Lobalzo v. Varoli

• Decision Date: 24 June 1966
• Citation: 220 A.2d 634,422 Pa. 5
• Parties: Joseph LOBALZO, Appellant, v. August VAROLI and Raymond F. varoli.
• Court: Pennsylvania Supreme Court

220 A.2d 634

422 Pa. 5

Joseph LOBALZO, Appellant, v. August VAROLI and Raymond F. varoli.

Supreme Court of Pennsylvania.

June 24, 1966.

Charles F. Dean, Pittsburgh, for appellant.

David J. Armstrong, Dickie, McCamey, & Chilcote, Pittsburgh, for appellees.

Before MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

COHEN, Justice.

This action arises out of a motor vehicle collision. At the conclusion of the court's charge, the trial judge granted both counsel a general exception and requested points of correction. No portion of the charge urged as error here was specifically excepted to. The jury returned a verdict for the defendant and plaintiff sought a new trial, alleging error in the charge. His motion was denied by the court en banc. From judgment entered on that order he took this appeal.

Plaintiff argues that the charge was erroneous in three respects. He asserts that the charge: (1) failed to define contributory negligence, (2) inadequately defined proximate cause, and (3) misled the jury by causing them to believe that plaintiff was contributorily negligent merely because he crossed the center line of the road to his proper lane.

The law is clear that on an appeal from the grant or refusal of a new trial the order of the lower court will not be reversed where only a general exception was taken unless the errors committed were basic and fundamental and could not have been correct at the trial. Ason v. Leonhart, 402 Pa. 312 165 A.2d 625 (1960); Hill v. Gerheim, 419 Pa. 349, 214 A.2d 240 (1965).

This rule is founded on the principle that counsel shall not sit idly by, take his chances with instructions given at trial, and then, having lost the case, seek a new trial and a second opportunity, on the ground that the charge was prejudicial to his client. If the rule should ever be relaxed, it is not here, for the legal issues involved are singularly uncomplex. Counsel who ought to be fully aware of the law involved in this case can have no excuse for failing to request a special exception if he thought the judge had erred. To remand in such cases as this would not only be sanctioning the failure of counsel to take special exceptions, but also would lead to further burdening of our trial courts.

The court en banc found no such error as would warrant the grant of a new trial. On a review of the record and in the light of the principle set forth above, we fully agree.

Judgment affirmed.

EAGEN, J., concurs in the result.

CONCURRING OPINION.

ROBERTS Justice.

While I am in full agreement with the opinion of the majority, I feel constrained to add a few, brief observations.

This litigation arose out of a conventional motor vehicle collision, each side accusing the other of inattention and negligence. As the majority notes, the issues present were 'singularly uncomplex.' Yet, although the case is routine and unexceptional in every respect, involving largely a factual dispute to be resolved by the fact finder's assessment of credibility, this Court is asked for the second time to set aside a jury verdict for defendant and to impose the case again on our already overburdened trial courts.

At the outset, the full implications of such a course of action must be considered in context. We do not here deal with a matter unlikely to present itself in the near future, or with one that will not have a significant effect on the very serious problem of trial court backlog. A recent study revealed that 92% Of the jury cases in Philadelphia County and 86% Of such cases in Allegheny County are in trespass. Levin & Woolley, Dispatch and Delay, 9 n. 39 (1961).

It is clear, therefore, that it is in trespass actions, and most especially in personal injury litigation arising out of motor vehicle accidents, that the problem of trial delay is most acute. And, it is also in this area that the legal principles involved are most repetitious and familiar to trial counsel.

In the present case, to permit plaintiff to obtain a second trial, on the ground that the instructions to the jury contained fundamental error, in light of the elementary and routine nature of the principles involved, would do a great injustice to countless numbers of persons who are compelled to endure oppressive delay or to settle claims at a fraction of their value because timely judicial relief was not available. While I would heartily approve of ordering a new trial in any case in which such action would be in the interest of justice, I would find no justice in setting aside the endeavors of all those who participated in the trial below merely because plaintiff's counsel now discerns some disadvantage, problematical at best, to his client, a disadvantage which he had every opportunity to discern and to seek to have rectified at trial.

The record here discloses that the court, at the completion of its charge, inquired whether counsel objected to the charge as given, or desired any amplification or addition to the instructions. Counsel replied in the negative. In my view given the elementary nature of the applicable legal principles, such acquiescence by counsel precludes an assertion of error in the charge as grounds for setting aside the verdict. As this Court stated in Segriff v. Johnston, 402 Pa. 109, 113, 166 A.2d 496, 499 (1960), '(a) proper administration of justice requires that new trials be not granted on errors which counsel had ample opportunity to correct. * * *' The purpose of this rule will never be more fully achieved than by its application to the present case. Had counsel apprised the court of his objection to the charge, by taking a specific exception, any possible prejudice to plaintiff by reason of the court's instruction on contributory negligence and proximate cause could have been and undoubtedly would have been cured. Since it was entirely possible for counsel, by manifesting his disagreement with the charge, to have prompted curative efforts on the part of the court, thus avoiding the appalling and burdensome waste which retrial engenders, I am able to ascertain no reason for upsetting the verdict of the jury and granting a new trial in this case. To do so would be to reduce the threshold of fundamental error so as to encourage counsel to sit idly, to take his chances with the instructions given at trial, and then, having lost the case, to seek a second opportunity to try his case on the ground that the charge was prejudicial to his client. We should no longer be willing to tolerate such tactics at the expense of our overburdened trial courts and the litigants who are adversely affected by lengthy...