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FALGIATORE v. FALGIATORE (09/27/54)

September 27, 1954

FALGIATORE, APPELLANT,
v.
FALGIATORE



Appeal, No. 92, Jan. T., 1954, from judgment of Court of Common Pleas No. 6 of Philadelphia County, June T., 1952, No. 3367, in case of Galliano Falgiatore v. Thomas Falgiatore. Judgment affirmed. Assumpsit. Before LEVINTHAL, J. Verdict for defendant and judgment thereon. Plaintiff appealed.

COUNSEL

Thomas C. DiNardo, for appellant.

Thomas I. Guerin, with him Isadore Penn, for appellee.

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

Author: Arnold

[ 378 Pa. Page 587]

OPINION BY MR. JUSTICE ARNOLD

In this action of assumpsit the court below entered judgment on the verdict of the jury in favor of the defendant.

[ 378 Pa. Page 588]

The plaintiff appeals from the refusal of his motions for judgment non obstante veredicto and for a new trial.

The plaintiff presented no point for binding instructions and, therefore, a judgment n.o.v. cannot be entered, nor can the want of a timely presentation of a point for such instructions be later supplied nunc pro tunc: Essex Packers Limited v. Kisecker, 373 Pa. 351, 356, 357, 95 A.2d 544.

Nor is the plaintiff entitled to a new trial, for a study of the record discloses that the trial was full and complete and without error. The evidence disclosed the facts to be as follows: The parties are first cousins who live in the same locality in the city of Philadelphia. Plaintiff has not been financially successful although the defendant has been. Plaintiff had been having some difficulties with his wife and in the early part of 1949 asked the defendant to help him get things straightened out. Defendant discussed the marital difficulties with the plaintiff's wife on several occasions, and matters seemed to have been arranged satisfactorily. A little later the defendant went to the plaintiff's house and at his arrival only the wife was there. Plaintiff came in and, without any explanation, ordered the defendant to leave. The following morning the plaintiff called defendant by telephone and stated: "I want $10,000 or else you get killed. If I can't do it I will get somebody else to kill you." He continued to make like threats as well as to threaten to talk about the matter to the defendant's wife and family. At no time did he charge the defendant with adultery, but gave the impression that he was about to do so. About all that appears is that he objected to the familiarity of the defendant with his wife.

Early in May, 1949, plaintiff had suffered a nervous breakdown, and because of ...


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