9 A.2d 430 | Pa. | 1939
The trial began against three defendants: Davis, Jr., as executor of F. E. Davis, deceased; Davis, Jr., individually; *478 and the North Side Laundry Company, a corporation. The court entered a nonsuit as to Davis, individually, refused defendants' request for binding instructions, and submitted the case to the jury who found for defendants. Plaintiff moved for a new trial on the ground that the verdict was against (a) the evidence, (b) the law, and (c) the weight of the evidence; later, he filed an additional reason complaining of the instruction to the jury on the scope of the defendants' servant's authority. After hearing argument on the motion, the learned trial judge said: " . . . we have decided to grant a new trial conditionally", the condition being, so far as it need now be stated, that if plaintiff would submit to a physical examination by a physician, then named by the court, "the matter will be further considered". The doctor examined the plaintiff and wrote a letter to the judge stating the result of his examination, in consequence of which the court granted a new trial.1 The three defendants have appealed.
Referring, first, to number 127, the appeal of Davis, individually, it does not appear that plaintiff moved to take off the nonsuit, but as Davis has appealed, we assume his counsel thought the order for a new trial operated to remove the compulsory nonsuit. Even if that was intended by the order appealed from, the statute gives him no right to appeal:Dellacasse v. Floyd,
The appeal of the North Side Laundry Company is at number 125, that of the executor at number 126. The *479
evidence showed that plaintiff was injured by one, Flick, employed by the appellant Laundry Company, in their struggle for possession of plaintiff's laundry during the delivery of it in circumstances involving a dispute as to the amount collectible by Flick for the account of the Laundry Company. It was of such character as required the jury to determine whether the servant acted within or without the scope of his employment and for the purpose of performing his duty to his employer:McClung v. Dearborne,
Coming then to the grant of a new trial, the question is whether there was abuse of discretion; we have no doubt there was. Counsel for the appellee refers to three cases: Cohen v.Transit Co.,
It is unnecessary to discuss the assignment complaining of the amendment to the statement allowed during the trial; the assignment is overruled.
No. 125. Order reversed, motion for new trial reinstated, record remitted for further proceedings.
No. 126. Order reversed, record remitted for entry of judgment for Franklin E. Davis, Jr., Executor of F. E. Davis, Deceased.
No. 127. Appeal quashed.