Helzer v. Helzer , 187 Pa. 243 ( 1898 )

Opinion by

Mr. Justice Mitchell,

A matter of practice may be noticed preliminarily. The learned judge gave a binding direction to the jury to find for defendant, yet the assignments of error include several to the refusal of appellant’s points. These are wholly irrelevant to the case as presented here. A point, as said by our Brother Dean, in Malone v. R. R. Co., 157 Pa. 430, is “ to obtain from the court specific rulings on the law applicable to the facts,” It may be stated in positive form when the facts are undisputed, or hypothetically, as it must be where the facts are in contest — -if the jury find the facts to bo so and so, then the law is so and so. But in either form, positive or hypothetical, it is a. direction •from the court what specific rule of law should be applied by the jury to the facts as thejr find them. Where the jury have no duty of such application left to them, and the court itself applies the law by a binding instruction what verdict shall be rendered, answers to points become mere theoretical discourses on law, having no practical bearing on the case. All the answers might be wrong and yet if upon the facts as they appear the direction of the verdict was right, the answers would go for nought in this Court. The only question therefore really in this case is whether the learned judge was right in directing a verdict for defendant.

The plaintiff declared upon a lost note, and at the trial gave evidence as to the making of the note, its amount, the search and failure to find it. All this was in very general terms, but it was sufficient to carry the case declared upon to tlie jury. Plaintiff was then proceeding to make more specific proof of the contents when defendant produced a note purporting to be the one sued on, but which the plaintiff after inspection declined to accept, or recognize as such. The judge, however, then refused to admit any further evidence of the contents and, without striking out the evidence already in, peremptorily instructed the jury to find for the defendant. This he did apparently in the view that'the note itself being produced, and being the best evidence of its contents, the previous testimony became merely secondary and inadmissible. In general that i's a correct.view. If secondary evidence has been received, on the supposition-that it is the best attainable, and it subsequently appears during the trial that a higher grade of evidence is within present reach of the party, no doubt the judge may require its production. But the necessary preliminary to that is to strike out the secondary' evidence already in, and that cannot be done unless the presence of the better evidence is admitted or otherwise indisputable. The judge was apparently of opinion that the plaintiff was bound to'accept the note produced by the defendant or to submit it to the witness to disprove its identity with the one declared on. But the burden of such proof was not on the plaintiff. She had declared on a lost note, and had made out a case for the jury on that basis. Her case was liable'to be overthrown by the production of the note itself with a resulting contradiction or.-material .variance of its terms, but-plaintiff was not bound to accept any or every paper produced as the genuine basis of suit. The burden of proving it to be so was on the defendant, and, if contested, it would be a question for the Ruy-

The direction to find for the defendant therefore overlooked the status of the case, and was improvidently given.

Judgment reversed and venire de novo awarded.