Atene v. Lawrence

• Decision Date: 25 March 1974
• Citation: 318 A.2d 695,456 Pa. 541
• Parties: Angelo P. ATENE, Appellant, v. Paul A. LAWRENCE.
• Court: Pennsylvania Supreme Court

Page 695

318 A.2d 695

456 Pa. 541

Angelo P. ATENE, Appellant, v. Paul A. LAWRENCE.

Supreme Court of Pennsylvania.

March 25, 1974.

Rehearing Denied May 14, 1974.

[456 Pa. 542] Fred Lowenschuss, Fred Lowenschuss Associates, Philadelphia, for appellant.

Joseph G. Manta, James M. Marsh, E. R. Paul, Philadelphia, for appellee; LaBrum and Doak, Philadelphia, of counsel.

Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION

JONES, Chief Justice.

Appellant was the plaintiff in a trespass action arising out of an automobile accident in 1961. There have been four complete jury trials of this case and an earlier appeal to this Court. The first trial resulted in a verdict for the defendant which was subsequently reversed by this Court on the basis of numerous trial errors. ¹ The second and third trials both resulted in hung juries. The fourth trial, the subject of this appeal, culminated in a verdict in favor of the plaintiff in the sum of $20,000.

Alleging trial errors, the defendant filed timely post-trial motions for judgment n.o.v. and for a new trial which were briefed and argued before the trial court. The allegations of error were that: (1) in appellant's closing argument reference was made to a per diem figure in support of recovery of damages and (2) an uncontrolled experimental re-enactment of the accident was staged. The trial judge then directed the plaintiff to either file a remittitur of all sums in excess of $13,500 or undergo a new trial. ² The Superior Court quashed an immediate appeal on the issue of remittitur on the ground that no appealable order had yet issued. Atene v. Lawrence, 220 Pa.Super. 444, 289 A.2d 178 (1972). Plaintiff thereafter refused to file the remittitur, and the trial court granted a new trial. After refusing to remit the stated sum, plaintiff again appealed, but the Superior Court affirmed the new trial grant per curiam without opinion. Having granted allocatur, we now affirm.

Appellant contends that there were no trial errors and that the trial judge had no legal basis on which to order either remittitur or a new trial. He agrues that the trial judge sought only to effect a compromise in order to forestall the necessity of a new trial, a mode of reduction in the amount of verdict proscribed by this Court in Bell v. Yellow Cab Co., 399 Pa. 332, 160 A.2d 437 (1960). Appellee, to the contrary, maintains that the unaccepted remititur has no impact on the case at this time and that the only issue is the propriety of the trial judge's ruling on the allegations of error raised in the post-trial motions.

The procedural history of this case presents an interesting interpretative issue in the determination of the nature and legal consistency of the trial court ruling on the grant of a new trial. It is not at all clear from the opinion of the trial judge whether he was ruling upon the appellee's post-trial motion for a new trial or solely upon the merits of his own order suggesting remittitur as a basis for the grant of a new trial. This Court must assume the task of construing the propriety of a new trial against its background of a post-verdict ultimatum of remittitur or new trial and an imprecise trial court opinion granting a new trial.

This Court established in Bell v. Yellow Cab Co., 399 Pa. 332, 160 A.2d 437 (1960), that the sanction of remittitur is proper only to reduce the amount of a verdict considered excessive by the court. Nowhere in the opinion of the present trial court is there any discussion of excessiveness of the verdict awarded. Indeed, the focus is solely upon trial errors. The question of remittitur was limited to what may be construed as the trial judge's offer of compromise in the order of July 2, 1971. ³

That the grant of a new trial stems from a ruling on the post-trial motions is evidenced by the record of Superior Court review. Having on its own motion quashed the first appeal on the remittitur proposal of July 2 for lack of a final or appealable order, it affirmed per curiam the grant of a new trial after appellant had filed a praecipe refusing to remit the stated sum. It is clear that the only issue treated by the Superior Court on the second appeal was the propriety of the new trial order. Such a view is consistent with the circumstances of this case and with the contention that the ruling presently in dispute was based on the post-trial motions.

