233 Pa. Super. 1 | Pa. Super. Ct. | 1975
Opinion by
This is an appeal from the Court of Common Pleas of Delaware County, Civil Division, in an action for Wrongful Death and a Survival Action brought by the plaintiff-appellant, Joseph E. Gallagher, Jr., against Al Nero and Rose Nero, owners of the Four.Winds Motel-Hotel. The jury returned a verdict in favor of the appellant in the amount of $1,995.00 under the Wrongful Death action and in favor of the appellees under the Survival action. The appellant filed a motion for a new trial on damages alone which was denied by the Court en banc. This appeal followed seeking a new trial for damages only.
The facts giving rise to this action occurred on December 20, 1968. On that date, Joseph E. Gallagher, Jr., who was then 21 years of age, quit work about 3:00 P.M. after he and his father, by whom he was employed as a bricklayer, finished a job. The father and son stopped off at a tavern on their way home from work where they enjoyed a few drinks. The father left the establishment about an hour later while the son remained at the tavern. Joseph E. Gallagher, Jr. then frequented another drinking establishment in the company of his cousin, Richard Gallagher, before returning to his parents’ home where he lived. The son and his cousin reached his parents’ home somewhere in the vicinity of 10:30 P.M. that evening. Richard Gallagher had to drive his cousin home as, by this time, Joseph was intoxicated. When he returned home both Richard and his father admonished Joseph to remain at home because he was obviously intoxicated. However, the son went upstairs; showered, shaved and got dressed and insisted on going to the Four Winds to get some clams. Richard accompanied him on this trip.
At the Four Winds, Joseph ordered clams and had two drinks. While there, he saw one Nelson Feliciano with whom he had had some trouble in the past. A fight ensued between these two individuals resulting in both men confronting each other on the parking lot of the establish
Joseph E. Gallagher, Sr., representing his son’s estate, brought this action against the Ñeros on the grounds that they were negligent in serving a visibly intoxicated person. At trial, the decedent’s father testified that his son’s wages were $3.25 per hour. He worked a 40-hour week and worked 50 weeks per year. He also testified that his son spent $55.00 for food, clothes and entertainment and had no other expenses of which he knew. The decedent was separated from his wife and it was not known whether he was paying her any support. An actuary testified that the decedent’s future earnings, reduced to present worth, would amount to $97,890 from the date of trial if based on the rate of $3.25 per hour. However, the decedent’s father testified that as of the date of trial the wages being paid to persons doing the same work as his son amount to $5.00 per hour. At that rate, his future earnings, reduced to present worth, would be $150,600. Since 4 years had elapsed from the time of decedent’s death to the time of trial, there was also the additional amount of $26,000 which the decedent may have earned had he lived. Upon cross-examination, the actuary admitted that these figures did not take into account decedent’s taxes, his social security deductions, and his cost of personal maintenance.
The appellant claims that the amount of damages awarded by the jury was inadequate in light of this testi
In determining whether the court below should have granted appellant’s motion for a new trial on the issue of damages alone, we must begin with the premise that the grant or refusal of a new trial for inadequacy of the verdict is a matter for the discretion of the trial court and the reviewing court should not interfere with the discretion unless it is clear that the lower court abused its discretion. Bowie v. Shelton, 214 Pa. Superior Ct. 107, 251 A.2d 667 (1969); Padula v. Godshalk, 192 Pa. Superior Ct. 618, 161 A.2d 919 (1960). The power to grant a new trial on the issue of damages alone should be exercised cautiously and should be granted only in cases where the issue of liability has been so conclusively and definitely
Regarding pain and suffering it is a matter of judgment as to what will fairly compensate a plaintiff, or as in this case the plaintiff’s estate, for the pain and suffering endured. Massman v. City of Phila., 430 Pa. 99, 241 A.2d 921 (1968). A failure to award any amount for pain and suffering is a strong indication that the verdict was inadequate. However, in this case the jury was justified in awarding nothing for pain and suffering because the decedent was intoxicated when stabbed, died within a few moments of the stabbing, and uttered the words that he
Finally, we must recognize that jury verdicts are the result of compromise and common sense. In cases where the evidence of a defendant’s negligence is slight the jury will often be inclined to be moderate in its award. Also where there are substantial questions of a plaintiff’s contributory negligence the jury will often be inclined to take such factors into consideration and render its verdict on the amount of damages accordingly. A cursory glance at the facts in the instant case reveals that such issues were certainly a part of this situation. The decedent was the aggressor in the altercation that took place. The defendants’ negligence consisted more of passive inaction rather than active negligence. Although the decedent had been served drinks in an intoxicated state, he had showered and dressed up before he went to the Four Winds Motel and quite possibly the jury could have been influenced by that fact to believe that the decedent’s intoxicated condition was not evident to the defendants. In any event, the record reveals numerous justifiable reasons for the jury’s verdict and under these circumstances we can find no abuse of discretion in the trial court’s refusal to grant a new trial limited solely to the issue of damages.
Judgment of the court below is affirmed.