72 Pa. Super. 498 | Pa. Super. Ct. | 1919
Opinion by
As the record stood at the conclusion of the testimony it would have been error for the trial judge to have directed a verdict in favor of the plaintiff for either $600 or $60, for a question of fact was involved which required the determination of the jury, viz: Whether the insured’s death was due wholly to bodily injury sustained solely through external, violent and accidental means, or was due in part to disease or bodily infirmity. The fact that the jury decided that question in favor of the plaintiff did not alter or enlarge the powers of the court under the Act of April 22, 1905, P. L. 286, authorizing the entry of judgment non obstante veredicto upon the whole record.
In the case of Dalmas v. Kemble, 215 Pa. 410, Mr. Chief Justice Mitchell gave a luminous exposition of the effect and operation of the act: “He is ‘to enter such judgment as should have been entered upon that evidence’ or in other words to treat the motion for judgment as- if it was a motion for binding directions at the trial and to enter judgment as if such direction had been given and a verdict rendered in accordance. What the judge may do is still the same in substance, but the time when he may do it is enlarged so as to allow deliberate review and consideration of the facts and the law upon the whole evidence. If upon such consideration it shall appear that a binding direction for either party would have been proper at the close of the trial the court may enter judgment later with the same effect. But on the other hand, if it should appear that there was conflict of evidence on a material fact, or any reason why there could not have been a binding direction, then there can be no judgment against the verdict now.” Or as stated briefly in later decisions, a judgment non obstante may be entered only in cases where binding direction to the jury would have
As the trial judge could not have given binding direction to the jury in favor of the plaintiff for $60 and interest at the trial, the court below could not on a motion for judgment non obstante enter judgment for that amount; it could not tack the finding of the jury as to the cause of the insured’s death to its own determination of the legal question as to whether under the facts in the case, the failure to give written notice to the company within ten days from the happening of the accident limited the liability of the company to one-tenth of the amount that would otherwise be payable. If it concluded that error had been committed on the trial it should have ordered a new trial.
The assignments of error are sustained. Inasmuch, however, as the defendant may desire a review of the rulings of the court on the legal questions raised at the trial to which it took exception, an opportunity will be allowed for it to secure the same by appeal: Jaras v. Wright, 263 Pa. 486; Casey v. Canning, 39 Pa. Superior Ct. 94.
The judgment of the court below is reversed and the record is remitted with directions to enter judgment on the verdict.
