#### Porter *v.*Zeuger Milk Company, Appellant.

*49June 27, 1939.

Argued April 24, 1939.

Before Keller, P. J., Cunningham, Baldrige, Stadteeld, Parker, Rhodes and Hirt, JJ.

*Charles Lysle Seif,*of *Seif, Evashwick '& Best,*for appellant.

*Emerson Hazlett,*for appellee.

Opinion by

Keller, P. J.,

Plaintiff brought this action of trespass in the county court to recover damages for personal injuries sustained by him in a collision between his automobile and defendant’s truck, which was negligently operated by the latter’s duly authorized agent. In the statement of claim filed by him plaintiff claimed damages in the amount of $2500, the limit of the county court’s jurisdiction.

*50A trial was had before a jury, which resulted in a verdict for the plaintiff of $5000. Defendant filed a motion for new trial on the grounds that the verdict was (1) against the law, (2) against the weight of the evidence, (3) excessive and above the court’s jurisdiction, and (4) not consistent with the credible evidence. Plaintiff filed a remittitur, releasing all of the verdict in excess of $2500 and agreeing to accept the sum of $2500 in full payment and settlement of his action and claim against the defendant.

The court refused the motion for a new trial, reduced the verdict to $2500, pursuant to said remittitur, and entered judgment in that amount.

Defendant appealed.

In *Gratz v. Phillips,*5 Binney 564, 567, (1813), Chief Justice Tilghman said: “In actions sounding merely in damages, the rule is established, that the plaintiff can recover no more than the amount laid in his declaration. If a verdict is found for more, the plaintiff may release the overplus, and take judgment for the amount declared for.” This seems still to be the law. See 6 Standard Penna. Practice, sec. 49, p. 207. It was evidently the “complete remedy” referred to in *Hollinger v. York Rys. Co.,*225 Pa. 419, 425, 74 A. 344.

There would seem to be no just ground for refusing to apply the same rule where the amount claimed in the declaration or statement was within the jurisdiction of the court but the verdict of the jury was in excess of it. The plaintiff should have the like right to release all of the verdict in excess of his demand and of the court’s jurisdiction and enter judgment for the amount claimed by him within such jurisdiction. In *Wilson v. Pullman Co.,*65 Pa. Superior Ct. 499, 507, this court allowed an amendment at bar of the plaintiff’s statement, bringing it within the jurisdiction of the municipal court.

Whether or not an action is properly brought in a court whose jurisdiction is limited as to the amount *51involved, is generally determined by tbe amount claimed in tbe plaintiff’s declaration or statement: *Forrester v. Alexander,*4 W. & S. 311; but tbe statement may be amended by reducing tbe damages claimed to an amount within tbe jurisdiction of the court: *Shlifer v. Bergdoll,*69 Pa. Superior Ct. 86, 88, 89; and this has been allowed even after tbe close of tbe testimony and tbe entry of a decree nisi: *Horwitz v. Wohlmuth,*66 Pa. Superior Ct. 321. Such an amendment was refused in *Reily v. Shafer,*70 Pa. Superior Ct. 289, 291, 292, only because tbe plaintiff bad persistently demanded, both in bis statement and on tbe trial, damages in excess of tbe jurisdiction of tbe municipal court.

At tbe trial of an action for damages for personal injury it is reversible error for tbe court to state to tbe jury tbe amount of damages claimed by tbe plaintiff in bis pleadings: *Hollinger v. York Rys. Co.,*supra, p. 425. Hence the plaintiff is not permitted to state to tbe jury tbe amount of bis claim; nor inform them of tbe limit to their verdict fixed by tbe court’s jurisdiction. Any infraction of tbe established practice in this respect would be ground for tbe withdrawal of a juror and tbe ordering of a new trial. That being the case, tbe plaintiff should not be put to the trouble, delay and hazard of a new trial, *(Culver v. Lehigh V. T. Co.,*322 Pa. 503, 512, 186 A. 70),1 merely because tbe jury, having no knowledge of tbe limit of plaintiff’s claim, returns a verdict in excess both of tbe amount claimed and of tbe court’s jurisdiction. Justice will be done by a release or remittitur of the verdict in excess of tbe court’s jurisdiction and of tbe amount claimed; and the court can always control an excessive or unreasonable verdict by tbe grant of a new trial.

If a verdict for $5000 should be arrived at by a jux*y *52in the county court while the court was in session, and before the jury had separated following the delivery of a sealed verdict, we have no doubt that instead of accepting and recording the verdict, the court could properly instruct the jury that the verdict exceeded the jurisdiction of the court and that no verdict in excess of $2500 could stand, leaving the jury to correct the verdict by reducing it to the jurisdictional amount, $2500. The same result was accomplished by the method used in the court below, and the defendant was not harmed by it.

The trial judge in this case was satisfied that the plaintiff was entitled to the damages claimed in his statement, and even said that the evidence adduced at the trial justified a larger verdict. The defendant offered no defense whatever on the trial. A retrial of the case might result in a repetition of a verdict in excess of $2500.

We are not convinced that any reversible error was committed or harm done to the defendant by the action of the court below.

Judgment affirmed.

1

 “There are circumstances in the present case which would make it inequitable to plaintiffs if, merely because of excessiveness of verdicts, they should be obliged to have their case retried”: *Culver v. Lehigh V. T. Co.,*supra, p. 512.