Taylor v. Sattler

Opinion by

Smith, J.,

In Com. v. Swayne, 1 Pa. Superior Ct. 547, this court expressed its disapproval of the practice of assigning for error the entire charge, without further specification, for reasons thus tersely stated by our Brother Beaver : “ Rule 15 of this court provides that each error relied on must be assigned particularly and by itself. What is the error relied upon, in this assignment ? Is it that the charge of the court taken as. a whole was inadequate, or that it was unfair to the defendant, or that it failed to state the evidence specifically and fairly, or that the conclusions of law therein set forth were erroneous ? We cannot tell. The particular error complained of should be specifically set forth, so that the attention of the court may be directed thereto. This assignment, therefore, lacking as it does the essential element of particularity, is not considered.” This ruling is the logical outcome and application of the proposition laid down by the Supreme Court that: “ The purpose of an assignment of error is to place upon the records of this court the specific ground of complaint on the part of the appellant: ” Rosenthal v. Ehrlicher, 154 Pa. 396, WILLIAMS, J.

It is well settled that, in the absence of a request for specific instructions, mere errors of omission in the charge can be complained of in the appellate court only in exceptional cases; as, for instance, when the presentation of the question involved is so imperfect and inadequate as either to leave the jury practically without direction on important points, or tends to mislead them, as in Tietz v. Traction Co., 169 Pa. 516; Richards v. Willard, 176 Pa. 181: when some aspect of the evidence demands that the attention of the jury should be called to it as involving material questions for them to consider and determine, as in cases of which Herstine v. R. R. Co., 151 Pa. 244, is a type; when prominence is given to evidence on one side, without adequate reference to evidence in contradiction, as in Herrington v. Guernsey, 177 Pa. 175; Lerch v. Bard, 177 Pa. 197 ; or where, in a trial on indictment, it is the duty of the court to fully instruct the jury with respect to the ingredients of the offense and the evidence necessary to convict. As to errors of commission, there can be little difficulty in pointing them out, if not specifically, at least by description, as indicated in Com. v. Swayne, supra. Even in the rare instances in which the charge embraces but one point, or raises but one question, the practice of assigning it in lump is not to be commended. It is, in all cases, more in conformity with the spirit and purpose of the rule to present the portion alleged to be erroneous “ particularly and by itself,” separated from extraneous matter. If this cannot readily be done, the specific character of the alleged error can be clearly indicated.

In the case before us, as in Voskamp v. Conner, 173 Pa. 109, the assignment is “ as far from being specific as it can well be made;” and, as was said in Walls v. Campbell, 125 Pa. 346, if we are to consider it, “ we must treat the case here as it was tried below.” We must regard it as the trial judge was led to view it from the pleadings, the evidence, and the contentions of counsel. We are not to consider whether it might or should have been tried on some theory that would have led to a different result. When no radical error is manifest, this court will adhere to the theory of the case which the parties adopted, and in view of which the court instructed the jury: Griffith v. Knarr, 1 Pa. Superior Ct. 379. “A judge who submits a case to a jury in the manner in which it is presented by counsel, ought not to be convicted of error for not presenting it in some other way to which his attention had hot been called: ” Hartley v. Decker, 89 Pa. 470, Paxson, J. To determine, therefore, whether the trial judge may be convicted of error in the charge before ns, we must examine the case as it was presented on the trial, and decide, not whether the theory on which the parties chose to present it was the correct one, but whether the charge of the court, upon that theory, can justly be complained of by the appellants.

The declaration alleges, as breach of the condition of the bond, that the obligors did not prosecute the attachment with effect, or recover a judgment therein, or pay the legal costs and damages which the defendant therein — the plaintiff here — sustained by reason of the attachment; and further avers, as the direct and specific cause of damages thus sustained, “ that the defendant took under said attachment and afterward converted to his own use,” the property attached. The plea of nonassumpsit, by which this was met, was merely a denial of the execution of the bond and the alleged breach of condition; and as the affidavit of defense is not printed, it does not appear that anything else was in controversy. On the trial, the execution of the bond, with the failure to prosecute with effect, to recover judgment, and to pay the legal costs and damages, were not. controverted; and the evidence left nothing in issue but the nature, cause and extent of the damages, as specifically laid— that is to say, the loss to the defendant in the attachment from the alleged possession and conversion of the goods, under the writ, by the plaintiff therein. The possession taken by the plaintiff in the attachment, of the premises on which the defendant’s goods had been left, included the custody of those goods, and as to the greater portion of them nothing further is shown. The plaintiff in this action contended, on the trial, that by reason of this possession they were lost to him. This was denied by the defendants. This was the only matter in controversy. The evidence on both sides was directed solely to the condition and value of the property when the attachment was issued or executed, and when it was dissolved. There is no assignment of error to the admission of evidence to maintain this issue on the part of the plaintiff, nor to the rejection of evidence offered for the like purpose by the defendants. As the sheriff’s return is not printed, it does liot appear that the officer took possession of the property, or even saw it. Whether he had incurred any liability in the premises is a question not raised on the trial nor presented by the record. As already said, the case is to be treated here as it was tried below; and as this question was not tried below, there is nothing to warrant its consideration here.

With the pleading and evidence before him, and having heard the counsel as to the matters which, in their view of the case, were involved, the trial judge thus stated the issue to be determined by the jury: “ The plaintiff maintains that the property, whatever was there, was utterly worthless to him at the time of the dissolution of the attachment, while the defendants maintain that it was as good as when the attachment issued.” Since this portion of the charge is excluded from the assignment of error, it must be accepted as an accurate statement of the issue made by the parties. The trial judge further instructed the jury that the damages recoverable were such as accrued “by reason of the attachment; ” and that, “ if the goods were either lost or destroyed or injured by reason of the attachment, for that loss, destruction or injury, the plaintiff would be entitled to recover in this action. But if they were there in the same condition when the attachment was dissolved that they were at the time the attachment was issued, and the plaintiff could have had them by going for them, then he did not suffer any loss.” He further limited the extent of recovery by excluding from consideration tools which had become lodged in the well and could not be withdrawn. In the view of the case in which the parties united on the trial, this was certainly as favorable to the defendants as they had a right to expect. As to the measure of damages, it is entirely consistent with the law on that subject as stated in Com. v. Improvement Co., 163 Pa. 99, and in Berwald v. Ray, 165 Pa. 192.

Thus the issue was joined, and the ease submitted to the jury, on the theory of the rights and liabilities of the parties which their counsel presented; neither the admission nor the rejection of evidence is complained of; and the specific instructions respecting the duty of the plaintiff, and the conditions under which he would not be entitled to recover, were such as the appellants in their points asked the court to give. The verdict established the liability of the appellants upon the theory of the case by which they chose to have it tested. They cannot now be permitted to change their ground and allege that the case should have been treated in accordance with a view not presented on the trial: Gowan v. Glaser, 3 Cent. Rep. 109. Their responsibility for the seizure and retention of the property under the attachment having been settled by the verdict, it is too late for them to protest that they had no part in the course of action by which the plaintiff was injured, and that he should seek redress from the sheriff.

Treating the case here as it was tried below, — on the theory upon which both parties proceeded, and which was substantially followed by the trial judge, — there is no error in the charge, the verdict was justified by the evidence, and the judgment must be affirmed.

Judgment affirmed.

Reeder, J., dissents.