Appeal, No. 178, Oct. T., 1962, from order of County Court of Philadelphia, June T., 1959, No. 2334, in case of Williams Retail Stores, Inc. v. Abraham Toltzis. Order affirmed.
Irwin N. Rosenzweig, with him Rosenzweig, Krimsky & Goichman, for appellant.
Benjamin H. Levintow, for appellee.
Before Rhodes, P.j., Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (ervin, J., absent).
[ 199 Pa. Super. Page 211]
OPINION BY MONTGOMERY, J.
This is an appeal from the order of the Philadelphia County Court awarding a new trial to the appellee against whom a jury had rendered a verdict in the sum of $1,740.
[ 199 Pa. Super. Page 212]
On July 8, 1948, appellant, Williams Retail Stores, Inc., entered into a lease with the appellee, Abraham Toltzis, to occupy a retail store.
Sometime in July, 1958, there was an overflow of water in the catch-basin in the basement which did extensive damage to appellant's carpeting, bags, hangers, and boxes, all of which were located in said basement. There had been prior leakage of the same plumbing, with several complaints to the appellee who promised to remedy the condition.
Appellant filed a complaint in trespass against the appellee alleging the above facts and attributing the damage to defective plumbing. Appellee did not file any answer and thereby admitted the allegations concerning his control over the basic plumbing in the building. The appellee claimed that the overflow came from an improperly maintained air conditioner under the control of the appellant. At the trial the issue of liability was resolved in favor of the appellant, and the jury rendered a verdict in the amount of $1,740. The appellee's motion for judgment n.o.v., raising the question of liability, was dismissed by the court below and no appeal was taken.
The court en banc did grant the landlord's motion for a new trial on the ground that the verdict was in excess of the amount of damages claimed in the complaint, and was generally excessive. The opinion further states that a new trial should be granted in the "interest of justice". It is from this grant of a new trial that this appeal has been taken.
A reviewing court will not reverse the grant of a new trial unless there was a clear abuse of discretion or an error of law which controlled the outcome, and the error is the sole reason for granting the new trial. Bohner v. Eastern Express, Inc., 405 Pa. 463, 175 A.2d 864; Segriff v. Johnston, 402 ...