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F. W. WISE COMPANY v. BEECH CREEK RAILROAD COMPANY ET AL. (03/20/70)

decided: March 20, 1970.

F. W. WISE COMPANY, INC.
v.
BEECH CREEK RAILROAD COMPANY ET AL., APPELLANTS



Appeal from judgment of Court of Common Pleas of Clearfield County, Nov. T., 1962, No. 376, in case of F. W. Wise Gas Company, Inc. v. Beech Creek Railroad Company et al.

COUNSEL

Paul Silberblatt, with him Bell, Silberblatt & Swoope, for appellants.

William W. Litke, with him John Gates, and Litke, Gettig, Flood & Geiser, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Pomeroy. Mr. Justice Roberts concurs in result.

Author: Pomeroy

[ 437 Pa. Page 390]

Plaintiff-appellee (Wise) sued the three railroad company defendants, all part of The New York Central System (herein collectively referred to as "the Railroad") jointly for damages for breach of an alleged contract to sell to Wise for the sum of $15,000 certain real estate owned by the Railroad in the Borough of Clearfield, Pennsylvania, and not needed for railroad purposes ("the property"). The defenses of the Railroad were that no contract had been entered into; that, if there were a contract, it was made by agents who had no authority to bind the Railroad; and that, assuming an otherwise valid contract, it did not meet the requirements of the Statute of Frauds. These matters were left to the jury by the trial judge, who overruled the Railroad's motions for compulsory non-suit and for binding instructions. The jury returned a verdict for plaintiff in the amount of $23,500. The Railroad's motion for a new trial was refused, and judgment

[ 437 Pa. Page 391]

    was entered on the verdict. This appeal followed. We affirm.

At the outset we are met with the problem of what questions are properly before us on this appeal. The Statement of Questions Involved, as contained in appellants' brief, is reproduced in the margin.*fn1

[ 437 Pa. Page 392]

Question No. (1) is apparently based on the first reason given in the motion for a new trial, viz., "The court erred in refusing to grant the Railroad's motion for non-suit at the conclusion of plaintiff's case." We hold that the refusal of a motion for non-suit is not a valid reason for a new trial in this or any case where the defendant offers testimony. A defendant's right to request a non-suit is based on his offering no evidence, and the court cannot grant a non-suit after the introduction of evidence by the defendant. Act of March 11, 1875, P. L. 6, § 1, 12 P.S. § 645; Highland Tank and Manufacturing Company v. Duerr, 423 Pa. 487, 225 A.2d 83 (1966); Jordan v. Sun Life Assurance Page 392} Company of Canada, 366 Pa. 495, 500, 77 A.2d 631 (1951). Cf. Kukich v. Serbian Eastern Orthodox Church of Pittsburgh, 415 Pa. 28, 202 A.2d 77 (1964). If a non-suit motion made at the close of the plaintiff's case is refused by the trial judge, the defendant has an option either to rest on that motion and present no evidence, or to put in a case. If the defendant elects to proceed, as did the Railroad in the present case, the non-suit stage is over, and the correctness of the court's ruling is moot.*fn2 Whether Wise's case was adequate for submission to the jury is therefore not a question properly before us on this appeal.

Question No. (5) of the Statement raises the question of the Statute of Frauds, which the Railroad asserted as a defense in its answer and again in its points for charge. Unfortunately for the Railroad, however, the defense was not raised in the motion for new trial. No error was claimed with regard to the court's rulings on the points for charge. The new trial motion states (point 4) that "[t]he court erred in its charge to the jury", but this is obviously too general to merit attention. The subject of the Statute of Frauds is not mentioned in the ...


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