Kostivich v. Kostivich

Argued March 3, 1924. All the assignments of this case are directed to the charge of the court. We are asked to find that the charge was inadequate and misleading.

This was an action in assumpsit. The plaintiff claimed that he had loaned to the defendant $200. Defendant denied this. The case was within a very narrow compass and after carefully reading the charge we all agree that the matter in controversy was properly submitted to the jury. It is alleged that the court erred in stating that it was a mere question of personal veracity between the plaintiff on the one side and the defendant on the other. This was a fair statement, for the court instructed the jurors that they should consider the corroboration to be found in the testimony of other witnesses. The fact that the trial judge stated that if they believed the plaintiff, he was entitled to recover, but did not at the same time state that if they believed the defendant, she would be entitled to judgment, we think is trivial, for he was careful to instruct the jury that the burden of proof was on the plaintiff and that there must be a fair preponderance of evidence in his favor to entitle him to a verdict. The statement of the court that the vital question in the case was as to who borrowed the money, whether it was the defendant or her husband, and that the mere question as to whether the money was handed to her or her husband was not the determining factor, we think was proper. The court was careful to say, that for the plaintiff to recover the money, they had to find that it was loaned to the defendant upon her personal credit. The court made the statement, "I don't know that there is any help the court can give the jury in a case of this kind." Notwithstanding this assertion, the court did submit the proper instructions to the jury and the remark was not prejudicial, and in any event, favored neither litigant. There was only a general exception taken to the charge and the trial took place prior to the passage of the Act of 24th of May, 1923, P.L. 439, which defines the effect of a general exception. All these questions must be considered as to whether they constituted basic or fundamental error, for the general exception to the charge only covered that class: Saxman v. McCormick, 278 Pa. 268.

The judgment is affirmed.