Boudwin v. Yellow Cab Co.

Dissenting Opinion by

Mr. Chiee Justice Bell:

Plaintiff recovered a jury’s verdict of $16,000; the lower Court refused to grant plaintiff a new trial. This Court reverses and orders a new trial on two grounds: (1) because counsel for defendant asked plaintiff on cross-examination whether she had received Workmen’s Compensation, and her answer was “yes”; and (2) “on the ground that the verdict inadequately covered her injuries which impaired her vision and affected her spinal column to the extent that she has been unable to work at gainful employment ever since the accident.”

The question as to Workmen’s Compensation was asked — as the trial Judge clearly pointed out at the time it was asked, and also in his charge to the jury— not to mitigate damages, but to attack plaintiff’s credibility.

Plaintiff’s credibility was certainly doubtful. She testified that she had continuous and permanent pain in her neck as a result of the accident, and one of her *42 doctors, who examined her four years after the accident, testified that she had a hair line fracture of a bone in her neck. On the other hand, none of her attending physicians found any objective evidence of an injury to her neck or spinal column, or any permanent disability. Furthermore, one of her doctors within six months after the accident advised her to go back to work, but she said she was unable to do so.

No question was asked by defendant’s counsel as to the amount of Workmen’s Compensation she had received, or for what length of time it had been paid. Plaintiff’s counsel had objected to any question concerning Workmen’s Compensation, but after his objection had been overruled produced a witness who testified (a) that plaintiff had received Workmen’s Compensation disability benefits from October 25, 1957 until November 24, 1960, and (b) these payments were made in the belief that plaintiff was totally disabled, and (c) her case for further compensation was still being considered. This question, especially in the light of plaintiff’s answering testimony, was obviously harmless error; * indeed, the sum total of the evidence on this point not only supported but materially aided plaintiff’s claim that she was permanently disabled. Plaintiff did not ask for the withdrawal of a juror; she took her chances on the verdict and under the circumstances of this case should not now be permitted to complain and demand a new trial.*

Even more important, Rice v. Shenk, 293 Pa. 524 , 143 A. 231 , is directly and specifically on point and holds that an identical question was harmless error. ** *43 Lobalzo v. Varoli, 409 Pa. 15 , 185 A. 2d 557 , and Moidel v. Peoples Natural Gas Company, 397 Pa. 212 , 154 A. 2d 399 , are, on their facts, distinguishable.

The majority opinion also expressly or impliedly holds that a new trial should be granted for the additional reason that the verdict was inadequate. To support this position the majority refers only to the testimony of plaintiff herself, and completely overlooks and fails to state that her alleged inability to work and whether all her alleged total loss of wages was due to the accident, raised considerable doubt, and most important that her testimony was denied in its most important, aspects, i.e., the permanency of her neck (or spinal) injuries, * by several of her own medical experts. The jury and the trial Judge saw and heard the witnesses and consequently are undoubtedly in a better position than an appellate Court to determine credibility. Under the aforesaid facts and circumstances it is contrary (1) to common sense and (2) to the law (a) to resolve all doubts in her favor, and (b) to ignore the testimony of plaintiff’s own doctors and upset a jury’s verdict (in her favor) “for inadequacy”, when the amount of that verdict was not only very substantial but exceeded all the back wages plaintiff said she lost and all the expenses she said she had incurred, and likewise included several thousand dollars for pain and suffering.

Where the evidence of negligence or contributory negligence, or the evidence pertaining to injuries or to loss of wages or earning power or to medical and other expenses, is conflicting or not free from doubt, a trial Judge has the power and discretion to uphold the time-honored right of a jury to render a compromise verdict and to sustain a verdict which is substantial, even *44 though it is less than the plaintiff would likely have been entitled to if her testimony and all the evidence favorable to her had been believed. Karcesky v. Laria, 382 Pa. 227 , 114 A. 2d 150 ; Ischo v. Bailey, 403 Pa. 281, 289-290 , 169 A. 2d 38 . In Ischo v. Bailey, the Court, after analyzing and reviewing numerous cases of alleged inadequate verdicts, said (page 290): “‘In considering the action of the lower Court in granting or refusing a new trial, the law is clearly settled — an appellate Court will affirm unless there has been clear abuse of discretion or an error of law. Wargo v. Pittsburgh Railways Co., 376 Pa. 168 , 101 A. 2d 638 ; Karcesky v. Laria, 382 Pa. 227 , 114 A. 2d 150 ; Smith v. Allegheny County, 377 Pa. 365 , 105 A. 2d 137 ; Edelson v. Ochroch, 380 Pa. 426 , 111 A. 2d 455 ; Foster v. Waybright, 367 Pa. 615 , 80 A. 2d 801 .

“‘In Karcesky v. Laria, 382 Pa., supra, the Court said (page 235) : “‘“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.

“In Karcesky v. Laria, supra, the Court said (page 235) : ‘Where the verdict is, as here, substantial, a new trial “for inadequacy” should be granted only when the trial court is convinced the verdict is so unreasonably low as to present a clear case of injustice even in the light of the doubtful negligence of defendant or the doubtful contributory negligence of the plaintiff, or both: Cf. Takac v. Bamford, 370 Pa. 389 , 88 A. 2d 86 ; Nikisher v. Benninger, 377 Pa., supra; Carpenelli v. Scranton Bus Company, 350 Pa., supra.'”

For these reasons I would affirm the judgment.

*45 Mr. Justice Benjamin B. Jones joins in this dissenting opinion.

New cases are tried without some error, and if new trials are granted in cases where harmless error appears, litigation instead of being speeded and reduced (which I have so ardently advocated) will be further retarded and increased.

See to the same effect, Sperry v. White Star Lines, Inc., 315 Pa. 361 , 172 A. 646 .

The temporary impairment of her vision was concededly relatively unimportant.