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filed: June 3, 1983.


No. 515 Philadelphia 1982, Appeal from the Judgment of the Court of Common Pleas, Civil, Bedford County at April Term, 1976, No. 22.


Edward Silva, Philadelphia, for appellant.

Scott Alan Fleischauer, Hollidaysburg, for appellees.

Cercone, President Judge, and Johnson and Montemuro, JJ.

Author: Montemuro

[ 314 Pa. Super. Page 554]

This is an appeal from the Order of the Court of Common Pleas of Bedford County denying a new trial to the plaintiff-appellant, the Estate of Lori Anne Clark. Appellant raises only two issues on this appeal; one, that the jury award of no damages was inadequate, and two, that the defendant's attorney made prejudicial remarks in his closing statement. We need not address the second issue because we agree that the damages were inadequate.

The facts relevant to the present appeal are as follows: On March 25, 1975, defendant-appellee, Sherrill S. Clark, was driving her 1972 Plymouth Sedan southbound on U.S.

[ 314 Pa. Super. Page 555]

Route 220, outside St. Clairsville, Bedford County. Mrs. Clark was driving up Blue Knob, a steep upgrade, when her vehicle began to fishtail on the icy road. The vehicle crossed into the northbound traffic lane and struck a 1973 Dodge Van driven by John T. White. White's vehicle was subsequently struck from the rear by a 1974 Chevrolet Van driven by defendant, John Richard Bannister. Mr. White and his wife, a passenger in the van, sustained serious injuries in the collision; as did Mrs. Clark. Mrs. Clark's daughter, Lori Anne, a passenger in the Plymouth, died instantaneously.

Plaintiff-appellant brought a survival action against Mrs. Clark and her ex-husband,*fn1 and also Richard Bannister, and his employer, Oklahoma State University. The case proceeded to trial before a jury. The trial was bifurcated, with the issues of liability and damages considered separately.*fn2 In the liability determination, the jury found that only Mrs. Clark was negligent.

The estate filed a motion for a new trial which was denied by the trial court. It is from the order denying the motion for a new trial that the estate appeals.

Initially, we note that the decision of whether to grant a new trial is peculiarly within the competence of the trial court. This decision will not be disturbed on appeal except where there has been a clear abuse of discretion. Wilson v. Nelson, 437 Pa. 254, 258 A.2d 657 (1969); Hose v. Hake, 412 Pa. 10, 192 A.2d 339 (1963). As this court stated in Mueller v. Brandon, 282 Pa. Super. 37, 422 A.2d 664 (1980):

Where the trial court grants a new trial on the ground of inadequacy, the appellate courts will not interfere in the absence of a gross abuse of discretion . . . . When the trial court refuses relief against an alleged inadequate

[ 314 Pa. Super. Page 556]

    verdict the appellate court will exercise even greater caution in reviewing the action. (Emphasis in original)

Id., 282 Pa. Superior at 41, 422 A.2d at 666 (quoting Paustenbaugh v. Ward Baking Co., 374 Pa. 418, 420-21, 97 A.2d 816, 818 (1953)). Nevertheless, "appellate courts do not abdicate their power of review and will reverse where a clear abuse of discretion appears." Bortner v. Gladfelter, 302 Pa. Super. 492, 496, 448 A.2d 1386, 1389 (1982). See also Hose v. Hake, supra; Mueller v. Brandon, supra.

In Morris v. Peckyno, 202 Pa. Super. 490, 198 A.2d 396 (1964), this court said:

As a rule, a verdict in an action for a personal tort may be set aside as inadequate when, and only when, it is so inadequate as to indicate passion, prejudice, partiality, or corruption, or that the jury disregarded the instructions of the court, or, in some instances, where there was a vital misapprehension or mistake on the part of the jury, or where it clearly appears from uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss suffered by the plaintiff, or according to some of the cases, where, otherwise, there has been an evident failure of justice to the plaintiff, or the award is so inadequate that it should not be permitted to stand. Generally, a verdict will not be disturbed merely on account of the smallness of the damages awarded or because the reviewing court would have awarded more.

Id., 202 Pa. Superior at 492, 198 A.2d at 397 (quoting from 15 Am.Jur. Section 231). See also Bortner v. Gladfelter, supra, 302 Pa. Superior at 496, 448 A.2d 1389 and the cases cited therein.

In the present case, after a determination of liability on the part of Mrs. Clark, the jury returned with a verdict of no damages. This was despite the uncontradicted testimony that the decedent was a healthy, industrious, twelve year old girl with an extremely high I.Q. She was an excellent student, class treasurer, and also engaged in and supervised many activities in her local church. Her career goal was to become a registered nurse. Testimony was

[ 314 Pa. Super. Page 557]

    presented by a vocational psychologist that the decedent possessed the attributes which would enable her to attain that goal. An actuary testified that the decedent's work force expectancy would have been 38.5 years (assuming she attended college) and assuming further an average salary of $15,000.00 per year, the decedent would have earned $577,500.00 in her lifetime and expended a total of $202,125 for her personal maintenance; thus, having a net of $375,375.00.*fn3 The defendant rested without presenting any testimony on damages.

We find that the jury's award has no reasonable relation to the damages sustained as indicated by the evidence. The injustice of the verdict stands forth like a beacon. Elza v. Chovan, 396 Pa. 112, 118, 152 A.2d 238, 240 (1959). The award is completely inconsistent with the determination of liability and can only be attributed to some "misapprehension or mistake on the part of the jury." Morris v. Peckyno, supra.

The trial court suggests in its opinion that the jury's verdict was a compromise verdict because the evidence of Mrs. Clark's negligence was slight. We do not agree. In Stokan v. Turnbull, 480 Pa. 71, 78, 389 A.2d 90, 93-94 (1978), the supreme court (quoting from Phelps v. Paul L. Britton, Inc., 412 Pa. 55, 60 n. 3, 192 A.2d 689, 692 n. 3 (1963)), held:

"A compromise verdict is one where the jury, in doubt as to defendant's negligence or plaintiff's freedom from contributory negligence, brings in a verdict for the plaintiff but in a smaller amount that it would have if these questions had been free from doubt. See Karcesky v. Laria, 382 Pa. 227, 234-235, 114 A.2d 150, 154 (1955);

[ 314 Pa. Super. Page 558]

The liability of the defendant, Mrs. Clark, was fairly determined by the jury in the initial part of a bifurcated proceeding. It was a determination separate from and prior to the damage determination. The damage determination was based on different evidence presented after the finding of liability. We conclude that it is proper to grant a new trial with respect to damages only. Bortner v. Gladfelter, supra.

Accordingly, the order of the trial court is reversed and the case remanded for a new trial on the issue of damages only. Jurisdiction is not retained by this court.

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