Atene v. Lawrence

318 A.2d 695, 456 Pa. 541, 1974 Pa. LEXIS 565

• Court: Supreme Court of Pennsylvania
• Decided: March 25, 1974
• Docket: Appeal, No. 247
• Status: Published

Opinions

Opinion by

Mr. Chief Justice Jones,

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. Superior Ct. 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 argues 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 remittitur 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, supra, 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 (1969); 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.

Mr. Justice Eagen concurs in the result.

1 Atene v. Lawrence, 428 Pa. 424, 239 A.2d 346 (1968).

2 The trial judge stated in his preliminary order:

“July 2, 1971: Plaintiff is directed to file a remittitur of all sums in excess of $13,500.00 or Defendant’s motion for new trial is granted.

Defendant’s motion for judgment N.O.V. was withdrawn.”

Verdict

October 10, 1970

3 Appellant’s reliance upon Bell v. Yellow Gab Co., supra, is, therefore, without foundation. In that case we found that a new trial had been granted exclusively because the trial court deemed the verdict excessive. 399 Pa. at 334, 160 A.2d at 439.

4 Indeed, even if the merits of the remittitur proposal were at issue here, the result — a new trial — would be the same. The proper sanction in the case of an excessive award of damages is to mandate a new trial. Moreover, if remittitur is imposed where a verdict is not excessive, the verdict at trial would have to be reinstated subject to any existent post-trial motions. In the present case, the trial court has already ruled upon those motions in granting a new trial, and the Superior Court has affirmed that result per curiam.

5 Both errors cited by the trial judge in support of a new trial are due to failure to sustain objections to parts of appellant’s closing argument. The suggestion by appellant’s counsel that the jury could, in computing damages for pain and suffering, take into account the fee paid — over $100 per day — to one of appellee’s witnesses, a private investigator, clearly runs afoul of well-settled law that: “Any statement to the jury by court or counsel, that calls their attention to claims and amounts not supported by the evidence, is error.” Bullock v. Chester & Darby Telford Road Co., 270 Pa. 295, 299, 113 A. 379, 380 (1921). See also Wilson v. Nelson, 437 Pa. 254, 258 A.2d 657 (1969) ; Clark v. Essew Wire Corp., 361 Pa. 60, 63 A.2d 35 (1949). Simulation of the accident by means of toy cars without control over the angle or speed of impact is error of particularly prejudicial effect when presented to a jury just prior to its deliberation. This experiment was not held to the strict standard of authentication required by the Superior Court in Clover Bar, Inc. Liquor License Case, 203 Pa. Superior Ct. 11, 198 A.2d 366 (1964).