Opinion
April 23, 1941.
June 30, 1941.
Practice — Trial — Charge to jury — Presentation of issues — Inadequacy — New trial.
In an action of assumpsit, in which it appeared that the charge of the trial judge was so inadequate and so utterly lacking in its presentation of the issues of fact to be determined by the jury that it gave the latter no help whatever in arriving at their verdict upon the conflicting evidence, it was held on appeal that a new trial was required.
Appeal, No. 199, April T., 1941, from judgment of C.P. Warren Co., Sept. T., 1939, No. 41, in case of Commonwealth, for use of Frank W. Schmiedel, v. United States Fidelity and Guaranty Company.
Before KELLER, P.J., CUNNINGHAM, BALDRIGE, STADTFELD, RHODES, HIRT and KENWORTHEY, JJ. Judgment reversed.
Assumpsit. Before ARIRD, P.J.
The facts are stated in the opinion of the Superior Court.
Verdict for plaintiff. Motions for new trial and judgment n.o.v. refused and judgment entered on verdict. Defendant appealed.
Error assigned, among others, was refusal of new trial.
E.H. Beshlin, for appellant.
William Glassman, of Jamieson Glassman, with him Walter Peake, for appellee.
Argued April 23, 1941.
This was an action in assumpsit against the surety on a contractor's bond given in connection with the improvement of a state highway, conditioned for the prompt payment by the contractor of "all sums of money which may be due any person . . . . . . for all material furnished and labor supplied or performed . . . . . . in connection with the prosecution of the work, whether or not the said material or labor enter into and become component parts of the work or improvement contemplated", in conformity with the provisions of the Act of July 12, 1935, P.L. 705, amending section 13 of the Act of May 31, 1911, P.L. 468. See also Act of June 22, 1931, P.L. 881.
The real point at issue on the trial was whether the contract between the use plaintiff and the highway contractor — which was entirely oral — was for the hiring together by the latter from the former of two trucks and drivers at $1.90 per hour for each truck and driver, (See Phila. to use v. Stange, 306 Pa. 178, 159 A. 7; Com. to use v. National Surety Co., 253 Pa. 5, 97 A. 1034); or was for the hiring of two trucks from the use plaintiff at $1.40 each per hour — which had not been paid — and the separate employment of a driver for each truck at fifty cents per hour — which had been fully paid. (See Com. to use v. Stryker, Inc., 109 Pa. Super. 137, 167 A. 459; Com. to use v. Stryker, Inc., 112 Pa. Super. 449, 171 A. 298; Phila. School Dist. v. Shrages Co. Inc., 134 Pa. Super. 533, 4 A.2d 558, affirmed 336 Pa. 433, 9 A.2d 900; Lancaster to use v. George, 315 Pa. 232, 172 A. 686).
The testimony was rather vague and in some respects contradictory, but it would have supported a finding either way if the jury had arrived at their verdict after a charge adequately defining the issues involved. But the charge of the court was so inadequate and so utterly lacking in its presentation of the issue or issues of fact to be determined by the jury, that it gave the latter no help whatever in arriving at their verdict and left the jury without compass or direction to guide them. A new trial will have to be had in consequence.
Judgment reversed, and a new trial awarded.