Mozino v. Canuso

• Court: Pennsylvania Supreme Court
• Writing for the Court: MR. JUSTICE JONES
• Citation: Mozino v. Canuso, 120 A.2d 300, 384 Pa. 220 (Pa. 1956)
• Decision Date: 06 February 1956
• Docket Number: 4474
• Parties: Peter S. MOZINO, Appellant, v. Francis A. CANUSO, Jr., Only Surviving Patner of Francis A. Canuso and Francis A. Canuso, Jr., Late Trading as Francis A. Canuso and Son, Francis A. Canuso Having Died.

Page 300

120 A.2d 300

384 Pa. 220

Peter S. MOZINO, Appellant, v. Francis A. CANUSO, Jr., Only Surviving Patner of Francis A Canuso and Francis A. Canuso, Jr., Late Trading as Francis A. Canuso and Son, Francis A Canuso Having Died.

Supreme Court of Pennsylvania.

Feb. 6, 1956.

Edmund B. Spaeth, Jr., MacCoy, Evans & Lewis, philadelphia, for appellant.

W. Bradley Ward, Lemuel B. Schofield, Philadelphia, for appellee.

Before STERN, C. J., and STEARNE, JONES, MUSMANNO and ARNOLD, JJ.

JONES, Justice.

The plaintiff sued in assumpsit to recover damages for the defendant partnership's alleged breach of an oral contract whereby the partnership was permitted to dig and remove fill from land of the plaintiff at so much per cubic yard with the further understanding and agreement that any rock encountered in the operation would be removed by the defendants and that the digging would be done in such a manner that, when completed, the surface of the ground would be left in a smooth and even grade. The partnership consisted of Francis A. Canuso and Francis A. Canuso, Jr., trading and doing business as Francis A. Canuso and Son. The defendants paid the plaintiff at the contract price per yard for the earth actually removed. The plaintiff instituted the present action to recover damages due to the defendants' failure, after the removal of the fill, to restore the property to the condition required by the parties' agreement. The defendants answered, denying the property damage claimed by the plaintiff, and set up a counterclaim for materials which the firm had sold the plaintiff.

After issue had been joined, Francis A. Canuso, Sr., died. The plaintiff, with leave of court, subsequently amended his complaint so as to show the action as being against 'Francis A. Canuso, Jr., Only Surviving Partner of Francis A. Canuso and Francis A. Canuso, Jr., Late Trading as Francis A. Canuso and Son, Francis A. Canuso having died' and to include an averment that '* * * this action is brought against Francis A. Canuso, Jr., only, surviving partner of Francis A. Canuso and Son, and [that] plaintiff disclaims any claim against Francis A. Canuso or his estate.'

At trial, the plaintiff offered himself as a witness. The defendant objected to his testifying on the ground that he was an incompetent witness under Section 5(e) of the Act of May 23, 1887, P.L. 158, 28 P.S. § 322, Francis A. Canuso having died. The objection was overruled and the plaintiff was permitted to testify generally with respect to the alleged oral contract, the defendant's breach of it and the damages flowing therefrom. The learned trial judge was then of the opinion that, by virtue of the plaintiff's amendment, '* * * the partnership is clearly out, so far as liability goes here and the remaining defendant is the only one who is in under that caption.' The jury returned a verdict for the plaintiff of '$7,500, less the [defendant's] bill of $713.52, making $6,786.48 net' for which latter amount a verdict for the plaintiff was entered of record. The defendant filed motions for judgment n. o. v. and for a new trial. The court en banc denied the motion for judgment n. o. v. but awarded the defendant a new trial. Only the plaintiff has appealed.

One who appeals from the grant of a new trial assumes a very heavy burden indeed. Before we will reverse, the appellant must be able to show that the trial court was guilty of a palpable abuse of discretion or acted on an erroneous rule of law which, in the circumstances, conrtrolled the outcome of the case and is certified by the trial court as the sole reason for the granting of a new trial. The statement of the rule most frequently cited appears in Marko v. Mendelowski, 313 Pa. 46, 47, 169 A. 99, which has been quoted many times down to the present. See, e. g., Pendleton v. Philadelphia Transportation Company, 376 Pa. 598, 600, 103 A.2d 724; Beal v. Reading Company, 370 Pa. 45, 47-48, 87 A.2d 214; Foster v. Waybright, 367 Pa. 615, 618, 80 A.2d 801; and Tupponce v. Pennsylvania Railroad Company, 358 Pa. 589, 590, 57 A.2d 898.

The opinion for the court en banc in the instant case bases its grant of a new trial on the ground that, one of the parties of the defendant firm having died, the plaintiff was an incompetent witness under the Act of 1887 and should not, therefore, have been permitted to testify. As the evidence adduced in the plaintiff's case was in large measure his own testimony, the court felt that a new trial was necessarily indicated. The court below has not, however, certified that the supposed erroneous ruling at trial on the evidence question was the sole reason for the granting of a new trial. In fact, we were informed by counsel for the appellee at bar, and it was not controverted, that a certificate that the evidence question under the Act of 1887 was the sole ground for the court's action in ordering a new trial was sought but that the trial judge refused to so certify.

Nor can we say from a reading of the lower court's opinion that one or more of the other reasons assigned by the defendant would not have justified a new trial had the competency question under the Act of 1887 been decided otherwise. As was said in Class & Nachod brewing Co. v. Giacobell, 277 Pa. 530, 537, 121 A. 333, 336--'* * * because the opinion of the trial court refers to only one question, or a single point in the case, this fact will not be treated by us as conclusive proof that the point or question thus accentuated controlled the entry of the order appealed from * * *.' Here, there were other grounds assigned as reasons for a new trial, viz., alleged error in the measure of damages, incompetency of witnesses for the plaintiff to give opinion evidence and excessiveness of the verdict. None of these reasons was touched upon in the court's disposition of the defendant's motion.

In no event was the court below guilty of a palpable abuse of discretion; nor do we understand the appellant to so charge....