Patterson v. Kountz

The opinion of the court was delivered, January 3d 1870, by Sharswood, J. — In this case there are seventeen assignments of error, but fortunately it will not be necessary to consider them seriatim. In the court below there were eight points in writing presented by the plaintiffs, and three by the defendant. The learned judge, at the close of his charge, answered them by saying : “ The points presented by the counsel on both sides are sufficiently answered in the charge, and so far as they are not answered to, they are refused.” The 1st assignment of error is, that the judge did not reduce the answers to writing, and read them to the jury before they retired from the bar to consider of their verdict. The 2d is, that the points and answers were not immediately filed by the prothonotary, and the 3d, that the charge was not filed in writing by the judge before the rising of the court, or within thirty days thereafter. These alleged errors may all appropriately be considered and disposed of together. It is certainly well settled, by many decisions of this court, that it is not necessary for a judge to answer every point which may be presented to him separately, but that, if they are substantially answered in the charge the judgment will not be reversed on that account: Geiger v. Welsh, 1 Rawle 349; Stewart v. Shoenfelt, 13 S. & R. 368; Coates v. Roberts, 4 Rawle 100; Lynch v. Welsh, 3 Barr 297; McCoy v. Hance, 4 Casey 149; Groft v. Weakland, 10 Id. 304; Deakers v. Temple, 5 Wright 234. “ It is a mistake to suppose,” said Chief Justice Gibson, in 3 Barr 297, “that every prayer must have a separate answer. The judge’s recognition of a parcel of disjointed propositions would give the jury little more [251] instruction than the scattered leaves of the sibyl gave to those who consulted her; and it certainly is not error in him to extract the law contained in them, and apply it, in a connected form, to the evidence.” It is supposed, however, that the law in this respect has been changed by the 3d section of the Act of April 17th 1856, Pamph. L. 396. It provides “that whenever the parties, or either of them, shall request the court to charge the jury on particular points of law, drawn up in writing and handed to the court before the close of the argument to the jury, the judge who charges the jury shall reduce the answers to the points to writing and read them to the jury before they retire from the bar to consider the verdict.” For myself I consider it very questionable whether this enactment has any application except to the courts of the Sixth Judicial District of the state. The title of the act is an “Act to provide for the election of an additional law judge of the Courts of Common Pleas in the Sixth Judicial District.” Every other provision in the act is evidently confined to the courts of that district. At the close of the 2d section, and immediately preceding the 3d, it is provided that “ questions of law, which may arise before the president judge, or the said additional judge may, in the discretion of the judge, be reserved for the determination of all the judges, either in term time, or at such adjourned sessions as they may appoint and hold for the purpose.” Then follows the clause in. question at the beginning of the 3d section. It does not say “any” court or “a” court indefinitely, but definitely “the” court; grammatically, the court spoken.of before, and about which alone the legislature was making regulations. I do not see how any one can read the whole act together without coming to that conclusion. I am aware that in Wheeler v. Winn, 3 P. F. Smith 128, Mr. Justice Woodward treats it as a general law applicable to the whole Commonwealth, but, most probably, he did not turn to the Pamphlet Laws, and examine it in connection with the whole act of which it forms a part. Mistakes have often arisen from neglecting this precaution, in the construction of Acts of Assembly. I speak for myself only, and by way of protestando, that the question may not be supposed to have been passed upon sub silentio. It is not necessary to decide it in this case. We are all of the opinion that the act, if it be a general one, makes no change in the law in the particular matter with which we are now dealing. It does not say that every point shall be answered separately, but if one sufficient answer is given to the whole, the law is complied with. Nor need the answer be written on a separate piece of paper; if contained in the charge, it is good enough. If the point is not pertinent, or the proper answer would do the party no good, the law still is, that it need not be answered at all. It would be in the power of any counsel to [252] impose an intolerable burthen upon the judge, if the law was not so. In regard to the subsequent provisions of the same section, that the points and answers shall be filed immediately by the prothonotary, and that it shall be the duty of the judge who delivers the charge to file the same in writing with the prothonotary before the rising of the court, or within thirty days thereafter; it is enough to say that they are only directory, and the refusal or neglect of the prothonotary or judge to perform the duty enjoined does not render the judgment erroneous and entitle either party to a reversal. The same remark is applicable to the Act of April 15th 1856, Pamph. L. 337, which provides that “ the president judges of the several Courts of Common Pleas of this Commonwealth, shall, in every case tried before them respectively, upon request of any party or attorney concerned therein, reduce the whole opinion and charge of the court, as delivered to the jury, to writing, at the time of the delivery of the same, and shall forthwith file the same of record.” By the 25th section of the Act of February 24th 1806, 4 Sm. Laws 276, it was provided, that in all cases in which the judge shall deliver the opinion of the court, if either party, by himself, or counsel, require it, it shall be his duty to reduce the opinion so given, with his reasons therefor, to writing, and file the same of record in the ease. On the construction of this act, which is in pari materia with that before us, it has been often held that it was not error, for which the judgment should be reversed, if the judge refused or neglected to file his opinion as required by the act: Morberger v. Hackenberg, 13 S. & R. 26; Kennedy v. Daily, 6 Watts 274; Koons v. Steele, 7 Harris 203. “In executing this law,” said Chief Justice Tilghman, in 13 S. & R. 28, “ every judge acts on his own responsibility. But what we have to consider is, whether, if the act be disobeyed, it is error for which the judgment should be reversed. And I am clearly of opinion that it is not error; because the act does not say that it shall be so, and it would be most unjust to visit the offence of the judge (supposing that he had been guilty of an offence) on an innocent suitor, who had obtained an honest and legal judgment.” The learned judge below had a perfect right to request the jury to find particular facts, though they might have disregarded his request and found a general verdict: Chambers v. Davis, 3 Whart. 40. It is often a very convenient practice, and prevents embarrassing questions from arising subsequently, on a motion for a new trial, or on a writ of error, when it cannot otherwise be known on what grounds the verdict was rendered. In this instance, where the jury found a sum for the plaintiff “ after allowing the defendants’ claim of set-off for the non-completion of the banking-room, [253] and of the entire building at the time the same ought to have been done, under the contract, making due allowance for the delay occasioned by the default of the defendants, and further, that the actual damage sustained by defendants for the non-completion of the banking-room and building are equivalent to the per diem rent at $30, stipulated to be paid by the said plaintiffs from the time that said banking-room and building ought to have been finished, until the same were finally completed,” the verdict took the wind out of all the plaintiffs’ points and exceptions. They must have decided that they did not do the work under the contract in a reasonable time, taking into consideration the delays which occurred by the faults of the defendants. They could have found no otherwise if all the plaintiffs’ points had been separately and explicitly affirmed. We find no error, therefore, in this record for which the judgment ought to be reversed. Judgment affirmed.