Summary
In Columbia Fur Co. v. Needro, 94 Pa. Super. 592, 595 we said: "While it has been held that a court will not order a new trial against two concurring verdicts upon a question of fact except in an extraordinary case (Clemson v. Davidson, 5 Binney 392) we are of opinion that there are features in the evidence of this case which render it somewhat exceptional in character;" we therefore concluded that there was no abuse of discretion below in awarding the third trial.
Summary of this case from Itzkovich v. Royal Electro. Co.Opinion
October 16, 1928.
December 13, 1928.
Practice C.P. — New trials — Discretion of court — Abuse of discretion.
An order granting a new trial will be affirmed where the judge who presided at the trial stated in his opinion that notwithstanding the fact that two successive juries had rendered verdicts for the plaintiff, he was convinced that the weight of the evidence established that the note upon which the suit was brought was not the instrument of the defendant, and that, therefore, he could not conscientiously permit the verdict to stand.
Under such circumstances the single question before the appellate court was whether or not the order amounted to an abuse of discretion. In this case there was no abuse of discretion.
Appeal No. 240, October T., 1928, by plaintiff from judgment of C.P., No. 2, Philadelphia County, September T., 1926, No. 11,878, in the case of Columbia Furniture Company v. Henry Needro.
Before HENDERSON, TREXLER, KELLER, LINN, GAWTHROP and CUNNINGHAM, JJ. Affirmed.
Assumpsit on issue on rule to open judgment. Before LEWIS, J.
Rule for new trial.
The facts are stated in the following opinion of the court below:
This case has been twice tried; on the first occasion before GORDON, J., and on the last occasion before LEWIS, J. In each instance, the jury returned a verdict in favor of the plaintiff for the full amount of the judgment entered upon the note, the execution of which by the defendant is disputed.
A new trial was granted after the first verdict, because of a belief by the trial judge that the weight of the credible evidence disclosed that the note was not genuine; that it had not been signed by or on behalf of defendant. The writer, who presided at the second trial, is also convinced that the weight of the evidence establishes that the note is not the instrument of defendant. Hence, we cannot conscientiously permit the verdict in plaintiff's favor to stand; to do so would be to allow the consummation of what the judges of this court believe to be a wrong upon the defendant. We have given deliberate consideration to the very important fact that two juries have resolved the controversy against the defendant. The principal witness against him was a woman of good appearance and address, and it was not easy to believe that she deliberately made wrongful use of defendant's name. There are circumstances connected with the case, however, which would incline us to the view that this witness did sign the defendant's name, or cause it to be signed, to the note, without the expectation that defendant would incur any loss thereby, the witness being sure of her own purpose and ability to meet the obligation for which the note was given as security.
The court made absolute the rule. Plaintiff appealed.
Error assigned was the decree of the court.
Harry J. Gerber, for appellant. — A new trial after two concurring verdicts should not be granted except under extraordinary circumstances: Willis v. Bucher, 2 Binney 455 (1810); Kebler v. Arthurs, 3 Binney 26 (1810); Clemson v. Davidson, 5 Binney 392 (1813); Swalm v. Walbourn, 15 Lanc. R. 118 (1897); Commonwealth v. Pistorius, 12 Phila. 550; Murray v. Simpson, 2 Phila. 174; Howard Express Company v. Wile, 64 Pa. 201 (1870).
Willis B. Heidinger, for appellee.
Argued October 16, 1928.
This is an appeal by the plaintiff from an order granting a new trial after a second jury had rendered a verdict against the defendant. The sole question of fact at each trial was whether a certain judgment note was signed by defendant or by someone for him, or whether the name of the defendant was a forgery.
The judge who presided at the second trial states in his opinion that even in view of the fact that two successive juries have rendered verdicts for the plaintiff, he is still convinced that the weight of the evidence establishes that the note is not the instrument of the defendant, and that therefore he could not conscientiously permit the verdict to stand.
The single question before us is whether under all the circumstances the order amounted to an abuse of judicial discretion. After reading the record we are not convinced that it did. While it has been held that a court will not order a new trial against two concurring verdicts upon a question of fact except in an extraordinary case (Clemson v. Davidson, 5 Binney 392), we are of the opinion that there are features in the evidence of this case which render it somewhat exceptional in character.
Therefore the order is affirmed.