Opinion
November 15, 1966.
December 16, 1966.
Practice — Verdict — Molding to agree with obvious intention of jury — Assuming facts not determinable from verdict — New trial — Inconsistent verdicts — Restatement 2d, Torts.
1. The rule that a trial court has power to mold a verdict to agree with the obvious intention of the jury is not applicable where facts have to be assumed which cannot be determined from the verdict.
2. A new trial is properly granted where verdicts are inconsistent.
3. In this case, it was Held that the court did not abuse its discretion in awarding a new trial generally.
Negligence — Damages — Contributory negligence of minor barring recovery of medical expenses by parents — Award of medical expenses to parents inconsistent with refusal of damages to minor.
4. The contributory negligence of a minor bars recovery by the parents of the minor for medical expenses incurred on behalf of the minor.
5. Restatement 2d, Torts, § 494, cited.
6. Where an award is made in favor of the parents of a minor for medical expenses incurred on behalf of the minor, it is inconsistent to refuse damages to the minor in his action against the tortfeasor.
Before ERVIN, P.J., WRIGHT, WATKINS, MONTGOMERY, JACOBS, HOFFMAN, and SPAULDING, JJ.
Appeal, No. 249, April T., 1966, from order of Court of Common Pleas of Allegheny County, Jan. T., 1961, No. 973, in case of Sandra May, a minor, by John L. May, her guardian, et al. v. Pittsburgh Railways Company et al. Order affirmed.
Trespass for personal injuries and property damage. Before WESSEL, JR., J.
Verdicts, for parent plaintiffs in amount of $477.55 for hospital and medical expenses, and in favor of mother of minor, owner of car, in amount of $1,095.85, for automobile expense; in case of minor for her personal injuries, verdict not awarding damages. The court below reformed the verdicts, in the case of the parents' actions by striking out the award for medical expenses, by providing that the award in favor of the owner of the car should be entered against the railways company only, and in the case of the minor plaintiff for personal injuries by entering a verdict in favor of the railways company and against the minor plaintiff. The court below granted a new trial generally. Defendant railways company appealed.
Leo Daniels, with him Prichard, Lawler Geltz, for appellant.
Gary F. Sharlock, with him Mercer Buckley, for appellees.
Argued November 15, 1966.
The sole issue before us is whether or not the court below abused its discretion in granting a new trial.
On December 26, 1958 a streetcar owned by Pittsburgh Railways Company traveling south on Millvale Avenue in the City of Pittsburgh collided with an automobile traveling east on Sciota Street, and driven by Sandra Lee May, then a minor. The automobile driven by Sandra was owned by her mother, Sophie H. May, who was not in the automobile. As a result of the collision suit was begun against Pittsburgh Railways Company on behalf of Sandra for her personal injuries, on behalf of her parents, John L. May and Sophie H. May, for Sandra's medical expenses and loss of earnings during her minority, and on behalf of Sophie H. May for property damage to her automobile. The action of Sandra was severed from the action of her parents in their own right and she was joined as an additional defendant in the latter action. The cases were tried together.
At the time of trial Sandra had attained her majority and had married and is designated in the captions as Sandra May Gregory.
In the action of the parents in which Sandra was joined as an additional defendant the jury brought in the following verdict: "In favor of John L. May and Sophie H. May to receive hospital and medical expenses amounting to $477.55. In addition, in favor of Sophie H. May to receive automobile expense amounting to $1,095.85, grand total of $1,573.40." In the case of Sandra for her personal injuries the verdict of the jury read as follows: "Sandra May Gregory is not entitled to any remuneration from the defendant."
The court below recognized the inconsistencies in the verdicts but, instead of sending the jury out with additional instructions in an attempt to have the jury reach consistent verdicts, attempted to reform the verdicts. In the case of the parents' action it struck out the award of medical expenses in the amount of $477.55, provided that the award in favor of Sophie H. May in the amount of $1,095.85 should be against Pittsburgh Railways Company only and entered a verdict in favor of Sandra May Gregory. In the case of Sandra for her personal injuries the court entered a verdict in favor of Pittsburgh Railways Company and against Sandra. The Mays moved for a new trial and Pittsburgh Railways Company moved for judgment n.o.v. The court below dismissed Railways motion for judgment n.o.v. and a new trial was granted generally.
On appeal the appellant, Pittsburgh Railways Company, does not press its motion for judgment n.o.v. It argues that the verdict was correctly molded by eliminating the parents' award for medical expenses and that the finding in favor of Sophie H. May for property damage to her automobile should be either entered as a verdict against both the Railways and Sandra May Gregory, or be retried as the only issue remaining in the case.
In molding the verdict by taking the award for medical expenses away from the parents the lower court obviously applied the rule that the contributory negligence of the minor bars such recovery. Perkon v. Marnella, 392 Pa. 319, 140 A.2d 799 (1958); Rice v. Kring, 310 Pa. 550, 165 A. 833 (1933); Restatement 2d, Torts, § 494. However, in order to apply this rule the court had to first conclude that the jury had found that Sandra was contributorily negligent, but such finding did not necessarily follow from the verdict which might have been interpreted in a number of ways including a holding that Railways was not negligent or that neither was negligent. Furthermore a finding of contributory negligence conflicts with the jury's additional finding in favor of Sandra's parents for the medical expenses in view of the above rule. Also the award in favor of the parents for their medical expenses required an award of some damages to Sandra in her action under the doctrine of Pascarella v. Pittsburgh Railways Company, 389 Pa. 8, 131 A.2d 445 (1957). We agree with the lower court's conclusion in granting a new trial, that the verdicts were inconsistent.
In order to mold the verdicts the trial judge had to assume facts which could not be determined from the verdicts. The rule that a trial court has power to mold a verdict to agree with the obvious intention of the jury, Wadatz v. Taormina, 356 Pa. 481, 52 A.2d 220 (1947), does not apply here where the intention of the jury is far from obvious.
It has long been the law of Pennsylvania that a new trial is properly granted where verdicts are inconsistent and in view of the confusion existing in this case we find no abuse of discretion in awarding a new trial generally. See Thompson v. Iannuzzi, 403 Pa. 329, 169 A.2d 777 (1961).
Order affirmed.