Taylor v. Fuller , 5 Pa. Super. 193 ( 1897 )

Opinion by

Beaver, J.,

Although the amount of money involved is insignificant, there is substance in the first and second assignments of error, as presented by the appellant. There was not only an inadequate but a misleading presentation of the facts as to the two items referred to therein. Although the defendant in his examination in chief does not refer specifically either to the hog or to the repairs of the buggy, he does say, in answer to question of his counsel: Q. “Did-you include them (the oats) in that settlement? A. Yes, sir, everything was included. Q. State whether there were any dealings between you and Philip Taylor left undone in that settlement? - A. Nothing. Q. Was there anything else due between you and him, except what that settlement set forth ? A. That was all. It was put to writing and both of us signed it and he took a copy.”

In the cross-examination, in answer to the question of counsel “You got two hogs that were there of Philip’s that fall after he went away?” he said, “If I did, they were settled.” It is apparent from the entire testimony of the defendant that everything claimed by the plaintiff was in dispute and it was, therefore, error for the court to say, as complained of, “ So those two items do not seem to be in dispute, — the $13.00 for the hog and the $26.00 repairs on the buggy.” There was a substantial dispute between the plaintiff and the defendant and the defendant’s testimony in regard thereto should have been called to the attention of the jury: Goersen v. Commonwealth, 99 Pa. 388; Minick v. Gring, 1 Pa. Superior Ct. 484. These assignments of error must, therefore, be sustained.

The third and fourth assignments relate to the submission by the court to the jury of the evidence concerning the claim of Mrs. Nancy J. Taylor, the wife of the plaintiff, for services rendered the defendant during the continued absence of the plaintiff from home. The court evidently became convinced that this claim for services should not have been submitted to the jury in the present action-; and, an itemized verdict having been returned showing the amount allowed by the jury for the wages of the wife, the amount thereof was deducted by the court from the verdict before the entry of judgment. The defendant, therefore, received the practical advantage of an affirmative answer to his point, namely, “ That, under the evidence in this case, there can be no recovery for the wages of Mrs. Nancy J. Taylor for any alleged services during the absence of her husband from the fall of 1890 to the fall of 1898.” It is altogether probable that the testimony in regard to the claim of the wife for wages may have affected the minds of the jury unfavorably to the defendant, but the admission of this testimony is not complained of and, as it will doubtless be excluded in another trial, it is not necessary for us to comment upon it now. The court having deducted the amount allowed by the jury for the wages of the wife from the verdict before the entry of judgment, we regard it for practical purposes as equivalent to an affirmative answer to the defendant’s point. So far as the defendant’s rights are concerned, it made little difference whether the item were withdrawn from the consideration of the jury or deducted from their verdict after it was rendered. For this reason only these assignments are not sustained.

Being compelled to sustain the first and second assignments of error, the judgment is reversed and a new venire awarded.