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PENDLETON v. PHILADELPHIA TRANSPORTATION COMPANY (03/22/54)

March 22, 1954

PENDLETON, APPELLANT,
v.
PHILADELPHIA TRANSPORTATION COMPANY



Appeal, No. 15, Jan. T., 1954, from order of Court of Common Pleas of Montgomery County, Nov. T., 1951, No. 366, in case of William James Pendleton et ux. v. Philadelphia Transportation Company. Order affirmed.

COUNSEL

Moe Henry Hankin, with him Benjamin R. Shanken and Hankin, Hankin & Shanken, for appellants.

Frank R. Ambler, with him Jay B. Leopold, for appellee.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Stearne

[ 376 Pa. Page 599]

OPINION BY MR. JUSTICE ALLEN M. STEARNE

This appeal is from the grant of a new trial in a trespass action. Plaintiff recovered a verdict. The question raised is whether the court below abused its discretion in granting defendant's motion for a new trial.

An order of the trial court awarding a new trial will not be disturbed unless it clearly is apparent that there has been a palpable abuse of discretion. Mr. Justice JONES concisely stated this principle in Streilein v. Vogel, 363 Pa. 379, 69 A.2d 97, where he said (p. 385): "We have declared over and over again that the granting of a new trial lies within the inherent power of a trial court and that an exercise thereof will not be interfered with on review unless the record shows such action to be a clear abuse of discretion..."

[ 376 Pa. Page 600]

In Tupponce v. Pennsylvania Railroad Company 358 Pa. 589, 57 A.2d 898, we said (p. 590): "'"... We will not reverse an order awarding a new trial unless a palpable abuse of discretion on the part of the trial judge is disclosed or unless an erroneous rule of law, which in the circumstances necessarily controls the outcome of the case, is certified by the trial judge as the sole reason for his action": Marko v. Mendelowski, 313 Pa. 46, 169 A. 99': Girard Tr. Co. v. Geo. V. Cresson Co., 333 Pa. 418, 422, 5 A.2d 221". And in Bellettiere v. Philadelphia, 367 Pa. 638, 81 A.2d 857, our present Chief Justice HORACE STERN made a comprehensive analysis of the principles governing the grant or refusal of a new trial and in a footnote he collected a host of supporting cases. A trial court must give reasons for its action. Conclusions alone, such as "interests of justice", are insufficient: Beal v. Reading Company, 370 Pa. 45, 49, 87 A.2d 214.

In the present case the reason assigned by the court for the grant of a new trial was that "the verdict was against the weight of the evidence". See Harris v. Ruggles Lumber Company, 376 Pa. 252, 254, 101 A.2d 917. When such a reason is assigned, it is the duty of an appellate court to examine the testimony in order to determine whether or not the court abused its discretion. In Decker v. Kulesza, 369 Pa. 259, 85 A.2d 413, the reason given by the court below for granting a new trial was that the verdict was against the weight of the evidence. Mr. Justice CHIDSEY said (p. 263): "While an award of a new trial is an inherent power of the court and its exercise a matter of discretion, the discretion is not an absolute one and it is the duty of this Court to review and determine whether there has been an abuse of discretion: [citing cases]...." The judgment in that case was reversed because of the conflicting testimony; the issue was for the jury. In our view the verdict was not against the

[ 376 Pa. Page 601]

    weight of the evidence. See also: Carroll v. Pittsburgh, 368 Pa. 436, 84 A.2d 505; Phillips v. Cowden, 370 Pa. 288, 88 A.2d 404; Wexler v. Bonwit, Teller & Company of Philadelphia, 372 Pa. 250, ...


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