Claflin Co. v. Querns

Per Curiam, The first assignment is not in compliance with Rule 17 of this court. It was important that the sheriff’s return at least should have been printed. The second and third assignments are to the refusal of the court to give binding instructions for the plaintiff. They cannot be sustained. If the jury believed the testimony of the defendant and her witnesses given on the trial they were warranted in giving a verdict in her favor. The question was one of fact, and the trial judge would have usurped the functions of the jury had he declared that these witnesses were unworthy of belief, as he would have been compelled to do, if he had affirmed these points. The fourth assignment relates to certain expressions used by the trial judge in stating to the jury the explanations given by certain of the witnesses of the discrepancies between their tes [466] timony given on the trial, and that given on a former hearing. For example, it is complained that the court erred in saying, that the defendant “ frankly ” admitted that she made a mistake in her former testimony; that her son William testified that what he said on the former hearing was a “ mistake; ” and that Mrs. Weis testified that what she had sworn to on the former hearing was what she “ honestly ” believed at that time. It seems to us that these criticisms are too refined to warrant a reversal of the judgment.. A careful perusal of the testimony has failed to convince us that there was inaccuracy in the statement that the defendant “ frankly ” admitted her mistake, and to say that a witness testified that she “ honestly ” believed when she testified only that she “ believed,” added nothing to the force or effect of her testimony. The criticism of the comment on the testimony of William has more merit, but not sufficient to warrant a reversal. Taken as a whole the instructions were neither unfair nor misleading; the inaccuracy last referred to was not a misstatement as to a pivotal fact and ought to have been called to the attention of the court at the conclusion of the charge, if the plaintiff deemed it material. See Taylor v. Burrell, 7 Pa. Superior Ct. 461, 464, and cases there cited. An examination of the whole charge disclosed no error calling for reversal. All the assignments of error are overruled and the judgment is affirmed.