Appeals from order of Superior Court, April T., 1972, Nos. 88 and 89, affirming order of Court of Common Pleas, Civil Division, of Allegheny County, Jan. T., 1969, No. 690, in case of Margaret R. Palmer, and Helen E. Stroech and Carl P. Stroech, her husband v. Foss Motors, Inc., a corporation, and Hurtis Moses v. Margaret R. Palmer.
Thomas J. Reinstadtler, with him Egler, McGregor & Reinstadtler, for appellant.
H. Fred Mercer, with him H. Fred Mercer, III, and Mercer, Buckley & Scully, for appellees.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Nix.
The question presented by this appeal is whether the trial court abused its discretion in failing to accept and mold the verdicts returned by the jury.
These actions in trespass were instituted to recover for personal injuries and property damage resulting from a two-car accident which occurred on November 29, 1967, in Allegheny County. The exact scene of the collision was the intersection of Route 8 and Burchfield Rd. in Shaler Township. Mr. Hurtis Moses was operating his vehicle in a southerly direction on Route 8 when it came into contact with a vehicle being operated by Ms. Margaret Palmer which had been proceeding in an easterly direction on Burchfield Rd. and was in the process of negotiating a left-hand turn onto Route 8. Both vehicles were damaged and Ms. Palmer and her passenger, Mrs. Helen E. Stroech sustained personal injuries. Ms. Palmer and Mr. and Mrs. Stroech commenced an action against Foss Motors, Inc., a corporation, and Mr. Moses. The claim of Margaret Palmer was subsequently severed and she was joined as an additional defendant. At the close of all of the evidence a judgment of non-suit was granted as to Foss Motors, Inc. and the cases of Palmer v. Moses and Mr. and Mrs. Stroech v. Moses and Palmer were submitted to the jury. The jury returned three sets of verdicts and each time the trial judge refused to accept them on the ground that they were not in accordance with his instructions. While the jury was deliberating for a fourth time the court granted the motion of Palmer for the withdrawal of a juror and declared a mistrial. The request of the appellant, Hurtis Moses, to accept, record and mold the verdicts was denied. The Superior Court affirmed the action of the court below with two judges dissenting. Palmer v. Moses, 224 Pa. Superior Ct. 276, 303 A.2d 525 (1973). We granted allocatur and now reverse.
The appellees, Margaret R. Palmer, Helen E. Stroech and Carl P. Stroech, first contend that since no specific verdict was entered there was no judgment, therefore, an appeal at this time does not lie. See Bartkewich v. Billinger, 430 Pa. 207, 241 A.2d 916 (1968); Straw v. Sands, 426 Pa. 81, 231 A.2d 144 (1967); Lynch v. Metropolitan Life Insurance Co., 422 Pa. 488, 222 A.2d 925 (1966); Weingreen v. Gomberg, 416 Pa. 567, 207 A.2d 781 (1965); Menyo v. Sphar, 409 Pa. 223, 186 A.2d 9 (1962); and Simpson v. Pennsylvania Turnpike Commission, 384 Pa. 335, 121 A.2d 84 (1956). It is, however, not here contended that this is an appeal from a judgment but rather that this is an appeal from an order granting a new trial. It is well settled in this jurisdiction that in a proper case an appeal will be entertained from an order awarding a new trial. In Class and Nachod Brewing Co. v. Giacobello, 277 Pa. 530, 537, 121 A. 333, 336 (1923), we stated: "From the above review, it may be seen that an order awarding a new trial is one from which an appeal lies; but in such cases the errors complained of have been considered only when appellant alleged the order to be based on a mistake of law involving the assertion of a power which, under the circumstances attending its exercise, was not possessed by the court below, or when the court certified the precise grounds on which its award rested, or when the record plainly demonstrated that the reason claimed by appellant as causing the grant of the new trial was in fact the sole one which influenced the court below in making the order assigned as error." (Parenthetical matter deleted.) See also, City Products Corp. v. Bennett Brothers, 390 Pa. 398, 400-401, 135 A.2d 924-25 (1957); Mozino v. Canuso, 384 Pa. 220, 224, 120 A.2d 300 (1956); and Hoban v. Conroy, 347 Pa. 487, 489, 32 A.2d 769 (1943).
Here the basis for the action of the court below was quite clear: "I do believe that in view of the series of matters that have now transpired (the multiple verdict slips received) that it is impossible to say with certainty that this jury has an understanding of the problems presented to it and I therefore, grant the motion for the withdrawal of a juror." The instant case falls clearly within that category of cases where the record plainly demonstrated that the reason claimed by appellant as causing the refusal of his motion to accept, record and mold the verdict and consequently resulting in the decision to declare a mistrial and the award of a new trial was in fact the sole one which influenced the court below and it is therefore appropriate for us to entertain this appeal. Hornak v. Pittsburgh Railways Co., 433 Pa. 169, 174 n.1, 249 A.2d 312 (1969); see also Pittsburgh v. Dinardo, 410 Pa. 376, 189 A.2d 886 (1963).
During this trial the jury returned three sets of verdict slips*fn1 in a vain attempt ...