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November 6, 1981



Before Spaeth, Cavanaugh, O'kicki,*fn* JJ. Cavanaugh, J., concurs the result.


This matter is an appeal from the trial court's denial of Appellant's motion for a new trial rooted in fact upon a wrongful death and survival action. Four separate cases arising out of the same motor vehicle accident were consolidated for trial and the jury subsequently handed down varying verdicts and awards for each of the four. Brian Booz, Appellee, admitted liability as to each Plaintiff. The instant appeal has been taken by only one of the Plaintiffs, Frances J. Drevers, Administratrix of the Estate of Laird J. Drevers. The central issue is: has the trial court abused its discretion in denying Appellant's motion for a new trial on grounds of inadequacy of the verdict. A logical progression toward the determination of this central issue encompasses two subissues: What is the role of the jury in a case such as this and, in addition, is the amount of the award contrary to the weight of the evidence, i.e., does the amount bear a reasonable relationship to the uncontradicted testimony in evidence?

Decedent, Laird Drevers, born June 23, 1955, was a passenger in a car driven by Peter Nathans, also a Plaintiff in one of these consolidated cases. The Nathans' car was travelling in a southernly direction on Route 39 in northern Bucks County on December 22, 1974. River Road, as Route 39 is known, is a narrow two-lane highway bounded on the east side by the Delaware Canal and on the west by a steep hillside. At approximately 1:00 a.m., the Nathans vehicle was overtaken and passed by the Appellee, Brian Booz, who was traveling southward also. Shortly thereafter, the Booz vehicle collided with a truck driven by David Smith, who was an additional Defendant in the initial proceeding. Smith was traveling in a northernly direction. Smith's vehicle then went out of control and collided head on with the Nathans car, causing injuries to Drevers which eventually resulted in his death within several hours without his regaining consciousness. River Road at the point of impact is both straight and level. An additional vehicle operated by Defendant Gregory Demusz also became involved in the incident soon afterward when, as it proceeded southward, it was unable to stop completely in time to avoid striking the stationary Nathans vehicle in the rear, and a slight contact occurred.

The jury returned various verdicts and awards including that in favor of Frances J. Drevers, Administratrix of the Estate of Laird John Drevers, deceased, and against Brian Booz alone, in the amounts of $649.00 on the wrongful death action (which is not questioned here) and in the amount of $30,000.00 on the survival action. The survival action award is challenged in this appeal as being inadequate and the trial court's discretion is being questioned by Appellant as to that court's denial of Appellant's motion for a new trial on those grounds.

The functional role of the jury in these types of cases is clear in Pennsylvania. Questions relating to the weight to be given certain evidence and the credibility of the evidence are entirely within the scope of the jury's fact finding position. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198 (1980) citing Bremmer v. Protected Home Mutual Life Ins. Co., 436 Pa. 494, 498, 260 A.2d 785, 787 (1970) and cases therein. In fact, the older cases which are at the very basis of this proposition of law have directed that the jury has an "exclusive right to determine the credibility of the testimony and the weight and effect to which it was entitled" Ray, to use, v. Philadelphia, 344 Pa. 439, 441, 25 A.2d 145(1942) as well as that this area is entirely within the province of the jury. Morris v. Pecknyo, 202 Pa Super 490, 198 A.2d 396(1964).

Therefore, although the court has a "salutory power... to award a new trial if it should deem the verdict contrary to the weight of the evidence" Thompson, supra at page 213, the power to make an award based upon testimony and credibility of that testimony is primarily with the jury. Appellant argues that the projection of future earning etc., made by the economist, Bunin, necessitated a higher verdict. Appellant is not correct in this contention. The jury is free to accept what testimony they deem the most credible.

"Expert witnesses are not the jury. They cannot take the stand and say such and such is the case and then decide the case.. any... expert testimony... is merely opinion testimony. It may be of value and it may be of no value, just as it appeals to you (the jury) (citation omitted) In all such matters the jury must be left to the free exercise of its own judgment. It cannot be bound by the opinion of the witnesses or the instruction of the court" Ray, supra, at page 441.

Some of the evidence that the jury balanced was that the decedent had been somewhat erratic in his school performance, not highly motivated in the career sense and perhaps more interested in establishing his own type of business in craft marking/wood working rather than in a financially secure job. The jury was not only free to consider this entire context of the testimony but was even required to do so in arriving at its verdict.

Appellant contends that the $30,000.00 verdict in the survival action bears no reasonable relationship whatsoever to the testimony. The trial court, in its opinion, states that had he been fact finder instead of the jury, his verdict would have been considerably greater, although it still would not have been as great as the projected figures. This speculation titillates the intellectual core, but has no bearing upon the issue to be decided herein. As discussed above, since credibility and weight are jury questions, its decision and award will be overturned only when the evidence "would compel the conviction that the jury was influenced by partiality, prejudice, or passion or was influenced by some misconception of the law or evidence." Ewing v. Marsh, 174 Pa. Super 589 (1954).

Upon a close review of the entire transcript and the brief of the parties we must agree with the trial court that there is no indication of any partiality or prejudice to any of the parties in the case nor was there any indication that the trial court rendered its verdict under a misconception of the law or evidence. The charge of the trial court was entirely adequate in explaining the applicable law. In addition, the jury asked to hear the standards repeated and did receive a second reading of it. We find that the jury adequately was apprised of the law on this issue.

The resolution of the subissues as stated in the first paragraph of this opinion, supra, now leads us into the resolution of primary issue, that being Appellants showing that the trial court abused its discretion in denying Appellant's motion for a new trial on grounds of inadequacy of the verdict.

The standard for reversal on the grounds of an inadequate verdict is:

"There should be nothing difficult about a decision to grant a new trial for inadequacy: The injustice of the verdict should stand forth like a beacon.' So long as the verdict bears a reasonable resemblance to the damages proved, it is not the function of the court to substitute its judgment for that of the jury." Foster v. McKeesport Hospital, 260 Pa. Super 485, 494 (1978) and cases cited therein.

There was great diversity in the projected amounts of future earnings of the decedent. In fact, the award granted to the Appellant did not meet the actual figure given at the lower end of the projected scale. We find, however, that with due weight accorded the entire proceeding by the jury, it is entirely possible that it felt the temperament, experience, job situation etc., of decedent would lead to the award granted rather than a higher amount. This court, as did the trial court, does not see any injustice of this verdict "shining through like a beacon." Foster, id.

There have been many cases which establish the guide for determining if the trial court abused its discretion in refusing to grant a new trial based on inadequacy of verdict grounds:

"'... When the trial court refuses relief against an allegedly inadequate verdict, the Appellate Court will exercise even greater caution in reviewing its action. Obviously the function of determining whether a jury's verdict is arbitrary and capricious lies with the trial court, and its decision will not be set aside in the absence of clear error of law or palpable abuse of discretion." Bronchak v. Rebmann, 263 Pa. Super 136, 397 A.2d 438, 440 (1979) and cases cited therein.

The trial court found that while the award in this case may well represent the lower end of the spectrum of possible verdicts available to the jury, the trial court could not say that it was so unrelated to the evidence as to require a new trial. We find no clear error of palpable abuse of discretion as required by Bronchak, id., in this holding. We, therefore, affirm the trial court's decision.


*fn* Judge Joseph F. O'Kicki, of the Court of Common Please of Cambria County, Pennsylvania, is sitting by designation.

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