Opinion
April 24, 1934.
May 21, 1934
Appeals — Review — Order granting new trial — Verdict resting on testimony of single witness — False testimony.
Where a verdict rests entirely on plaintiff's own testimony, which the trial judge is convinced is false, an order granting a new trial cannot be regarded by the appellate court as an abuse of discretion.
Before FRAZER, C. J., SIMPSON, SCHAFFER, MAXEY, DREW and LINN, JJ.
Appeal, No. 224, Jan. T., 1934, by plaintiff, from decree of C. P. No. 5, Phila. Co., Sept. T., 1932, No. 1406, in case of Robert Pearson v. A. W. Funk Company, Inc. Appeal dismissed.
Assumpsit on oral contract. Before LAMBERTON, J.
The opinion of the Supreme Court states the facts.
Verdict for plaintiff. Motion for new trial granted. Plaintiff appealed.
Error assigned was order granting new trial, quoting record.
Richard K. Stevens, of Stradley, Ronon, Stevens Denby, for appellant.
Henry A. Frye and George A. Purring, for appellee, were not heard.
Argued April 24, 1934.
Defendant entered into a contract with the Pottstown Borough School District for erection of a junior high school building for the sum of $268,714. Plaintiff claimed he was employed by defendant as consulting engineer on the building at a compensation of 2% of the contract price. Defendant denied the employment. A verdict was rendered for plaintiff. Subsequently the lower court refused a motion for judgment for defendant n. o. v., but granted a new trial, stating in its opinion: "Plaintiff's right to recovery rests entirely on his own testimony. The trial judge was convinced that this testimony was false. A reading of the record confirms this opinion formed at the time of the trial. For this reason, we believe that in the interest of justice a new trial should be granted. This is the only reason for our so doing."
The trial judge having seen the witnesses and heard them testify, and being of opinion the ends of justice would be served by granting a new trial, we cannot say the order was an abuse of discretion: Lebo v. Reading Transit Co., 264 Pa. 270. "Where a verdict rests largely upon a single witness whose testimony is strongly contradicted by that of other witnesses, and discredited by his own prior inconsistent statements, the proper remedy is a new trial": Thomas v. P. R. R. Co., 275 Pa. 579, 583-4.
Appeal dismissed at cost of appellant.