Appeals from order of Superior Court, April T., 1965, Nos. 228 and 283, affirming, as modified, order of Court of Common Pleas of Washington County, Feb. T., 1960, No. 17, in case of Vincent P. Troncatti v. Metro M. Smereczniak.
Paul A. Simmons, with him John W. McIlvaine, and Tempest & Simmons, for appellant.
G. H. Weaver, with him Lisle A. Zehner and August L. Sismondo, for appellees.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Dissenting Opinion by Mr. Chief Justice Bell.
The plaintiff, Vincent P. Troncatti, while working as a flagman on the highway for the Pennsylvania Department of Highways, was struck and injured by an automobile operated by the defendant. He sued for damages and at trial the jury awarded him $9,846.94. The defendant filed motions for judgment notwithstanding the verdict or for a new trial. In support of the last mentioned motion, the following reasons were assigned: "1. The verdict was against the evidence.
. The verdict was against the weight of the evidence. 3. The verdict was against the law. 4. The verdict was against the charge of the Court. 5. That in the interest of Justice a new trial should be allowed. 6. That the verdict was grossly excessive."
The court en banc dismissed the motion for judgment n.o.v., but set aside the verdict as being grossly excessive and ordered a new trial limited to the question of damages. Both parties appealed to the Superior Court, which subsequently set aside the order of the trial court awarding a limited new trial and directed a new trial generally, 210 Pa. Superior Ct. 329, 231 A.2d 886 (1967). We granted allocatur.
The opinion of the Superior Court indicates approval of the lower court's order but ruled that our decision in Berkeihiser v. DiBartolomeo, 413 Pa. 158, 196 A.2d 314 (1964), precludes the granting of a limited new trial in an excessiveness case. No other reason is advanced in support of its order directing a new trial generally.
The granting of a new trial limited to the issue of damages was not permissible under the common law. See Farrar v. Wheeler, 145 F. 482 (1st Cir. 1906); May Dep't Stores Co. v. Bell, 61 F. 2d 830 (8th Cir. 1932); Annot., 85 A.L.R. 2d 9, 19 (1962). However, in the interest of justice and in order to expedite the final disposition of litigation, Pennsylvania and most other jurisdictions have wisely adopted a rule permitting such limited new trials under certain specific circumstances. While the power to grant a limited new trial should be cautiously exercised, as we pointed out in Berkeihiser v. DiBartolomeo, supra, at 162, "'"where the question of liability has been fairly determined and defendant makes no complaint in respect thereto, it is not improper to eliminate the issue of negligence from further consideration by the jury at the new trial."'" We see no logical or common-sense reason why the above rule
should not obtain in excessiveness cases as well as in instances where the jury's verdict is inadequate, and we did not intend our decision in Berkeihiser to indicate otherwise. In fact, implicit in our orders in Gregorius v. Safeway Steel Scaffolds Co., 409 Pa. 578, 187 A.2d 646 (1963), and Nakles v. Union Real Estate Co., 415 Pa. 407, 204 A.2d 50 (1964), was approval of the granting of a limited new trial in excessiveness cases, where the ...