Appeals, Nos. 26 and 27, March T., 1953, from order of Court of Common Pleas of Allegheny County, Oct. T., 1949, No. 2157, in case of Margaret E. Gawron et vir. v. Samuel F. Levine, trading as Star Jobbing Company and City of Pittsburgh. Order affirmed.
Kim Darragh, with him George Y. Meyer, for individual defendant, appellant.
Louis Dadowski, Assistant City Solicitor, with him Anne X. Alpern, City Solicitor, for defendant, City of Pittsburgh, appellant.
Lee L. Leonard, for plaintiffs, appellees.
Before Stern, C.j., Stearne, Jones, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE JONES
The plaintiffs, Margaret E. Gawron and her husband, sued the defendants jointly for damages for personal injuries received by the wife-plaintiff in a fall allegedly caused by a negligent condition in the curbing of a sidewalk. The abutting property, which was improved with a building, was owned by the defendant city but at the time of the accident was, and for some time prior thereto had been in the exclusive possession of the individual defendant as tenant. The jury returned a verdict in favor of both defendants. Upon motion of the plaintiffs, the court en banc, acting by the late Judge EGAN who had also been the trial judge, awarded a new trial. From that order, each of the defendants has appealed. The sole legal question presently involved is whether the court below erred in granting a new trial.
In the opinion filed with the entry of the order, the learned court below expressed the belief that the trial judge had committed error harmful to the plaintiffs
when, in charging, at the request of one of the defendants, "on the principle of 'false in one, false in all'", he had inadvertently limited the pertinency of the rule to the credibility of the wife-plaintiff's testimony. As stated by Judge EGAN, -- "This was error, and we are not in a position to say that it did not have some harmful effect upon the plaintiffs' case. The instruction should have been given in general terms, with an explanation that it applied to all witnesses." The opinion then continued, -- "After giving consideration to this part of the charge and to several personal matters that arose during the trial, we are of the opinion that the interests of justice would best be served by the granting of a new trial."
Upon the individual defendant's taking an appeal, his counsel in his notice thereof to the trial judge requested that the court "amplify or elaborate on... 'the several personal matters that arose during the trial'" to which the opinion supporting the new trial order had made reference. As a consequence, Judge EGAN, acting for the court en banc, filed a supplemental opinion wherein he related a matter that had occurred at trial which plaintiffs' counsel considered to be a reflection upon his honesty and integrity and which "could easily have been taken by the jury as indicating the [plaintiffs'] attorney admittedly stole [a material physical exhibit], since he had not shown otherwise" as impliedly suggested by an interpolation of the trial judge in his charge to the jury. This circumstance was ...