No. 1969, 1970 October Term, 1978, Appeal from the Order in the Court of Common Pleas of Philadelphia County, Trial Division, Civil, at No. 1388 September Term, 1969.
John T. Quinn, Philadelphia, for appellant.
Alan Schwartz, Philadelphia, for appellees.
Van der Voort, Hester and Wieand, JJ. Wieand, J., files a concurring and dissenting statement.
[ 270 Pa. Super. Page 269]
This is an appeal from an order of the Court of Common Pleas of Philadelphia County granting appellees' motion for a new trial on the issue of damages.
Appellees instituted this action in trespass against appellant in September, 1969 for injuries resulting from an automobile collision on February 22, 1969.
After seven days of trial, the jury returned a verdict in favor of the appellees. Appellees, however, moved for an additur or in the alternative for a new trial limited to damages only. Appellant argued that if a new trial were granted, it should be on the issue of liability as well as damages. The lower court denied the motion for an additur but granted a new trial on the issue of damages. This appeal followed.
Appellant argues that it was clearly error to grant a new trial as to damages, given the disputed factual situation elicited below.
A lower court may grant a new trial as to damages, only where the issue of liability is not intertwined with questions of damages and the issue of liability is either not contested or has been fairly determined so that no substantial complaint can be made with respect thereto. Troncatti v. Smereczniak, 428 Pa. 7, 235 A.2d 345 (1967); Rhodes v. Hollender, 260 Pa. Super. 290, 393 A.2d 1268 (1978).
The reason for this rule is easily explained; if the liability in a case is not clear and a low damage award is returned, then it is very likely that the jury compromised the issue of liability with the amount of damages awarded. Gagliano v. Ditzler, 437 Pa. 230, 263 A.2d 319 (1970); Lininger v. Kromer, 238 Pa. Super. 259, 358 A.2d 89 (1976).
[ 270 Pa. Super. Page 270]
We must review the evidence presented below to determine whether the lower court abused its ...