224 PASUPER 276 - Palmer v. Moses

Dissenting Opinion by Cercone, J.:

¶1The lower court granted a mistrial on the basis that the series of verdict slips rendered by the jury made it impossible “to say with certainty that this jury has an understanding of the problems presented to it.” The court refused to grant the motion of Hurtis Moses to *279accept, record and mold the verdicts and ordered a new trial of the action.1 Moses has appealed and the issue before us is whether or not the court below abused its discretion in not accepting and molding the verdict. In upholding the trial judge’s ruling, the majority has failed to keep in mind the principles stated by the Supreme Court in Hornak v. Pittsburgh Railway Co. et al., 433 Pa. 169, 175, 249 A. 2d 312 (1969) : “It is true that a Trial Judge has wide discretion in directing further deliberations by a jury so that the jury might correct matters of informality and uncertainty. (Citing cases). But by the same token, every reasonably possible intendment is to be made in favor of the findings of a jury, and an inconsistency may justifiably be declared to exist only if there is no reasonable theory or conclusion to support the jury’s verdict (citing cases).”

¶2I can sympathize with and understand the difficulties faced by the trial judge in the case now before us in his many attempts to secure from the jury verdict slips in correct form. However I believe the collective content of the verdict slips2 reveals them to evidence, *280consistently and clearly, though, not in technically correct form, their finding that Margaret R. Palmer and Hurtis Moses, the drivers of the two vehicles involved in the accident were both negligent; that Mrs. Palmer was not to recover in her suit against Mr. Moses; and that both Mrs. Palmer and Mr. Moses were liable to Mrs. Helen E. Stroech, a passenger in the Palmer automobile, in the amount of $7,000 and to her husband, Carl P. Stroech, in the amount of $3,000.

¶3The trial judge should have accepted and molded the verdicts to accord with this clearly expressed intent of the jury.

¶4I would therefore reverse his order of mistrial and remand the case for a recording of a verdict for the defendant in the case of Margaret R. Palmer v. Hurtis Moses (appeal at No. 88, April Term, 1972) and for recording of verdicts in favor of Helen E. Stroech in the amount of $7,000 and in favor of Carl P. Stroech, her husband, in the amount of $3,000 against Hurtis Moses and Margaret R. Palmer (appeal at No. 89, April Term, 1972).

Spaulding, J., joins in this dissenting opinion.

¶5 Compulsory non-suit was granted as to Foss Motors, Inc.

¶6 Verdicts in the case of Palmer v. Surtís Moses:

First: “And now, to wit: November 17, 1971, we, the Jurors empanelled in the above entitled case, find Mrs. Palmer negligent and Mr. Moses contributory negligent.”

Second: “And now, to wit, November 17, 1971, we, the jurors empanelled in the above entitled case, find for the defendant.”

Third: “And now, to wit: November 17, 1971, we, the Jurors empanelled in the above entitled case, find for the defendant.”

Verdicts in the case of Helen and Carl Stroech v. Moses and Palmer (additional defendant) :

First: “And now, to wit: November 17, 1971, we, the Jurors empaneUed in the above entitled case, find Mrs. Palmer negligent and Mr. Moses contributory negligent and award Helen 11 Stroech the sum of $10,000.00.”

Second: “And now, to wit, November 17, 1971, we, the jurors empanelled in the above entitled ease, find for the plaintiff and award Helen E. Stroech $10,000.00 and Carl P. Stroech nothing.”

*280Third: “And now, to wit: November 17, 1971, we, the Jurors empanelled in the above entitled ease, find for the plaintiff and award Helen E. Stroech $7,000.00 and Carl P. Stroech $3,000.00.”