HITCHAY v. PHILLIPS, 316 Pa. 290 (1934)

175 A. 389

Hitchay v. Phillips, Appellant.

Supreme Court of Pennsylvania.October 8, 1934.
November 26, 1934.

Appeals — Review — Order granting new trial — Discretion of court below — Abuse.

On an appeal from the award of a new trial, the appellate court will not reverse unless a clear abuse of judicial discretion appears. [292]

Argued October 8, 1934.

Before FRAZER, C. J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.

Appeal, No. 238, March T., 1934, by defendant, from order of C. P. Allegheny Co., Oct. T., 1931, No. 1438, in case of John Hitchay v. Rosetta E. Phillips. Order affirmed.

Page 291

Trespass for personal injuries. Before E. W. MARSHALL, J.

The opinion of the Supreme Court states the facts.

Verdict and judgment for defendant. New trial granted and order made vacating original judgment. Defendant appealed.

Error assigned, inter alia, was grant of new trial, quoting record.

Samuel W. Pringle, of Dalzell, Dalzell, McFall Pringle, for appellant.

Thomas F. Garrahan and H. W. McIntosh, for appellee, were not heard.

PER CURIAM, November 26, 1934:

While walking alongside of a public road, plaintiff was struck by an automobile driven by defendant, and sued to recover for injuries received in the accident. At the trial, defendant offered in evidence a release discharging him from all liability and acknowledging receipt of $250 in payment of injuries sustained; the release was received over objections. Plaintiff claimed misstatements and misrepresentations by defendant’s representative had induced him to sign the paper. A verdict was directed for defendant.

Subsequently a motion for new trial was denied by a majority of the court in banc because they did not believe “any injustice was done plaintiff in view of the fact that the injuries were not serious.” The trial judge, however, took the view that it was error to give binding instructions since the validity of the release had been questioned. A reargument of the motion for new trial was had, at which time counsel for plaintiff contended he had not been permitted to offer all of his evidence as to the extent of plaintiff’s injuries. A new trial was awarded for that reason. Defendant appeals.

Page 292

Upon the state of the record before us we cannot say that it was an abuse of discretion for the court below to grant a new trial, and our rule is well settled that on an appeal from the award of a new trial we will not reverse unless a clear abuse of judicial discretion appears: Class Nachod Brewing Co. v. Giacobello, 277 Pa. 530; Marko v. Mendelowski, 313 Pa. 46.

The order of the court below is affirmed.