Lack v. Weber

Per Curiam. This action was brought to recover damages for the breach by the defendant of a contract to employ the plaintiff. The amount of damages suffered by the plain [92] tiff was agreed upon by both parties, and the jury found for the plaintiff. The judgment is attacked for an alleged error in the charge. The portion of the charge in question-is as follows: “ If you believe that any witness who has testified in this case has testified falsely to a material fact in the case, you must disregard the testimony as to that fact; you may disregard his entire testimony.” The above quoted language is a portion of the main charge and the criticism is for the omission of the word “ knowingly ” or “ willfully.” This omission was an error, and an exception was duly taken. The weakness of the appellant’s position lies in the fact that the trial counsel did not clearly point out the error, and indicate specifically to the court the real purpose of his exception. McGinley v. United States Life Ins. Co., 77 N. Y. 495. The record is as follows: “ Defendant’s counsel: I except to that portion of your honor’s charge where you said ‘where any witness has testified falsely as to any particular matter.’ The court: I said as to material fact. Defendant’s counsel: As to°a material fact — The court: That they must disregard his testimony as to that fact; they may disregard his entire testimony. Defendant’s counsel: I except to that.” It is apparent that the learned trial judge understood that it was the claim of the defendant’s counsel that the charge contained the words falsely as to “ any particular matter,” whereas the words “ material fact ” had properly been used. Counsel should have requested the proper complementary instruction. Liad such a request been refused an exception would clearly have been available. It will be observed that counsel was interrupted by the court and not allowed to complete his statement. This may be treated as some excuse for not making a suitable request to charge, and also for failure to be sufficiently explicit. In the face of the well settled rule that: “Dor error in the charge of the court the judgment must be reversed, unless the prevailing parties show affirmatively that the error could not possibly have influenced the verdict,” under the circumstances disclosed, we think +he judgment should not be affirmed. [93] Judgment reversed and new trial ordered, with costs to appellant to abide the event. MacLean, J., concurs in reversal.