McCord v. Whitacre

Opinion by Rice, P. J., All of the assignments of error relate to the charge and the answers to the plaintiff’s points. The learned judge, after explaining to the jury the nature of the issue, and stating the title under which the plaintiff claimed, rehearsed the testimony of the witnesses on the one side and the other in great detail, and, so far as we can discover, with entire fairness and impartiality, and concluded his general charge with the instructions embraced in the first assignment of error. It is not claimed that these instructions contain anything erroneous, but the complaint is that they were inadequate. It is urged that the court ought to have analyzed the testimony and more fully explained to the jury its legal effect. An examination of the charge in connection with the answers to the points has failed to convince us that this complaint is well founded. The learned judge instructed the jury that the burden of proof rested on the plaintiff, — that the prima facie presumption was that , the property belonged to her husband, — and presented prominently and distinctly the controlling questions of fact upon which the case turned and left the jury to determine them from all the evidence, both of a direct and a circumstantial nature, to the salient points of which he had called their attention. After reciting at considerable length the damaging declarations and admissions alleged to have been made by D. J. McCord, he reminded the jury that the latter had not been called to contradict this testimony and that under the undisputed testimony, John Wilson was not a creditor of D. J. McCord to the amount of the note the latter had given him upon which the property was sold. It is true he did not undertake to advise the jury as to the inference they ought to draw from this and other testimony of a similar nature to which he had called their attention and we cannot say that he ought to have done so under the circumstances. He submitted it to the jury in a manner which sufficiently indicated that it had an important bearing upon the controlling questions [291] of fact and left the jury to draw the inferences. In an issue of this kind he could scarcely have gone further than he did without taking upon himself the duty of counsel and running the risk of coming to speak as an advocate rather than a judge; especially after affirming the defendants’ points which so clearly and concisely presented their theory of the case. A charge is inadequate, it has been held, which fails to present to the consideration of the jury just what the issue is, by a statement of the matters of fact upon which the case turns, and a clear statement of the rules of law applicable to the question involved. This does not imply that the judge must give a dissertation upon the law, but only that he ought to present the case in such a way that the jury will know what conclusion arises under the law from the facts proved. The extent to which the judge ought to go beyond that, depends upon the circumstances of the case and much must be left to his sound discretion. Frequently the course taken by counsel in arguing to the jury may properly influence him in determining this matter, as well as others. When no positive error in the charge can be pointed out, and the points of the party complaining have been unqualifiedly affirmed, it must be a very plain case to warrant us in reversing upon the ground that the court did not analyze the testimony, or did not sufficiently instruct the jury as to the rules for determining its value. Such cases have arisen, as the reports show, but they are rare and we do not .think this is one. See Grantz v. Price, 130 Pa. 415; Com. v. Kaiser, 184 Pa. 493; Walton v. Caldwell, 5 Pa. Superior Ct. 143; Taylor v. Burrell, 7 Pa. Superior Ct. 461. There was no error in the affirmance of the plaintiff’s fourth, fifth and sixth points, coupled as it was with the explanatory instructions given in the answers. The legal principle involved in the fourth and fifth points was recognized by the defendants in their points, and is sustained by the authorities cited by the plaintiff’s counsel. The rule as to the burden of proof on an allegation of fraud was not more strongly stated against the party making the allegation than was warranted, by Mead v. Conroe, 113 Pa. 220, Walter v. Jones, 148 Pa. 589, and many other cases. The second, third and fourth assignments are overruled. The answer to the defendants’ eighth point, as printed in the [292] paper-book seems to be confused, but, taking it in connection with tbe instructions given in the general charge, to which reference was made, the refusal of the three points which immediately followed, and the affirmance of the defendant’s first point, we do nob think the jury could have been misled. Taking these instructions as a whole the defendants, certainly, have no reason to complain of the judge’s ruling as to the effect of the proceedings in the orphans’ court. The fifth assignment is overruled. The sixth does not require particular notice. The judgment is affirmed.