Rosenagle v. Handley , 151 Pa. 107 ( 1892 )

Opinion by

Mb. Justice Sterbett,

While the rulings and instructions of the learned judge were, in the main, correct, or at least free from manifest error, some of them were calculated to mislead the jury and divert their minds from a proper consideration of the real question before them, and thus to prejudice the plaintiff’s case. The 1st, 2d, 3d, 5th, 6th and 7th points for charge, submitted by her counsel, contain clear and admittedly fair statements of questions raised by the evidence and proper for the determination of the jury. For example, in the first three of these points the court was requested to charge :

“ 1. If the jury believe that the defendant represented to plaintiff, on December 18, 1883, that the Wyoming Manufacturing Co. was in a solvent condition, was paying six per cent dividends on stock, that the stock was worth §100 per share at that time, and that defendant had §50,000 invested in the stock of said company, and that such representations were false, and that plaintiff relied upon such representations, and would not haye taken 'stock in said company had it not been for such misrepresentations, then the plaintiff is entitled to recover.”

“ 2. If the jury believe defendant represented to plaintiff, on December 18, 1883, that the Wyoming Manufacturing Co. was located in the Wyoming Valley of Pennsylvania, and the plaintiff relied upon such representations and was induced thereby to take stock in said company, which she otherwise would not have done, then plaintiff is entitled to recover.”

“ 8. If the jury believp defendant was, on the 18th of December, 1888, president and stockholder of the Wyoming Manufacturing Co., he was bound to know the financial condition and all about said company, and having undertaken to inform the plaintiff concerning said company he was in duty bound to tell the plaintiff the whole truth concerning said company.”

These, and the other three equally clear and pertinent points, were all affirmed without qualification, and of course they are not assigned for error. If all the instructions were as clear and pertinent to the case presented by the evidence as these are, the plaintiff would have no just reason to complain of the court-; but they are not.

While the statement—personal to the defendant—recited in the first specification of error may be historically correct, it was at least wholly irrelevant. Standing alone, it might be regarded as innocuous, but it opened the way for other irrelevant personal statements that were not so harmless, notably that recited in the 8d specification of error, viz.:

“ Here is a man, the defendant in this case, who has held a high and honorable position in this community. He is charged with being the perpetrator of a fraud. He comes into this court, and upon his solemn oath declares the facts are not as stated by the plaintiff. In his statements and in his denials he is highly corroborated.”

To an attentive reader of the testimony returned with the record, it may perhaps appear to be putting it a little too strongly to say, that “ in his statements and in his denials he (defendant) is highly corroborated.” Many of the facts and circumstances of the case are not only in harmony with a con trary view, but also corroborative of the facts of which plaintiff’s points are predicated ; but all these were for the calm and dispassionate consideration of the jury. With the exception of the degree of corroboration, and for the purposes of this case, the correctness of the statement above quoted may be conceded; but what had it to do, legitimately, with any question upon which the jury had to pass? We are unable to see that it had anything. It could serve no other purpose than to mislead the jury and divert their minds from the real questions in the case. That was undoubtedly its tendency, and to what extent it may have operated in that direction, if at all, it is impossible for us to know.

In Catasauqua Manufacturing Co. v. Hopkins et al., 141 Pa. 80, a question similar in principle at least arose. That was an action for conspiracy to defraud. The court called attention of the jury to the fact that if there should be a verdict and judgment for plaintiff, defendants would not be entitled to the benefit of the exemption laws, and would be liable to arrest and imprisonment. We held that it was error to do so. Referring to the assignment relating to that part of the charge wherein the jury was instructed as to the consequences of a finding against the defendant, our Brother Williams said: “ This was a mistake. The jury should determine the questions submitted to them, upon, the evidence, and not upon the possible consequences of a given verdict to either party: Com’th v. Switzer, 134 Pa. 383. Whether the defendant is able to pay a judgment if one is entered against him, whether he will be entitled to the benefit of the exemption laws, or liable to arrest on a capias ad satisfaciendum are questions with which the jury have nothing to do. They can serve no other purpose than that of enlisting the sympathies of jurors in behalf of defendants, and so obscuring the real questions to be decided.”

•Again, that portion of the charge recited in the 7th specification is in the same line. The learned judge there said:

“ There is a principle underlying this case, gentlemen of the jury, which perhaps is more precious to a man than bonds and gold; it is a man’s reputation. In this case the reputation of the defendant is at stake.”

This is, if possible, more objectionable than the other, and is clearly within the same condemnation.

We find nothing in the evidence that warrants that part of the charge recited in the second specification.

In view of the undisputed facts of the case, we think the plaintiff was entitled to an unqualified affirmance of her fourth point for charge, recited in the 9th specification of error.

Judgment reversed and a venire facias de novó awarded.