March v. Philadelphia & West Chester Traction Co.
| Decision Date | 01 February 1926 |
| Docket Number | 92 |
| Citation | 285 Pa. 413,132 A. 355 |
| Parties | March v. Philadelphia & West Chester Traction Co., Appellant |
| Court | Pennsylvania Supreme Court |
Argued January 12, 1926
Appeal, No. 92, Jan. T., 1926, by defendant, from order of C.P. Chester Co., Jan. T., 1925, No. 21, refusing motion of defendant for judgment n.o.v., in case of Lafayette March v Philadelphia & West Chester Traction Co. Affirmed.
Trespass for negligence.
Motion for judgment for defendant n.o.v., and for new trial. Before HAUSE, J.
The opinion of the Supreme Court states the facts.
Motion for judgment dismissed; new trial granted. Defendant appealed.
Error assigned was, inter alia, order dismissing motion for judgment n.o.v., quoting record.
The order of the court below is affirmed.
A. M. Holding, of Holding & Harvey, for appellant.
Truman D. Wade, for appellee.
Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART and SADLER, JJ.
In an action of trespass for negligence, plaintiff recovered a verdict, defendant moved for judgment non obstante veredicto, the court below dismissed the motion and granted a new trial, whereupon defendant took this appeal, assigning the discharge of its motion as error. Its right to appeal admittedly depends on the Act of April 9, 1925, P.L. 221, and our preliminary questions are, therefore: What is the meaning of the statute, and what rules should be applied in deciding appeals under it? We have repeatedly said, and it is especially applicable in the instant case, that "a statute should be so interpreted that it will accord, as nearly as may be, with the theretofore existing course of the common law": Merrick v. DuPont, 285 Pa. 368; Kates's Est., 282 Pa. 417; Jessup & Moore Paper Co. v. Bryant Paper Co., 283 Pa. 434.
Before any of the non obstante veredicto acts were passed, a trial judge could reserve any controlling question of law, and later enter an appropriate judgment on it. This practice was not a favorite of the common law, however, and attempts to exercise it, frequently, if not generally, resulted in the setting aside of the reservation and all proceedings under it, often for some unimportant technical reason. If a judgment was entered, it was final, and the losing party had a right to appeal from it; but the trial judge was not required to reserve a point, nor, if he did, to enter judgment on it; and no appeal would lie from the action or nonaction of the court unless a final judgment was entered.
By the Act of April 22, 1905, P.L. 286, a long step forward was taken. Under it, if the court reserved or declined a point for binding instructions, and the verdict was against the party presenting it, he might move for judgment non obstante veredicto on the whole record, and the court was bound to enter or refuse to enter the judgment sought, or to grant a new trial. If judgment was refused and a new trial granted, the party who had obtained the verdict still had his common law right of appeal, and would succeed if he could show a clear abuse of discretion; but the act only requires the court to certify the record, to enter judgment on the motion and to allow an exception to its ruling, in case "it does not grant a new trial."
By the Act of April 20, 1911, P.L. 70, the party presenting such a point, which was reserved or declined, could move for judgment on the whole record, even though the jury had disagreed. Here, also, the certification of the record, the entry of judgment and the granting of an exception, are not required where the court "shall be of opinion that the case should be retried."
This was the situation when the Act of 1925 was passed. It reenacted the Act of 1905, and stated "that it shall be the duty of the court having directed such new trial, to so certify the evidence, and to grant an exception to the party whose motion for judgment non obstante veredicto has been declined," and, after giving the right of appeal to such party, directed that "The Supreme or Superior Court shall review the action of the court below, and shall enter such judgment for either party as shall be warranted by the evidence taken in that court, or shall affirm the action of that court in granting a new trial." It will be observed that the statute does not attempt to deprive the court below of its immemorial right to grant a new trial, whenever, in its opinion, the justice of the particular case so requires. It is more than doubtful whether the legislature could impair or destroy that wise provision; it has not tried to do so, however, but only requires the record to be put in shape for review, if a new trial is granted. If it is granted, the pending motion for judgment non obstante veredicto necessarily falls, for a new trial and a judgment cannot be in effect at the same time in the same case. It follows that if the court below did not abuse its discretion in granting a new trial, it could not have erred in making the necessarily resultant order refusing judgment non obstante veredicto; and, hence, in that event, we cannot reverse because it did so order.
Nor does the act attempt to change our established practice where an appeal is taken in such cases. Our right to...
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