30 A.2d 534 | Pa. Super. Ct. | 1942
Argued October 7, 1942. Trespass for personal injuries. Before BROWN, J.
Verdict for plaintiff in sum of $800 against both defendants. New trial granted as to both defendants. Plaintiff and defendant, trust company, each appealed. Plaintiff brought this action in trespass on September 19, 1940, to recover damages for personal injuries sustained by him on August 21, 1940, when he stepped into a hole in the curb of the sidewalk as he was alighting from his automobile near the intersection of Croskey and Arch Streets in the City of Philadelphia. The defendants are the Fidelity-Philadelphia Trust Company, owner of the abutting property, and Edward Jones, a lessee. On October 7, 1940, judgment was entered against Jones for want of an appearance. On October 21, 1940, the trust company filed an affidavit of *491 defense wherein it alleged that the property was in the sole and exclusive possession of Jones by virtue of a lease dated March 2, 1936. The case was tried on February 6, 1941, and the jury, which tried the issue of liability between plaintiff and the trust company, found in plaintiff's favor, and returned a verdict against both defendants in the sum of $800. The assessment of damages was the only matter submitted to the jury as to Jones. See Act of May 22, 1722, 1 Sm. L. 131, § 27, 12 Pa.C.S.A. § 687. The trust company filed a motion for judgment n.o.v., and lessee filed a motion for new trial. The trust company's motion was dismissed, and a new trial was granted as to both defendants. An appeal was taken by the trust company (No. 124, October Term, 1942), and by the plaintiff (No. 125, October Term, 1942). We shall dispose of both appeals in one opinion.
The trust company's first and second assignments of error in appeal No. 124 relate to the refusal of its point for binding instructions and the dismissal of its motion for judgment n.o.v. Its remaining assignment of error and plaintiff's assignments of error in appeal No. 125 relate to the granting of a new trial as to both defendants.
The real question before us is whether the court below abused its discretion in granting a new trial as to both defendants. SeeMurphy v. McGinnis,
The court below was of the opinion that "justice demanded a retrial of the case." It has been held that trial courts have inherent discretionary power to grant new trials, subject to review only where there is "clear error of law or palpable abuse of discretion." Kline et al. v. Moyer et al.,
The order will be affirmed.
Judgment was entered against Jones, the lessee, for want of an appearance under the Act of June 13, 1836, P.L. 568, § 34, 12 Pa.C.S.A. § 733. A copy of the statement of claim was never served upon him. Rule 69 (1) of the Court of Common Pleas of Philadelphia County requires that: "A copy of each paper filed in any action or proceeding including praecipes to place the case on the trial list, shall be served by the party filing it upon all other parties to the litigation or their attorneys of record, within forty-eight hours after filing." A rule upon plaintiff to show cause why the judgment entered should not be opened and the defendant Jones let into a defense is pending in the court below, and failure to serve copy of statement as required by Rule 69 (1) is a proper matter for consideration by that court. Jones apparently appeared at the trial of the case as a witness subpoenaed by plaintiff.
There is uncontradicted testimony that at the time of the accident another tenant occupied a portion of the building owned by the trust company and also occupied by Jones. It is the rule that if the owner is out of possession by reason of a lease of the entire property and during such tenancy the sidewalk falls into disrepair the tenant and not the owner is liable for injuries to a stranger using the sidewalk. Bruder v. Philadelphiaet al.,
It would be difficult to define the phrase "abuse of discretion," as each case must be determined with reference to its own particular facts. See Adelman v. John McShain, Inc.,
Under the circumstances presented by this record, we are of the opinion that the court below did not exceed the bounds of reason in granting a new trial as to all the parties. The interests of right and justice would seem to require that the case be retried. When it is retried the situation may permit the presentation to the jury of the liability of the respective defendants according to the applicable legal principles.
A court has the right to order a new trial of its own motion, and its action in so doing will not be reversed *495
in the absence of a clear abuse of discretion. Brown et vir v.George et al.,
In no respect do we find an abuse of discretion by the court below, and consequently we will not interfere with the new trial order. Kerr et ux. v. Hofer et al.,
The assignments of error in the respective appeals are overruled.
The order granting new trial and the order refusing judgment n.o.v. are affirmed.