Frank v. Bayuk
| Decision Date | 26 June 1936 |
| Docket Number | 232 |
| Parties | Frank, Admr., v. Bayuk, Appellant |
| Court | Pennsylvania Supreme Court |
Argued April 28, 1936
Appeal, No. 232, Jan. T., 1936, by defendant, from order of C.P. No. 5, Phila. Co., March T., 1934, No. 241, in case of Elias Frank, administrator of Estate of David B. Frank deceased, v. Abraham Edward Bayuk. Appeal dismissed with procedendo.
Trespass for wrongful death. Before BARNETT, P.J., specially presiding.
The opinion of the Supreme Court states the facts.
Verdict for defendant. Motion by plaintiff for new trial granted. Defendant appealed.
Error assigned, among others, was action of lower court in granting plaintiff's motion for new trial.
Appeal dismissed with a procedendo.
S. S Herman, of Herman & Harris, for appellant.
Robert M. Bernstein, with him Albert J. Bader, for appellee.
Before KEPHART, C.J., SCHAFFER, MAXEY, DREW, LINN and BARNES, JJ.
This is an appeal from an order granting a new trial. An award of a retrial is an inherent power of the court of common pleas and entirely discretionary: Graham v. Graham, 1 S. & R. 330. Such order will not be reversed unless there is clear error of law or palpable abuse of discretion: Duaine v. Gulf Refining Co., 285 Pa. 81; Alianell v. Schreiner, 274 Pa. 152; Hess v. Gusdorff, 274 Pa. 123; Class & Nachod Brewing Co. v. Giacobello, 277 Pa. 530.
The court below assigned several reasons for allowing appellee's motion. The principal one was improper admission of opinion testimony by a witness not qualified as an expert upon a matter which the jury was competent to determine. Another incidental ground was the introduction by the insurance carrier, which had assumed the defense, of a charge of collusion between appellant and appellee which tended to obscure the real issue and prejudice appellee's position. The court believed justice necessitated another trial. The reasons assigned were not erroneous as a matter of law, and involved a proper exercise of discretion. Even if the verdict should appear correct to us, we will not reverse unless the court below commits manifest error in awarding a new trial. There are many incidents of a trial, including the manner of its conduct, which a judge may feel are productive of prejudice.
Appellant cites Walters v. Federal Life Ins. Co., 320 Pa. 588; Petkov v. Metropolitan Life Ins. Co., 321 Pa. 14; Fornelli v. P.R.R. Co., 309 Pa. 365. The scope of our review is no greater by reason of these decisions. The cases referred to hold that where binding instructions should have been given as a matter of law for the party in whose favor the verdict is rendered, it is error to award a new trial. Here the question of negligence and contributory negligence was for the jury; a directed verdict could not be had.
Without prolonged discussion we dismiss appellant's contention that the court below was not a...
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...See also the opinion of Mr. Chief Justice Marshall in Pollard v. Dwight, 4 Cranch 421, 8 U.S. 421, 2 L. Ed. 666; Frank v. Bayuk, 322 Pa. 282, 284, 185 A. 705, 706; Zimmerman v. Pennsylvania R. Co., 293 Pa. 264, 266, 142 A. 220; In re McCormick's Contested Election, 281 Pa. 281, 285, 126 A. ......
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...Streilein v. Vogel, 363 Pa. 379, 69 A.2d 97 (1949); Frank v. W.S. Loiser & Co., Inc., 361 Pa. 272, 64 A.2d 829 (1949); Frank v. Bayuk, 322 Pa. 282, 185 A. 705 (1936). Indeed, as occurred in the instant matter, this Court has expressly approved of a trial court's granting a new trial, sua sp......
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Bellettiere v. City of Philadelphia
... ... Feldman, Philadelphia, for ... appellants in Nos. 99, 100, 101 ... James ... Francis Ryan, Harry Lapensohn, Assts. City Sols., Frank F ... Truscott, City Sol., Philadelphia, for City of Philadelphia ... Before ... STERN, STEARNE, JONES, BELL, LADNER and CHIDSEY, JJ ... the court of common pleas and entirely discretionary.’ ... [367 Pa. 643] Frank v. Bayuk, 322 Pa. 282, 283, 185 ... A. 705; Frank v. W. S. Losier & Co., 361 Pa. 272, ... 276, 64 A.2d 829, 831; Streilein v. Vogel, 363 Pa ... 379, 385, ... ...
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Bellettiere v. City of Philadelphia
...that 'An award of a retrial is an inherent power of the court of common pleas and entirely discretionary.' [367 Pa. 643] Frank v. Bayuk, 322 Pa. 282, 283, 185 A. 705; Frank v. W. S. Losier & Co., 361 Pa. 272, 276, 64 A.2d 829, 831; Streilein v. Vogel, 363 Pa. 379, 385, 69 A.2d 97, 101. Also......