Wolf v. Philadelphia Traction Co.

Opinion by Mr. Justice Pell, Unexplained, the facts stated in the affidavit on which the rule to show cause was granted would warrant an award of damages as provided by the act of May 25, 1874. As explained by the counter affidavit and the statement of counsel made at the argument of the rule, the facts furnish no ground for the conclusion that the appeal was taken merely for delay. At the trial the defendant’s liability was not denied, and the defense was confined to the question of the amount of damages sustained. The verdict was unusually large, and on the plaintiff’s own showing it might well be considered excessive. The real party in interest in defending the action was the Guarantor’s Company. The attorney who represented the company at the trial advised an appeal on account of the excessive verdict, and his judgment was approved by the company’s principal attorney after a careful examination of all the testimony. When however the latter came to prepare the case for argument on the appeal he considered the fact that assignments of error based on the action of the court of common pleas in sustaining an excessive verdict had never been acted upon by this court. Such assignments had been presented in numerous cases and passed without comment. The power conferred by the act of May 20, 1891, was first exercised in Smith v. Times Publishing Co., 178 Pa. 481, in which case the decision was rendered after the abandonment of this appeal. In the opinion filed January 4,1897 it was said by our Brother Mitchell : “ It is a new power, a wide departure from the policy of centuries in regard to appellate courts, and so clearly exceptional in its character that no case has been presented until now in which we have felt called upon to exercise it.” We are entirely convinced by the statements [401] of the highly reputable counsel who represented the appellant that the appeal was taken in good faith and not merely for delay. The offer of compromise afterward made and the abandonment of the appeal do not under the circumstances in the least weaken or qualify their statements. The appeal was not taken, as in Pennypacker v. Dear, 166 Pa. 284, in pursuance of a menace previously made, and counsel were justified in assuming that it would be useless to press the assignment. The rule is discharged.