Dissenting Opinion by
Mr. Justice Musmanno:I see no reason whatsoever for sending • this case back for another trial. • The only one who could possibly be hurt by an affirmance of a single verdict is the hus-.1 band, and he has indicated his willingness to assign his share of the verdict, whatever it may be, to his wife. A release can be drawn, with .the approval of the Court, which will forever save the defendants against any further possible claims as a result of this trespass action and will equally bar the plaintiffs from any further action in the entire matter.
Why saddle on to the taxpayers of Westmoreland County the expense of another trial, why burden the litigants with the inconvenience of another costly proceeding, why tempt the fates for further error Avhich will result in additional appeals — when all this can be avoided by a simple assignment and release?
The complaining defendant does not seek a new trial because of any need for clarity, or information. In the case of Taylor et al. v. Rounds, et al., 349 Pa. 157, 36 A. 2d 817, cited by the majority opinion, a new trial *37was ordered because of the inadequate verdict of $100 for the husband-plaintiff. But the husband-plaintiff here makes no complaint about inadequacy. In fact he makes no complaint at all. The defendant obviously seeks a new trial only because of the hope that the defendant may conceivably completely win the verdict in the new contest. But the courts should not allow themselves to become wheels of chance or arenas of gladiatorial combat, where the result can depend on a fortuitous slip or miscalculation.
When a trial error occurs which may not be remedied by a judicial decree, justice demands that a new trial follow, but when the error can be corrected with a stroke of the pen, it is unjust to require that all the parties involved subject themselves once again to the hardships that every trial imposes: worry, nervous tension, inconvenience, loss of time from work and expenditure of money which no one can afford.
I disagree with the majority’s view that the case of Siidekum v. Animal Rescue League, 353 Pa. 408, 45 A. 2d 59, is not apposite here. In that case Mr. Justice Stf-rx said: . . the manner in which the jury apportioned the total amount between plaintiff acting on behalf of decedent’s estate and plaintiff acting on behalf of those entitled to recover damages for the wrongful death — $955 for the estate and $25,000, reduced to $12,000, for the. decedent’s husband — was clearly erroneous and undoubtedly resulted from the curious fact that the court, without objection on the part of counsel, instructed the jury that the wife’s earnings during the period she would have lived but for the accident constituted an item recoverable on behalf of her husband ...”
“. . . However, we are informed that decedent had no creditors and we learn from an inspection of her will that any recovery obtained by her estate -in-the present action would pass to her husband as residuary legatee. *38As she left no children, and was survived only by her mother and her husband, he is also the sole person entitled to the damages recoverable for her wrongful death (Lehigh Iron Co. v. Rupp, 100 Pa. 95; Lewis v. Hunlock’s Creek & Muhlenburg Turnpike Co., 203 Pa. 511, 53 A. 349). Therefore the apportionment of the total verdicts between the two interests represented by the plaintiff administrator becomes a matter of no practical moment, and for that reason does not, under the facts of the present case, require the granting of a new trial.”
This reasoning holds up a lantern of wisdom on how an incongruous situation may be met. Of course, it would obviously have been better if the jury had returned separate verdicts, and there is no doubt that the rendition of separate verdicts is the proper procedure. But we are confronted here with a condition and not a theory: the jury did not return separate verdicts. However, while returning only a single verdict, the jury made quite clear, in response to the judge’s charge, how it intended the amount involved should be divided. The judge in his charge said: “The husband is responsible for the doctor and hospital bills, and that is why he joined in here as a party plaintiff.” There was no instruction that the husband was entitled to anything more than reimbursement for those expenses. Since the doctor and hospital bills amounted to precisely $573.70, and the amount of the verdict was $6,-513.10, it requires no clairvoyance to conclude that the jury intended the husband to be compensated $573.70, and that the wife was to receive $6,000 for pain, suffering and inconvenience. It is to be noted here also that defendant’s counsel at no time objected to the judge’s charge on the item of damages or the instruction on the verdict, and it was not until four months after the trial that any complaint was recorded about the form of the verdict. '
*39I do not believe that in order to correct the error made by the court below in permitting one verdict instead of two it is necessary to send the cause back for another tedious, protracted, expensive trial. The error on the slate of the first trial can be wiped off with an appellate eraser and the demands of the law and justice will have been completely met. There is precedent for this slate-cleaning procedure. In the case of Wesley et use. v. Rhodes, 113 Pa. Superior Ct. 409, 413, 173 A. 443, which construed this very Act of 1895, Judge Stabtfelb said: “Appellant also assigns for error the fact that one verdict was taken for husband and wife, plaintiffs, while under the Act of May 8, 1895, P. L. 54, separate verdicts should have been taken for each. We can not see that defendant was in any manner injured thereby, so that it was at best harmless error for which we will not reverse.”
In Helsel v. Traction Company, 14 Pa. Superior Ct. 420, 422, the Superior Court declared: “In such case the party injured is the other plaintiff, not the defendant, and if the party injured does not complain of the manner in which the jury has apportioned the damages for which the defendant is liable, it is difficult to see what meritorious cause of complaint the latter can have.”
Judge Rhodes in the case of Fulcomer v. Pennsylvania Railroad Co., 141 Pa. Superior Ct. 264, 271, 14 A. 2d 593, said on this subject: “It is not appellee, if responsible for appellant’s injuries, who could complain of appellant’s recovery of such damages, but her husband.”
While disagreeing with the majority of the Court on the subject of the new trial, I subscribe wholeheartedly to the procedure announced for the avoidance of any situation which brings about an impasse in the disposition of pending business in the lower Courts.