237 Pa. 482 | Pa. | 1912
Lead Opinion
Opinion by
The record in this case is unsatisfactory. Upon the conclusion of the plaintiff’s testimony, the defendant’s counsel moved for a nonsuit. The trial judge directed that a compulsory nonsuit be entered, and at the same time, without motion by plaintiff, entered a rule to strike the nonsuit off. Plaintiff’s counsel then suggested that the case might rest with the direction for a compulsory nonsuit, because an appeal might then be taken at once and an early hearing had in the Supreme Court. Thereupon the trial judge said: “I will direct a nonsuit to be entered, and I will reserve the right to file an opinion setting forth the reasons why I do so.” To this ruling an exception was granted.
In so far as the record shows, no' disposition was made of the rule to strike off the nonsuit. The last entry upon the docket prior to the appeal is “Compulsory nonsuit directed by court.” Under the Act of March 11, 1875, P. L. 6, it has frequently been held that an appeal does not lie from the entry of a compulsory nonsuit, but only from the refusal to take the nonsuit off: Haverly v. Mercur, 78 Pa. 257; Scanlon v. Suter, 158 Pa. 275; Reed v. Casualty Co., 189 Pa. 596; Hallock v. Lebanon, 215 Pa. 1. The stenographer’s notes of testimony at the trial show the entry of a compulsory non-suit, the entry of a rule to take off such nonsuit, which remains undisposed of, and then the entry of a nonsuit a second time. It may be that the trial judge intended the second nonsuit to operate as a discharge of the rule to take off the first; but he did not say so, and the Act of 1875, above referred to, provides expressly that such rule shall be considered and disposed of by the court in banc, not by the trial judge alone. The act contemplates consideration of the questions involved by the court in
There are nine assignments of error, eight of them being to the rejection of offers of testimony by the plaintiff, or the sustaining of objections to questions. The fifth and eighth assignments allege error in the rejection of offers to prove by the plaintiff and by the defendant, Frederick Wolfe, who was called for cross-examination, the allegations in plaintiff’s statement upon which he bases his right of action. The offers were excluded as incompetent, irrelevant and immaterial, and for the further reason, as stated by the trial judge, that he did not consider the evidence, if admitted, sufficient to sustain a verdict. While the offers were too broad in some respects, yet they set out substantially the allegations of plaintiff’s statement, and raised the question of the sufficiency of his cause of action. The trial judge clearly intended by his ruling to pass upon plaintiff’s right to recover at all, upon the facts shown in his statement. In Mundis v. Emig, 171 Pa. 417, Mr. Justice Mitchell said (p. 424): “Undoubtedly the general rule is that where an offer is made as a whole, of evidence partly admissible and partly not, the judge may reject it all, and is not bound to separate the good from the bad: Wharton v. Douglass, 76 Pa. 273; Smith v. Arsenal Bank, 104 Pa. 518; Evans v. Evans, 155 Pa. 572. But he may always do so, and we are not prepared to say that in some cases where the offer is clearly competent in substance and the objection is to a small or unimportant part it may not become the duty of a judge to point out, or at least to call upon the party objecting to specify the parts objected to.”
In the present case the offers were not objected to or rejected because any specified portions were inadmissible, but on the ground that, as a whole, they were immaterial and irrelevant, and did not make out a case
In the case just cited the question of damages did not arise, but under the decision in O’Neil v.' Behanna, 182 Pa. 236, if the plaintiffs were entitled to an injunction for their protection, they were also entitled to recover such damages as were shown to have been suffered.
In Morris Run Coal Co. v. Coal Co., 68 Pa. 173, Mr. Justice Agnew said (p. 187): “There is á potency in
In the present case, while the record is confused, it is apparent that a fundamental principle of justice is involved. If the plaintiff can prove the averments in his statement, he will be entitled to recover such damages as he can show that he has sustained by reason of the wrongful acts of the defendants.
In order to avoid the delay which would result from remitting the record to the court below for formal amendment, to show that the rule to strike off the judgment of compulsory nonsuit was duly discharged, we will treat the record as though it had been thus amended. So regarded, the fifth, eighth and ninth assignments of error are sustained; and. the judgment of the court below refusing to take off the compulsory nonsuit is reversed with a procedendo.
Dissenting Opinion
Dissenting Opinion by
The plaintiff alleged that the defendants had entered into a conspiracy the effect of which was to cause him to lose the situation by which he earned his living; that the conspiracy culminated in a written demand made by these defendants on their common employer which amounted to a threat that unless the plaintiff was discharged the defendants would embarrass the employer’s business by quitting work in a body. After the trial judge had refused several offers he entered a nonsuit for want of sufficient evidence to prove the plaintiff’s case.
When an offer containing relevant and irrelevant matter is made as a whole, the judge is not bound to separate the good from the bad, but may reject it all: 2 Pepper & Lewis C. R. A. Col. 2237, and cases there cited. As already stated, the offers in question, contained irrelevant matter, which was sufficiently pointed out by counsel in stating his objection, and hence the trial judge was justified in rejecting them as a whole and in entering the nonsuit. Moreover, there was no proper disposition of the rule to take off the nonsuit, and for that reason the appeal was premature and should be dismissed.
After a review of the whole record, I cannot see how, without a disregard of the settled rules of evidence and practice, it can be said that the learned court below fell into error. These rules have been established out of abundance of experience to insure a proper trial and to work out exact justice in the greatest number of cases, and I see nothing in the plaintiff’s case which differentiates it from others or justifies the establishment of a precedent that may well cause confusion to the profession and give rise to many futile appeals in the years to come. The plaintiff had the assistance of able counsel, he had every opportunity to which a litigant is entitled, and even though "a fundamental principle of justice” may be involved, it seems to me that, in this age of clogged courts and delayed litigation, we should not lose sight of the fact that there are a multitude of other cases pressing for adjudication, and new