Summary
In McGinnis v. Murphy (23 Wkly. Dig. 215) an amendment allowing the substitution of the name of the defendant's wife in the place of his own as the owner of the real estate in order to conform the pleading to the proof, was condemned as permitting a new defense, and, therefore, not authorized.
Summary of this case from Moisen v. BurrOpinion
October 2, 1941.
November 24, 1941.
Appeals — Order refusing new trial — Statements of court below — Requirements of fairness and justice — Inadequacies of charge to jury — Conflicting evidence.
An order granting a new trial was affirmed on appeal where the opinion of the court below stated that the trial judge had failed to charge the jury upon matters which were basic and fundamental, that his instructions did not clarify the issues, and that fairness and justice dictated that a new trial be had, and where, although plaintiff claimed that judgment should be entered in his favor because he had been entitled to binding instructions, it further appeared that issues of fact were raised due to conflicting testimony.
Argued October 2, 1941.
Before SCHAFFER, C. J., MAXEY, DREW, LINN, STERN, PATTERSON and PARKER, JJ.
Appeal, No. 113, March T., 1941, from order of C. P. Allegheny Co., April T., 1939, No. 1943, in case of John Murphy v. B. B. McGinnis. Order affirmed.
Assumpsit. Before NELSON, P. J., specially presiding.
Verdict for plaintiff. Motion by defendant for new trial granted. Plaintiff appealed.
Elverton Hazlett Wicks, with him C. Elmer Bown, for appellant.
John Duggan, Jr., and Robert A. Jarvis, for appellee, were not heard.
This is a suit by the holder of a check against one of the indorsers. Various defenses were interposed, some of them raising questions of fact. The jury found a verdict for plaintiff. The court granted a new trial.
In the opinion of the court in banc, written by the trial judge, it is stated that he failed to charge the jury upon matters which were basic and fundamental and that he did not so instruct them as to clarify the issue and to enable them to comprehend the questions that they were to decide. He states "that fairness and justice dictate that a new trial be had." Plaintiff insists that he was entitled to binding instructions and that judgment should now be entered in his favor. In view of the statements of the trial judge above mentioned, and because issues of fact were raised due to conflicting testimony, we will not interfere with the order granting a new trial: Weinfeld v. Funk, 342 Pa. 160, 20 A.2d 206.
Order affirmed.