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JOHNSON ET AL. v. DEW (12/16/64)

decided: December 16, 1964.

JOHNSON ET AL., APPELLANTS,
v.
DEW



Appeals from order of Court of Common Pleas of Erie County, May T., 1962, Nos. 398 and 399, in cases of Fred H. Johnson v. Lawrence E. Dew et al.; and Edwin J. Richards, Jr. v. Same.

COUNSEL

Lawrence R. Nelson, for appellants.

John A. Bowler, with him John W. English, and English, Gilson, Bowler, Shamp & Levin, for appellees.

Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (Rhodes, P. J., absent). Opinion by Watkins, J.

Author: Watkins

[ 204 Pa. Super. Page 527]

These are appeals from a judgment entered by the Court of Common Pleas of Erie County in favor of the defendant-appellee, Penn Industrial Supply Co., Inc. and against Fred H. Johnson and Edwin J. Richards, Jr., plaintiffs-appellants, upon the whole record, as authorized by the Act of April 20, 1911, P. L. 70, 12 PS § 684; the court below refused a similar motion on behalf of the defendant, Lawrence E. Dew.

The Act provides that if, as here, a point requesting binding instructions was presented and the jury

[ 204 Pa. Super. Page 528]

    have disagreed, the appellee may "move the court to have all the evidence taken upon the trial duly certified and filed so as to become part of the record, and for judgment in his favor upon the whole record; . . .". Judgment can be entered for the defendant on the whole record only if the evidence, viewed in the light most advantageous to the plaintiff, resolving all conflicts therein in his favor, and giving him the benefit of every fact and inference pertaining to the issues involved which may be reasonably deduced therefrom, would not justify a verdict and judgment in his favor. Stabelli v. Somerton B. & L. Assn., 343 Pa. 460, 23 A.2d 477 (1942); Mellott v. Tuckey, 350 Pa. 74, 38 A.2d 40 (1944).

However, before summarizing the facts of this case in view of the above, we must do so with regard to the law in the particular circumstances of this case, i.e., one who calls the adverse party as upon cross-examination is concluded by his testimony if uncontradicted and credible. Most of the testimony in this case was given by the defendant pilot Dew, an adverse party who was called as upon cross-examination. White v. Chester Municipal Authority, 349 Pa. 118, 36 A.2d 455 (1944); Peters v. Shear, 351 Pa. 521, 41 A.2d 556 (1945).

There is a clear distinction between the entry of a judgment non obstante veredicto under the Act of 1905, as amended, and the entry of a judgment upon the whole record under the Act of 1911. "In the first category, the facts are conclusively established, as a matter of law, by a jury's verdict, while in the second group there has been a disagreement of the jury and no one but the court can find the facts in passing upon a motion for judgment under the Act of 1911. . . . But, a trial court now has the power to enter judgments in such circumstances, -- a power which will no doubt be appropriately and effectively exercised whenever

[ 204 Pa. Super. Page 529]

    the facts are such that reasonable and sensible men can not differ about them or draw conflicting inferences from them." DeWaele v. Metropolitan Life ...


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