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September 3, 1958

PENNSYLVANIA TURNPIKE COMMISSION, to the Use of Alex FINK and Nathan Fink, trading as Perry Construction Co.
SEABOARD SURETY COMPANY. WENGER BROTHERS, INC. v. UNITED STATES FIDELITY & GUARANTEE CO. and Alex Fink and Nathan Fink, trading as Perry Construction Co., a partnership

The opinion of the court was delivered by: EGAN

These two actions were consolidated for trial by jury. A joint motion for a new trial has been filed on behalf of the losing parties, i.e., Seaboard Surety Company, in Civil Action No. 19974 and Wenger Brothers, Inc., in Civil Action No. 21794. The motion will be denied.

The cases are here by reason of diversity of citizenship of the parties. They grow out of the construction and completion of a portion of the Northeast Extension of the Pennsylvania Turnpike.

 Howard Worthington (Worthington) was awarded the prime contract. He sub-contracted all the right of way excavation work to Wenger Brothers, Inc. (Wenger). Wenger, in turn, sub-contracted all the blasting and rock excavation on the job to the Perry Construction Company (Perry), of which Alex Fink and Nathan Fink are partners. Both sub-contractors are bonded and the appropriate surety company is named as defendant in each action.

 In Civil Action No. 19974, Perry, as use-plaintiff, alleges that according to its sub-contract with Wenger, it was to be compensated on the basis of the amount of cubic yards of rock drilled and blasted; that a certain amount of rock was drilled and blasted for which it has not been paid. Wenger, through its surety, Seaboard Surety Company (Seaboard), claims that Perry did not blast as much as it claims and that that which was blasted was not done in accordance with the terms of the contracts involved. This latter allegation gives rise to Civil Action No. 21794.

 There, Wenger alleges that Perry's failure to blast in accordance with the terms of the governing contract and Perry's delays in prosecuting this work forced Wenger to hire and use extra equipment and men to complete the job. These additional expenses, Wenger claims, resulted in damage far in excess of the amount admittedly due Perry. As the cases went to the jury, the latter suit was treated as a counter-claim to the amount claimed by Perry in the earlier action.

 After an extensive charge, the case was submitted to the jury, which later returned with a verdict in favor of Perry in the amount of $ 111,323.98 in Civil Action No. 19974. In Civil Action No. 21794, the jury disallowed the entire claim of Wenger, returning a verdict therein in favor of the defendants, United States Fidelity & Guarantee Company and Perry.

 Trial counsel for Wenger and Seaboard were evidently satisfied with the Court's charge to the jury because they took no exceptions and withdrew their points for charge which they had earlier submitted. However, the jury's verdicts caused them to file the joint motion for a new trial which as now before us.

 While Wenger and Seaboard complain on several grounds, one of the most important is that the Court erred when it affirmed Perry's point for charge number 5. During the course of trial, Wenger and Seaboard called the Perry foreman, Sanford Vanderveken and a DuPont powder salesman, C. Huber Blocher, for direct examination. Each witness testified favorably on direct, and unfavorably on cross. The Court charged:

 'No. 5. I will affirm, and that reads as follows:

 'Mr. Vanderveken and Mr. Blocher are witnesses for the defendant. The rule is that a party who produces a witness holds him out as worthy of belief, and is bound by his testimony even so far as it might be against him, and is, indeed, concluded by his testimony, unless it is contradicted by the testimony of other witnesses or the circumstances surrounding the case.

 'I will affirm that in part as modified by my instructions.' (N.T. 768-769.)

 Wenger and Seaboard now object to the charge on the ground that it created an improper inference. The arguments presented by them fall short of the Pennsylvania authorities cited, although the Court is in doubt as to whether State or Federal law is applicable in the first instance. However, in view of the fact that counsel failed to take exception to the charge at the time of trial, this question need not be passed upon at this time. Rule 51 of the Federal Rules of Civil Procedure clearly states:

 '* * * No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.' *fn1"

 This alone is dispositive of the question before the Court.

 We next come to Wegner's and Seaboard's contention that the verdicts are contrary to the overwhelming weight of the evidence. With this, we disagree. In considering this phase of the motion, we must remeber that where the evidence is conflicting, all the evidence must be viewed in the light most favorable to the ...

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