Appeal, No. 1, April T., 1963, from judgments of Court of Common Pleas of Butler County, June T., 1961, Nos. 66 and 67, in case of Donald Craig et ux. v. Robert Ryan et al. Judgment affirmed.
Robert F. Hawk, with him Painter & Painter, for appellant.
William C. Robinson, with him Henninger & Robinson, for appellees.
Lee C. McCandless, with him McCandless & McCandless, for appellee.
Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).
[ 201 Pa. Super. Page 308]
OPINION BY MONTGOMERY, J.
This appeal is from a judgment in plaintiff's favor against appellant-tenant, Ryan, alone, in an action of trespass. The jury was directed by the court to find for the other defendants, McBride and Altmire, the property owners; and judgment has since been entered in their favor, from which no appeal has been taken. They deny further interest in the matter but, nevertheless, at the request of the trial judge, appeared at the
[ 201 Pa. Super. Page 309]
argument before the lower court on this appellant's post trial motions for judgment n.o.v. and a new trial,*fn1 and now appear before us as appellees. In view of the broad powers vesting in the appellate courts in the grant of new trials, as stated in Ferruzza v. Pittsburgh, 394 Pa. 70, 145 A.2d 706, we shall consider the entire matter, including their participation.
The issues before us are all related to the question of who was in possession and control of the area in which the wife-plaintiff fell. Particularly, the question is: Did the lower court err in directing a verdict for the landlords because there was no evidence to show that they were in possession and control, and in submitting that question to the jury as it concerned appellant-tenant.
None of the defendants offered any evidence as to the nature of the tenancy, and we are, therefore, limited to that offered by plaintiffs. The pleadings consist of the complaint and the answer of the landlords. Ryan, the tenant, filed no answer.
Plaintiff offered certain parts of the pleadings into evidence. Specifically, paragraph two of the complaint was offered as evidence to prove that McBride and Altmire were the owners of the property (which was in fact two properties) under two deeds dated June 12, 1945 and October 6, 1947, respectively, with "a frame dwelling, store building with apartment on the ...