Meckes v. Pocono Mountain Water Supply Co.

Opinion by Mr. Justice Mitchell, The case was tried by the court below in the absence of the defendant and its counsel, but it was regularly on the trial list, and the requirements of the rales of court had been complied witli even if the defendant had not notice in fact of the date of trial, though it appears probable that it had. The plaintiff therefore was within his rights in demanding trial and the court in proceeding. It was not necessary for the court in its charge to refer to defendant’s absence, but it was not error to do so as a matter of explanation for the satisfaction of the jury. The verdict was for $3,000, but the court put the plaintiff to the choice between a new trial and a reduction of the verdict to $2,000, and the plaintiff accepted the latter alternative. It is now complained by appellant that this action was irregular and an abuse of discretion, because there was no evidence in the case suggestive of that amount. It would be sufficient answer to this, that it does not appear how the appellant was hurt'by it. The amount fixed by the court was lower than the lowest valuation of the land testified to before the jury. The verdict was in accordance with the evidence, and the court might have let it stand without error. [16] The reduction to $2,000, therefore, even if it had been arbitrary, would have been in appellant’s favor, and not assignable by him for error as it did him no harm. But it was not an arbitrary or improper use of discretion. The jury at the trial had a right to regard the valuation by plaintiff’s witnesses as excessive, and might have given a verdict for a smaller sum in accordance with their own estimate. On the rule for a new trial the court had the same right to scrutinize the testimony, especially after a trial in the absence of defendant, and to put the plaintiff to his election to reduce the verdict or go to trial again before a new jury. In fixing the amount at $2,000, just as the jury might have done, the judge no doubt had in his mind a valuation based on the- whole case, and that it was very nearly or quite correct is fairly inferable from its acceptance by the plaintiff. Judgment affirmed.