Torak v. Philadelphia & Reading Railway Co. , 60 Pa. Super. 248 ( 1915 )

Opinion by

Rice, P. J.,

Since, this case was argued the legal question raised by the first assignment of error has been decided by the Supreme Court adversely to the appellant’s contention, in Philadelphia & Reading Ry. Co. v. Walton, 248 Pa. 381. Therefore, the assignment is overruled.

After the jury were sworn and counsel for plaintiff had opened on his behalf, counsel for defendant stated that he did not desire to make any remarks to. the. jury at that time. But after the plaintiff rested his case in chief, counsel for defendant asked permission to make his opening speech, which was refused. This ruling, which was. excepted to and is the subject of the third assignment of error, was based on a general rule of the municipal court which reads as follows: “In all trials counsel for both sides Shall, make such .opening statements, as may be proper, to the court or jury, before any testimony is offered by either party.” We entertain no doubt as to the correctness of the court’s interpretation of the rule, and we are not convinced that the court exceeded its power in making the rule. While it is in accordance with the practice that prevails in some jurisdictions, it does not accord with the practice that prevails in the other courts of this Commonwealth, and had prevailed immemorially before the establishment of the Municipal Court. Viewing the question from the standpoint of expediency, a strong argument can be made in favor of the ancient practice, and the-opposite view is not without support of good reasons. But the question for us is not as to which is the better practice, but as to the power of the court to make the rule. By Section 16 of the Act of July 12, 1913, there is vested in the Municipal Court “full power to make rules regulating the practice and procedure therein.” There is no constitutional or statutory provision that prevents a court having that general power from establishing a different practice. Nor can we see that any substantial right of the defendant is taken away or abridged by requiring the opening statement of his counsel to be made immediately after the plaintiff’s counsel has made his opening statement, and before any evidence is offered by either party. The order in which counsel for parties address the jury is within the discretion of the trial court, and its action is not reviewable upon appeal: 21 P. & L. Dig. of Decisions, 37732; 1 P. & L. Dig. of Decisions, 1005. This statement of the general rule is supported by a long line of decisions, amongst the more prominent of which áre: Robeson v. Whitesides, 16 S. & R. 320; Smith v. Frazer, 53 Pa. 226; Mendenhall v. Mendenhall, 12 Pa. Superior Ct. 290. As will be seen by a careful study of these and other decisions upon the point, the principle at the foundation of the rule is, that the order in which counsel address the jury is a matter of practice, not of absolute legal right, and, being go, is the subject of regulation by the trial court. If this be true as to closing arguments in individual cases, the making of a general rule like that in question must, for even plainer reasons, be within the discretionary power of the court. This assignment is overruled.

The second and fourth assignments may be considered together. A brief reference to the testimony is necessary to a correct understanding of them. The action was trespass for unlawfully ejecting the plaintiff from the defendant’s railroad train. Plaintiff testified that on the day in question he purchased a ticket froin Reading to Philadelphia, tendered it to a trainman upon the train, by whom it was accepted, but subsequently the trainman returned, gave him a ticket which was not good, as it read the other way and had been canceled; the trainman told him that he would be required to pay his fare; plaintiff refused and he was told to leave the train at Royersford. Upon his refusal to do this, the conductor and another person took him by the arms and forcibly ejected him from the car. He testified that his arms were black and blue for a week as a result of their handling of him; that after they removed him from the train, a police officer called by the conductor took him into the ticket office and kept him there for about twenty minutes, until he paid his fare under threats of arrest; that after he paid his fare he was permitted to go; that subsequently because of lack of money he was compelled to sleep on a hard bench in the railroad station over night; and that following his ejection from the train he was very nervous, had severe bruises over the arms, had chills in consequence of the cold he caught and was confined to bed for a week. He testified that he called in a physician, and this led to the question which is the snbject of the second assignment of error. Clearly, in view of his previous testimony,, it was competent to ask him how many times he was. visited by the physicián. The instructions which are complained of in the fourth assignment of error we think were warranted by the testimony given by the plaintiff. In Laird v. Pittsb. Traction Co., 166 Pa. 4, which was a case somewhat similar to the present, it was held: “In such a case damages are not limited merely to an amount sufficient to compensate plaintiff for the trouble and inconvenience caused him by the delay in being put off the car, and the additional expense necessary to complete his journey. He is entitled to substantial damages for the inexcusable trespass.” See, also, Perry v. Pittsburgh Union Pass. Ry. Co., 153 Pa. 236. The testimony was conflicting, but the questions of fact were all fairly and impartially submitted to the jury, and in giving the instructions which are complained of in this assignment the trial judge was very careful not to invade their province. These assignments are overruled.

The defendant asked for and was allowed several exceptions to particular portions of the charge, but the court refused to allow a general exception, which ruling was excepted to and is made the subject of the fifth assignment of error. The ruling was in accordance with several decisions of the Courts of Common Pleas which had been made at that time. But in the case of Mastel v. Walker, 246 Pa. 65, decided in July, 1914, Mr. Justice Moschzisker stated the rule upon the subject as follows: “A litigant is entitled as a matter of right to except generally to a charge (Foley v. Philadelphia Rapid Transit Co., 240 Pa. 169), and under such an exception he may assign all actual errors of law, or any material matter that is so inadequately presented as to be calculated to mislead the jury; moreover, he may assign the whole charge as inadequate, if it fails to present the real questions in the case or if its general effect is to give a wrong or misleading impression to the jurors concerning the material issues involved or their duties in connection therewith.” It follows that there was error in the ruling here complained of. But it is to be noted that the charge and the notes of testimony were transcribed and filed by order of court and were brought on the record by the special exceptions. We have examined the charge, in the light of the testimony, as if it had been generally excepted to, and find nothing in it which would justify a reversal. Therefore, the error complained of in this assignment was not harmful.

The defendant filed á motion and reasons for new trial. By order of July 1st, the plaintiff was “directed to file a remittitur for $150, within ten days, otherwise motion for new trial granted.” Before the ten days had expired the court made another order, which was evidently intended to supersede the former one (at least, it had that effect), “that a new trial be granted in this case unless plaintiff within ten days file a stipulation that he will accept in full satisfaction of his claim the sum of $150, and all costs, provided the same is paid within ten days after notice of the filing of said stipulation to defendant or its counsel. If said stipulation is filed and payment of said amount with all costs is not made as aforesaid within ten days, then new trial is refused and judgment may be entered on the verdict in the sum of $300.” The plaintiff filed the stipulation, but the defendant did not pay. Accordingly, judgment was entered on the verdict. Similar orders have been sustained, on appeal, in many cases, among which may be mentioned Fleming v. Dixon, 194 Pa. 67; Wirsing v. Smith, 222 Pa. 8; McLaughlin v. Kelly, 230 Pa. 251; Campbell v. Pittsb. Bridge Co., 23 Pa. Superior Ct. 138; Weinberger v. Suess, recently decided in Pittsburgh. After consideration of the nature of the trespass complained of and the facts which the jury could find from the testimony, we cannot say that the damages awarded by the jury were so excessive and so lacking in support in the testimony as to justify us in holding that the court committed error in not granting a new trial.

The assignments of error are overruled and the judgment is affirmed.