Fullam v. Rose , 181 Pa. 138 ( 1897 )

Opinion by

Mr. Cheep Justice Stebbett,

This case was here three years ago on defendant’s appeal from the former judgment, and is reported in 160 Pa. 47. Its salient features, — especially as to questions of fact presented by the testimony in the court below, — are substantially the same now as they were then, and hence special reference thereto, in this connection, is unnecessary. On the last as on the former trial, the right of the plaintiff to recover depended on questions of fact which it was the exclusive province of the jury to determine from the somewhat conflicting testimony before them. It was therefore the duty of the learned trial judge to fairly and impartially submit the case on all the evidence with such instructions as were calculated to guard the respective rights of both parties without unduly prejudicing the claims of either. The burden of defendant’s complaint is that this was not done. Our consideration of the ruling cómplained of in the first specification, and of the entire charge, including the excerpts therefrom recited in the second to the sixth specifications, inclusive, has satisfied us that this complaint is not entirely unfounded.

The check referred to in the first specification was erroneously admitted in evidence without proper proof of the signature of Luke Otis, deceased, the alleged drawer thereof; and was afterwards improperly used to the prejudice of the defendant. The check in question having been shown to Michael Rose, one of the defendant’s witnesses, on his cross-examination, he was asked: “ Is that Luke Otis’ signature ? ” His answer was: “It looks like it.” Without asking him whether he believed the signature to be genuine or not, or offering any proof whatever as to its genuineness, the check was offered in evidence and admitted under exception. Subsequently it was used as a test paper for the purpose of contradicting and discrediting defendant’s witness. In that part of the charge recited in the second specification, the court, in submitting the check to the jury, said, among other things, “ the plaintiff puts in this check of Mr. Otis, and it is for you to make a comparison of those signatures.” It is scarcely necessary to say that this was clearly erroneous and. manifestly prejudicial to the defendant. The answer of the witness that the signature shown him “ looks like ” the signature of Luke Otis, without more, was wholly insufficient to justify the admission of the check in evidence for any purpose, — especially for the purpose of being used as a test paper. It was not even shown that the witness was sufficiently acquainted with the signature of Luke Otis to express any opinion as to the genuineness of the signature in question; nor was he asked to express any opinion on the subject.

In the third specification the learned trial judge inadvertently stated to the jury that the paper sued on “ was found among the belongings of ” the plaintiff’s testator. This was unwarranted by anything that appears in the testimony. The paper was produced by the plaintiff, but where, it was found, or when it came into his possession does not appear. In view of the fact that the inventory filed by plaintiff in the register’s office contains no reference to the paper in question, and other circumstances relied on by the defendant, the misstatement of fact complained of cannot be ignored on the ground that it was harmless.

The same mistaken assumption of fact is also involved in the sixth specification, wherein the jury were in substance instructed that the omission, from the inventory, of the paper in sriit, was sufficiently accounted for by the statement of plaintiff’s counsel, “ that it was a disputed matter and therefore it was not counted among the assets.” This statement of counsel appears to have been entirely gratuitous. We find nothing in the evidence on which to base it. It was doubtless suggested by him, as part of his own theory of the case, and as affording a possible explanation of the omission. But that did not justify submission of the alleged explanation to the jury as was done. Causes should be tried on the evidence properly before the jury, and not upon theories of counsel, especially when they are unsupported by the evidence. In this case, the learned trial judge appears to have inadvertently given undue prominence and weight to such theories; and the effect was doubtless 'misleading, and prejudicial to the defendant.

Again, in that part of the charge recited in the fourth specificationj the learned judge, after referring to the paper in suit as evidence in support of plaintiff’s claim, proceeded to say there was, “ in addition to that, certain corroborative evidence which is based upon the assumed good character of Luke Otis, the deceased,” etc. In the absence of testimony on which to base any assumption as to the character of Luke Otis, from which inferences in favor of plaintiff’s claim might be drawn by the jury, this suggestion, as to “ corroborative evidence,” was erroneous as well as misleading. We also think that part of the charge coyered by the fifth specification was uncalled for and unwarranted by any evidence in the case.

On the whole, we have no doubt the defendant’s case was unintentionally but nevertheless seriously prejudiced by the manner in which it was .submitted to the jury. Her defense was payment, in support of which there was direct and positive evidence, corroborated by proof of the testator’s admissions, and by other facts and circumstances, some of which at least were clearly established by competent evidence.

It is unnecessary to notice other features of the case, to which attention was called when the case was here before. In the hurry of trial they appear to have been overlooked by the court. As already intimated, the case was peculiarly one for the consideration of the jury. It was their duty to consider and pass upon the credibility of the witnesses, reconcile conflicting testimony, etc.; and to that end it should have been submitted to them fairly and impartially.

Judgment reversed and a venire facias de novo awarded.