196 Pa. Super. 256 | Pa. Super. Ct. | 1961
Opinion by
On July 9, 1959, Norman E. Conard instituted an action in assumpsit against Thomas J. Duffy and Eleanor H. Duffy, his wife, upon a written instrument executed by the defendants as follows: “Jan. 23rd 1958 —I O U Norman E. Conard, Four Thousand Dollars ($4000.00). This is to be repaid at $100.00 per month”. The defense was failure of consideration. The trial resulted in a verdict for the plaintiff in the face amount of the instrument. The court en banc thereafter granted defendants’ motion for a new trial on the ground that the verdict was against the weight of the evidence. The plaintiff has appealed.
The record discloses that Thomas J. Duffy operated a business at 825 Garrett Eoad, Upper Darby, Pennsylvania, trading under the fictitious name of Edward A. Duffy and Son. The nature of the business was the sale and installation of window shades, Venetian blinds, and floor coverings. For some twelve years prior to January 23, 1958, Conard was employed in the business at a weekly salary, first of $40.00 and later $50.00. Conard testified that he was in fact a salesman and was to receive, in addition to his salary, a commission of ten percent on all Venetian blind orders and five percent on all linoleum orders. The theory of the defendants was that Conard was not employed as a salesman, that his compensation was limited to his weekly salary, and that there were to be no commissions. The business eventually became financially involved. Sometime in the year 1957, when internal revenue agents were preparing to make a levy for nonpayment of federal taxes, Conard loaned Duffy $900.00. This indebtedness was evidenced by a judgment note, the final payment on which was made November 22, 1957. With regard to the I.O.U., the subject matter of the instant action, Conard testified that it was a compromise in settlement of commissions due. Duffy
In his opinion for the court en banc the trial judge states that “he and the other members of the court en banc concluded that the verdict was against the weight of the evidence, was shocking to the judicial conscience, and must have been capricious”. Then follows a painstaking outline of the reasons for such a conclusion, which we will briefly summarize. (1) It is highly improbable that Conard was to receive commissions in view of his admission that he did not request payment thereof for a period of ten years, that he kept no account, and was not certain of the amount. (2) While Duffy was engaged with the sheriff’s deputies, Conard handed Mm a card on which he had written “up to $4000”. In the words of Judge Piekabski, “Were it for any agreed compromise, the words ‘up to’ would have been omitted. Indeed, the card itself would have been completely meaningless had there been the alleged, compromise”. (3) The variance between Conard’s testimony and his complaint. For example, his testimony differed from his complaint on the percentage of commissions. Again, Conard alleged in his complaint that a consideration for the I.O.U. was “that he would not voluntarily leave his employment with defendant”,
One of the least assailable grounds for the exercise of the power to grant a new trial is the trial court’s conclusion that the verdict is against the weight of the evidence: Hartigan v. Clarke, 389 Pa. 283, 133 A. 2d 181. A grave responsibility rests upon the trial judge to see to it that no verdict contrary to the weight of the evidence or shocking to judicial conscience is allowed to stand: Maloy v. Rosenbaum Co., 260 Pa. 466, 103 A. 882. It is the duty of the trial judge to grant a new trial when he is convinced that the judicial process has resulted in the working of an injustice: Kiser v. Schlosser, 389 Pa. 131, 132 A. 2d 344. The grant of a new trial is an inherent power and immemorial right of the trial court, and an appellate court will not find fault with the exercise of such authority in the absence of a clear abuse of discretion: Frank v. Losier & Co., 361 Pa. 272, 64 A. 2d 829. As stated by Mr. Justice Bok in Hancock v. Moore, 404 Pa. 47, 171 A. 2d 182, “We do not disturb the discretionary grant of a new trial lightly or unless it has been done capriciously or with palpable abuse of discretion”. See also Lupi v. Keenan, 386 Pa. 6, 151 A. 2d 447; Seidel v. Borough of Yeadon, 191 Pa. Superior Ct. 45, 155 A. 2d 370; Olynik v. Luce, 192 Pa. Superior Ct. 312, 162 A. 2d 259.
“One who appeals from the grant of a new trial assumes a very heavy burden indeed”: Mozino v. Canuso, 384 Pa. 220, 120 A. 2d 300. We are all of the opinion that appellant has failed to sustain that burden. Our review of this record does not reveal any abuse of discretion in the grant of a new trial.
Order affirmed.