Potts Et Ux. v. Guthrie , 282 Pa. 200 ( 1924 )

Argued December 3, 1924. On the evening of October 7, 1922, Mrs. Potts, the wife plaintiff, while in an automobile with her husband and son, on a public street in Camden, New Jersey, was injured by one of defendant's autotrucks, under circumstances indicating negligence on part of its driver. For the damages sustained thereby, the plaintiffs brought this action; on the trial of which he recovered a verdict for $1,200 and she one for $7,500. Defendant moved for a new trial, alleging, inter alia, that the verdicts were excessive; and, from the trial court's refusal of the motion, brought these appeals.

The only error assigned is the refusal of a new trial, which appellant contends constituted a reversible abuse of discretion because of the excessive character of the verdicts. The power given this court to grant new trials under the Act of May 20, 1891, P. L. 101, is exceptional and will be exercised only in extreme cases to prevent palpable injustice: Scott, Admrx., v. American Exp. Co., 257 Pa. 25; O'Hanlon et al. v. Pittsburgh Rys. Co., 256 Pa. 394; Dunlap v. Pitts., B. N.C. Ry. Co.,247 Pa. 230; Hitz v. Pittsburgh B. St. Ry. Co., 245 Pa. 9; Hertzberg v. Pitts. Taxicab Co., 243 Pa. 540; Begley v. R. R. Co., 201 Pa. 84. To determine whether this case falls within the exceptional class, it is necessary to consider the injuries sustained. Plaintiffs' car had momentarily halted when it was struck by defendant's truck with such violence as to crush the side of the car and damage it to the extent of $200 and to throw the wife plaintiff to the floor of the car, inflicting a number of external wounds and bruises, one cut upon the head requiring surgical aid. She was about three months advanced in pregnancy and sustained such internal injuries as caused a miscarriage the same night, which confined her in bed for four weeks; during which time and as a result of the miscarriage an operation known as a curettement was performed upon her. She recovered and is in fairly good health, except at times nervous and hysterical. The miscarriage resulted in a displacement of her uterus, so as to prevent conception. This condition can probably, but not certainly, be corrected by such a surgical operation as would keep the patient in bed for two weeks and more or less disabled for two or three months. Mrs. Potts was about 35 years old when injured and the trial judge instructed the jury that the loss of child-bearing power was an element of damage proper for their consideration. An injured party should take reasonable steps to reduce the damages; if that may be done by a simple and safe surgical operation, a refusal to submit thereto should be considered by the jury in mitigation of damages (Leitzell v. Del., L. W. R. R. Co., 232 Pa. 475); but that is not true where the suggested operation is serious and attended with grave danger: Martin v. Pittsburgh Rys. Co.,238 Pa. 528; Kehoe v. Traction Co., 187 Pa. 474; and see Gibbs v. Almstrom, 145 Minn. 35, 11 A.L.R. 227, and note on page 230. This is substantially what the trial judge instructed the jury.

After very careful consideration, we are unable to say Mrs. Potts's verdict was so manifestly excessive as to render the order of the trial court sustaining it a palpable abuse of discretion. That the loss of fecundity is a proper element of damage in a personal injury case is undoubted (Brown et al. v. Quaker City Cab Co., 274 Pa. 289; Alabama, etc., R. R. Co. v. Hill, 93 Alabama 514, 30 Am. State Reports 65; Sutherland on Damages, 3d ed., vol. 4, p. 3611; 8 R. C. L. p. 470; 17 C. J. p. 843), but, under the circumstances, we do not agree with the trial judge that the entire verdict here could be sustained on that ground; there were, however, other elements of damage to which we have referred.

The duty of controlling verdicts so as to prevent injustice belongs emphatically to the trial court (Hollinger v. York Rys. Co., 225 Pa. 419, 426), and where as here that court is composed of three judges it is their duty to sit together as a court in banc on the hearing of rules for new trials, as well those involving claims of excessive verdicts as others. We again call attention to this matter as we did in Gail v. Phila., 273 Pa. 275, 279. All that we there pointed out as correct practice may have been done in the instant case, but the record fails to show it.

The verdict in favor of Mr. Potts was not so unreasonable as to require comment.

The judgments are affirmed.