Nikisher v. Benninger

• Citation: 105 A.2d 281,377 Pa. 564
• Parties: NIKISHER et al. v. BENNINGER.
• Decision Date: 25 May 1954
• Court: United States State Supreme Court of Pennsylvania

Page 281

105 A.2d 281

377 Pa. 564

NIKISHER et al. v. BENNINGER.

Supreme Court of Pennsylvania.

May 25, 1954.

Petition for Reconsideration of Order Denied June 10, 1954.

Laurence H. Eldredge, Philadelphia, Martin H. Philip and Philip & Philip, Palmerton, for appellant.

Boyd H. Walker, Walker & Walker, Allentown, for appellee.

Before STERN, C. J., and STEARNE, JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ.

ALLEN M. STEARNE, Justice.

These appeals are from the refusal of the court below to grant a new trial in a trespass action arising from an automobile accident. David Nikisher, a minor, was a guest passenger in the automobile of Carl H. Benninger, the defendant. The suit is by the guardians of the minor. Julius Nikisher and Thelma B., his wife, parents of the minor, have joined in the suit in their own right. The guardians of the minor appeal because of the inadequacy of his verdict, $1,500. The parents, while entirely satisfied with the amount of their verdict, $5,000, appeal, according to their counsel, as 'a purely formal proceeding for the purpose of conferring jurisdiction upon [the Supreme] Court'. Counsel for appellants, in their supplemental brief, correctly recite the procedural history:

'* * * a judgment of $5,000 was entered for the parents plaintiffs and a judgment of $1,500 for the minor plaintiff. Initially, one appeal was taken from the $1,500 judgment, but no separate appeal was taken from the $5,000 judgment because there was no complaint as to it. When the original appeal was orally argued before this Court on January 13, 1954, the question was raised from the Bench that the Court did not have jurisdiction of the single appeal from the $1,500 judgment. On January 14, 1954 this Court remitted the appeal to the Superior Court. Thereafter, on January 20th, the parents plaintiffs appealed to this Court from the $5,000 judgment and the case was docketed in this Court as of January Term, 1954, No. 124. A petition was then filed in the Superior Court reciting this fact and calling attention to Section 5 of the Act of May 5, 1899, P.L. 248 as amended [17 P.S. § 181 et seq.] and to Section 2 of the Act of June 11, 1935, P.L. 301 [12 P.S. §§ 1170a, 1170b]. On February 4, 1954, the Superior Court certified the appeal on the $1,500 judgment back to the Supreme Court of Pennsylvania for consideration and decision, * * *.'

The sole question is whether the court below abused its discretion in refusing to grant a new trial. While counsel for appellee state in their paper book 'as far as the issue of defendant's negligence was concerned, it was seriously disputed' no appeal has been taken by appellee. Liability of defendant must, therefore, be regarded as conceded.

The minor appellant undoubtedly assumes a heavy burden when he presses for a new trial on the ground of inadequacy of the verdict. In Carpenelli v. Scranton Bus Company, 350 Pa. 184, at page 187, 38 A.2d 44, at page 45, the rule is accurately stated by Mr. Justice Horace Stern (now Chief Justice):

'When a court grants a new trial on the ground of inadequacy of the verdict an appellate court, in the absence of a gross abuse of discretion, will not interfere. Schwartz v. Jaffe, 324 Pa. 324, 188 A. 295; Pretka v. Wilson, 325 Pa. 491, 190 A. 722. When a trial court refuses to grant relief against an allegedly inadequate verdict an appellate court will exercise even greater caution in reviewing its action. * * *'

The language of President Judge Rice in Palmer v. Leader Publishing Co., 7 Pa.Super. 594, was quoted with approval, 350 Pa. at page 187, 38 A.2d at page 45:

"* * * No mere difference of opinion, nothing short of a clear conviction, compelled by the evidence, that the jury must have been influenced by partiality, passion or prejudice or by some misconception of the law or the evidence, will justify an appellate court in declaring that the trial court was guilty of an abuse of discretion in refusing a new trial for inadequacy of damages where neither the evidence in the particular case nor the law applicable thereto furnished any definite standard by which they might be measured, and the jury had no other guide in arriving at the amount to be awarded but pure conjecture.' * * *'

The opinion states, 350 Pa. at page 187, 38 A.2d at page 46: 'The principle thus enunciated has been followed in many later cases in the Superior Court, where the question has more frequently arisen than here'. It is also said, 350 Pa. at page 188, 38 A.2d at page 46:

'* * * Indeed, it would seem that it is only where the verdict was merely nominal that the appellate courts have looked askance on a refusal of the trial court to set it aside and grant a new trial. (Citing cases.)'

But by the use of this language we did not state, or intend to decide, that a new trial because of inadequacy would be granted only where the verdict was nominal. In Takac v. Bamford, 370 Pa. 389, at page 395, 88 A.2d 86, at page 89, this Court speaking through Mr. Justice Jones, stated accurately:

'* * * The grant or refusal of a new trial for inadequacy of the verdict is a matter for the sound discretion of the trial court whose action will not be reversed on appeal except for a clear abuse of discretion such as where a new trial is refused when the verdict is so unreasonably low as to present a clear case of injustice. Fabel v. Hazlett, 157 Pa.Super. 416, 422, 43 A.2d 373; Patterson v. Pittsburgh Railways Company, 136 Pa.Super. 432, 7 A.2d 478, and Zamojc v. Fisher, supra, 127 Pa.Super. , at pages 172-173, 193 A. 315. The record in this case discloses no such abuse.'

In Paustenbaugh v. Ward Baking Company, 374 Pa. 418, 97 A.2d 816, Mr. Justice Arnold meticulously reviews the above cases and reaffirms the principle of law.

We are, therefore, required to review the evidence in order to determine whether or not the verdict is so unreasonably low as to present a clear case of injustice. In this connection we must also determine whether a trial error has been committed affecting the question of the extent of the amount of the damages.

No question of defendant's negligence is presented by this appeal. Liability must, therefore, be conceded. The trial judge stated in his charge: 'It has been a very serious case.' It was testified that the minor plaintiff, at the date of the accident, November 24, 1950, was seventeen years of age, in school and in good health. As a result of the accident he had a compound fracture of the left femur, with the bone protruding through the skin, abrasions of the left hip, both knees and ankles and laceration of the thigh where the bone had torn through the muscles. There was an open reduction operation, with an incision eight to ten inches long, which opened the thigh to the bone. A plate was screwed to the bone fragments and a ten pound plaster cast applied to the entire leg. The plaintiff required two blood transfusions, catheterization, and was immobilized with sand bags for eight weeks and then taken home and...