It is well-settled law in this Commonwealth that our review of the grant of a new trial is limited to cases of gross abuse of discretion by the trial judge or the application of erroneous rules of law by the trial court. Wilson v. Nelson, 437 Pa. 254, 258 A.2d 657 (1970); Segriff v. Johnston, 402 Pa. 109, 166 A.2d 496 (1960). The objections to appellant's closing argument are contained within the record. In consideration of the prejudicial effect of these contested acts and statements, great weight should be accorded to the opinion of the trial judge, who could best evaluate their impact upon the jury. We can find no abuse of discretion in the grant of a new trial. ⁴ A reasonable basis exists in fact and in law for the assignment of such error as to justify a new trial. ⁵

Order affirmed.

EAGEN, J., concurs in the result.

ROBERTS, J., filed a dissenting opinion in which NIX and MANDERINO, JJ., join.

ROBERTS, Justice (dissenting).

I dissent. Viewing this case, as the majority does, as an appeal from the trial court's second rulings on properly-preserved alleged errors, I cannot agree that the two asserted errors are grounds for the award of a new trial. In my judgment, both were entirely within the scope of permissible closing argument.

The first alleged trial error involves a demonstration during plaintiff's counsel's summation. Counsel tried to explain plaintiff's version of the accident--that plaintiff hit the windshield when the cars collided--by striking together two two-inch toy cars. This demonstration only illustrated a fundamental law of physics--the law of inertia--which states that when two vehicles collide, the passengers inside continue to move. Counsel did not conduct an uncontrolled evidentiary experiment, but merely illustrated a basic natural law relevant to this case.

This Court has previously held such physical illustration during argument to be totally proper:

'The counsel merely presented to the jury an illustration of a physical fact which spoke for itself. The jury simply saw the natural and self-evident fact . . .. It cannot be doubted that the counsel had a perfect right to contend in argument that such would be the case, and we can see no good reason why he could not show the jury the actual natural occurrence in support of his argument. It was an illustration merely, and not an experiment.'

Hoffman v. Bloomsburg R.R., 143 Pa. 503, 519, 22 A. 823, 826 (1891). All other jurisdictions which have more recently examined this question have likewise held proper such demonstration during summation. See, e.g., Nielsen v. Wessels, 247 Iowa 213, 73 N.W.2d 83 (1955); ¹ Ramey v Ruth, 376 S.W.2d 292 (Ky. 1964); ² Feldmiller v. Olson, 75 Wash.2d 322, 450 P.2d 816 (1969); ³ cf. Robinson v. Kathryn, 23 Ill.App.2d 5, 161 N.E.2d 477 (1959). ⁴ In my view, these precedents control the instant case.

The majority's novel rule prohibiting illustration during summation is contrary not only to previously-unchallenged precedents but also to logic and accepted trial practice.

'It is a common and accepted practice in Pennsylvania courts to permit counsel to employ toys, miniatures, duplicates and apparatus to illustrate and illuminate their arguments, even though such articles may not have been introduced into evidence during the trial. There appears to be no real reason to forbid such practice provided the apparatus does not mislead or confuse the jury.'

1 B. Laub, Pennsylvania Trial Guide § 154, at 293 (1959).

The majority unfortunately errs by failing to distinguish between experiments used as actual, demonstrative Evidence at trial and clarifying Illustrations used during argument by counsel to illuminate the evidence. In the first case, the experiment is Evidence and must be held to a strict standard of authentication. In the case of physical illustration during argument, however, counsel's actions are not Evidence. As has aptly been noted:

'The use of (an instrument) for purposes of illustration must be distinguished from its admission in evidence. In the latter case the instrument possesses within itself evidential characteristics tending to establish a particular fact. In the former case . . . the (instrument) is merely an aid to . . . understanding.'

Crocker v. Lee, 261 Ala. 439, 445, 74 So.2d 429, 435 (1954).

If the distinction between Evidence and Illustration is understood, then it becomes obvious that the trial court and the majority err by here requiring 'strict authentication.'

'If an article is offered for (the purpose of illustration and clarification), rather than as real or original evidence, its specific identity or source is generally of no significance whatever. Instead, the theory justifying admission of these exhibits requires only that the item be sufficiently explanatory or illustrative of relevant testimony in the case to be of potential help to the trier of fact.'

McCormick's Handbook of the Law of Evidence § 212 at 528 (2d ed. E. Cleary 1972) (footnotes omitted).

Here, counsel's demonstration surely was 'sufficiently explanatory or illustrative of relevant testimony in the case to be of potential help to the trier of fact.' Visually counsel conveyed to the jury his client's version of the accident, a scene he unquestionably could have described orally, but perhaps not as clearly. Consequently, his use of toy cars...