Price v. Hamscher , 174 Pa. 73 ( 1896 )

Opinion by

Mr. Justice Fell,

In calling the attention of the jury to the contentions of the parties the learned judge said that it was alleged and that it was a fact in the case that the plaintiff had not answered truthfully an important question asked him in the course of the trial. At the end of the charge, when presumably his attention had been called to the subject by counsel, the judge stated his recollection of the testimony and the reasons upon which his conclusion was based. These two parts of the charge are brought together in the first specification of error, and as they appear out of their connections they do not properly represent what took place. With the latter instruction the jurors were distinctly told to rely upon their own recollection of what the testimony was. This part of the instruction is entirely omitted.

The effect of the instruction complained of was doubtless prejudicial to the plaintiff. Did it do him an injustice by withdrawing from tho jury a disputed question of fact or by presenting a conclusion not fairly warranted ? While a judge may not decide a disputed question of fact when the averments of the parties in its support or denial are sustained by reasonable proof, he may express his opinion respecting the evidence, and at times it is his duty to do so: Repsher v. Wattson, 17 Pa. 365 : Kilpatrick v. Commonwealth, 31 Pa. 198; Leibig v. Steiner, 94 Pa. 466; Didier v. Pennsylvania Co., 146 Pa. 582; Heydrick v. Hutchinson, 165 Pa. 208. In Leibig v. Steiner, supra, it was said, citing Bitner v. Bitner, 65 Pa. 347, “ Yery strong expressions of opinion on the facts are tolerated, indeed sometimes may be necessary. Even entire accuracy in the statement of facts may «not be obtained, yet, if the case is left fully and clearly to the jury, under instructions not calculated to mislead, there is no fatal error.”

The action was to recover for money loaned. The defendant admitted the receipt of the money, but claimed that it had been paid him as wages. The conflict in the testimony of the parties could not be accounted for on the ground of a misunderstanding or failure of recollection as to the terms of the agreement. One or the other was willfully wrong. The circumstances of the payment, the nature of the services rendered and the relation of the parties to each other were important in arriving at the truth, and they were the subject of thorough investigation. The plaintiff was interested in the result of an action which the defendant had brought against a former employer to recover for injuries received in the course of his employment. He was to receive one third of the amount recovered. The only consideration for this agreement was the aid to be rendered in the litigation. The defendant testified that he had been induced to leave his former employer and bring the action by the repeated solicitations of the plaintiff, who promised to take him into his service and pay him wages until the termination of the litigation. The plaintiff evidently desired to suppress the fact of his connection with and interest in the action. To the question whether he had a financial interest in the suit he gave the evasive answer : “ I did not attend the courts.” When asked what he had to do with the case he answered: “ I was not down there.” To the direct question whether he was present at the trial he answered: “No, sir, I did not testify in that case.” And to the question whether he had been a witness he replied: “ No, sir.” It was shown by the record, the accuracy of which was not disputed, that he had been in attendance as a witness on a number of occasions, and that a claim for his fees as a witness had been made for four days’ attendance. It is admitted that he attended court as a witness in the case, but it is argued that as he was not present at the trial, but only on occasions when the case was not reached, his statement that he had not testified and was not present at the trial was literally true. He said however that he had not attended the court, and all his answers were intended to create the impression that he had not been in attendance as a witness. If not literally untrue, all these answers were evidently designed to create a false impression. The plaintiff, whose duty as a witness it was to tell the whole truth, has little ground for complaint if the court failed to observe the distinction between conveying a false impression and telling an untruth. It was not error to call the attention of the jury to this testimony, and to express an opinion concerning it. In doing so the learned judge withdrew no fact from their consideration. It was distinctly left to them to determine what had been said and what inference should be drawn.

The judgment is affirmed.

Sterrett, C. J., dissents.