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WERNER v. AUNKST. (07/21/55)

July 21, 1955

WERNER, APPELLANT,
v.
AUNKST.



Appeal, No. 61, Oct. T., 1955, from order of Court of Common Pleas of Lycoming County, May T., 1953, No. 126, in case of Minnie S. Werner v. Florence Aunkst. Order affirmed.

COUNSEL

George M. Hess, Jr., for appellant.

Daniel F. Knittle, with him Greevey & Knittle, for appellee.

Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.

Author: Woodside

[ 178 Pa. Super. Page 404]

OPINION BY WOODSIDE, J.

This comes before us on appeal from the granting of a new trial after a verdict for the plaintiff in the amount of $2000 in an action of assumpsit involving the sale of a restaurant.

[ 178 Pa. Super. Page 405]

The lower court stated in its opinion as follows: "Reasons given in support of the motion for new trial strike at many rulings of the Court. Most of the rulings were correct. None is reversible.

"The real argument of the plaintiff seems to hinge around the Court's charging about a third agreement, and about the Court failing to give proper emphasis to an exhibit that was introduced in evidence by defendant."

After reviewing the evidence the trial judge concluded the court's opinion with "We are of the opinion that the interest of right and justice requires that a new trial be granted."

Where there is an appeal from an order granting a new trial, the question before this Court is whether there has been a palpable abuse of discretion by the court below. The presumption is that the grant of a new trial is justified even when the reason given therefore is insufficient, unless the court expressly states it is the only reason. An award of a new trial may not be based solely on "the interest of justice." However, if it appears from our examination of the entire record, and the judge's opinion that he justifiably considered the verdict to be against the weight of the evidence, an order requiring a new trial will not be disturbed. Morse Boulger Destructor Co. v. Arnoni, 376 Pa. 57, 101 A.2d 705 (1954); Bellettiere et al. v. Philadelphia, 367 Pa. 638, 81 A.2d 857 (1951).

From our independent examination of the evidence we conclude that the granting of a new trial was a justifiable exercise ...


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