A.2d 832 (1963). In the instant case, plaintiff sustained leg bruises which healed in a few weeks and "loss of ability completely to straighten or extend the fourth finger and to completely bend the fourth and fifth finger."*fn2 This injury resulted in a 30% loss of gripping power to the left hand.*fn3 He lost no wages as a result of the accident and no loss of earning power was proved. The court en banc considered the verdict "one of the worst, if not the worst, instances of excessiveness in our experience as lawyers and as judges."

[ 210 Pa. Super. Page 332]

In light of the above, the court below did not abuse its discretion in setting aside the verdict as excessive.

In objecting to a limited new trial, defendant relies on Berkeihiser v. DiBartolomeo, 413 Pa. 158, 196 A.2d 314 (1964), where the Supreme Court reversed a new trial as to damages and ordered a general new trial. In that case, the jury awarded a verdict of $38,920.00 which the trial court considered excessive. Although the cases relied on by the court (Daugherty v. Erie Railroad Company, 403 Pa. 334, 169 A.2d 549 (1961); Cason v. Smith, 188 Pa. Superior Ct. 376, 146 A.2d 634 (1958)) involved inadequate verdicts and the possibility of compromise, Berkeihiser apparently precludes the granting of a limited new trial in excessiveness ...


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