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MILLENSON v. CITY STORES COMPANY (05/23/55)

May 23, 1955

MILLENSON
v.
CITY STORES COMPANY, APPELLANT.



Appeal, No. 166, Jan. T., 1955, from order of Court of Common Pleas No. 5 of Philadelphia County, Sept. T., 1952, No. 6106, in case of Jon Millenson, a minor by his guardians, Irving Millenson et ux. v. City Stores Company. Order reversed.

COUNSEL

Ralph S. Croskey, with him Croskey & Edwards, for appellant.

David N. Bressler, with him David V. Shapiro and Shapiro, Rosenfeld, Stalberg & Cook, for appellee.

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

Author: Bell

[ 382 Pa. Page 39]

OPINION BY MR. JUSTICE BELL

The Court below granted a new trial on the ground that the verdict rendered for the defendant was against the evidence and against the weight of the evidence, and in the interest of justice. This appeal followed.

[ 382 Pa. Page 40]

The pertinent law is thus stated in Decker v. Kulesza, 369 Pa. 259, 263, 85 A.2d 413: "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: Jones v. Williams, 358 Pa. 559, 58 A.2d 57; Martin v. Arnold, 366 Pa. 128, 77 A.2d 99; Stewart v. Ray, 366 Pa. 134, 76 A.2d 628."

Expressed in another way, we will not reverse where the lower Court has granted a new trial for the reasons above set forth "... unless there is a clear abuse of discretion or an error of law which necessarily controlled the grant of the new trial or the outcome of the case": Edelson v. Ochroch, 380 Pa. 426, 429, 111 A.2d 455.

Plaintiff brought an action in trespass for assault and battery. The testimony was very brief. Plaintiff, 19 years of age, was employed on April 1, 1952 as a section manager in the subway store of Lit Brothers, which was operated by defendant. One of plaintiff's duties was to handle refunds by issuing credit slips to customers who had returned merchandise. Plaintiff was required to sign his name on the slips before issuing them. Two of these slips, in a handwriting which plaintiff admitted "was practically the same" as his, had been fraudulently issued, returned, and the cash received therefor. Defendant was making an investigation to ascertain who was responsible for the fraud. Plaintiff, at defendant's request, went to the office of the chief detective, a Mr. Smith, where he was shown two credit slips "bearing a facsimile of his signature." He was accused of having issued them for unreturned merchandise. He was then told if he didn't confess to writing out the refund slips that Smith would call the police. Plaintiff denied the

[ 382 Pa. Page 41]

    accusation. "... I was told to stand up, and then he came over and he patted all my pockets and things to see if the credit book was there, and then he asked me to give him my wallet ... and said there was a credit book missing, that you have to find the credit book." Plaintiff showed him his wallet which contained nothing incriminating. Plaintiff also agreed to have his apartment searched and nothing incriminating was found there. Smith then said he ...


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