MURPHY v. McGINNIS

Appeals — Order refusing new trial — Statements of court below — Requirements of fairness and justice — Inadequacies of charge to jury — Conflicting evidence.

An order granting a new trial was affirmed on appeal where the opinion of the court below stated that the trial judge had failed to charge the jury upon matters which were basic and fundamental, that his instructions did not clarify the issues, and that fairness and justice dictated that a new trial be had, and where, although plaintiff claimed that judgment should be entered in his favor because he had been entitled to binding instructions, it further appeared that issues of fact were raised due to conflicting testimony.

Argued October 2, 1941.

PER CURIAM, November 24, 1941:

This is a suit by the holder of a check against one of the indorsers. Various defenses were interposed, some of them raising questions of fact. The jury found a verdict for plaintiff. The court granted a new trial.

In the opinion of the court in banc, written by the trial judge, it is stated that he failed to charge the jury upon matters which were basic and fundamental and that he did not so instruct them as to clarify the issue and to enable them to comprehend the questions that they were to decide. He states "that fairness and justice dictate that a new trial be had." Plaintiff insists that he was entitled to binding instructions and that judgment should now be entered in his favor. In view of the statements of the trial judge above mentioned, and because issues of fact were raised due to conflicting testimony, we will not interfere with the order granting a new trial: Weinfeld v. Funk, 342 Pa. 160, 20 A.2d 206.

Order affirmed.