Eifert v. Lytle

172 Pa. 356 | Pa. | 1896

Opinion by

Mr. Justice McCollum,

The first, second, third, fourth and fifth specifications of error call in question the accuracy and fairness of the charge, the sixth relates to the denial of the defendants’ motion to withdraw from the consideration of the jury the testimony which identified their witness Robert Nicholson as the Robert Nicholson who was convicted of larceny in the court of quarter sessions of Somerset county in August, 1860, and sentenced to-imprisonment for one year in the Western Penitentiary, and the seventh complains of the refusal of the court to grant a new trial.

The defendants requested the court'to charge the jury that, as the line claimed by the plaintiffs gave them more land than their deed called for and the defendants less land than their deed called for, this circumstance should have great weight in sustaining the latter’s contention that “ the line 62 degrees 40 minutes west 279.1 perches ” was the true line between the parties. The court declined to say that great weight should be given to the circumstance mentioned in the request, but instructed the jury that it should be accurately weighed in favor of the line claimed by the defendants and that it was for them to determine what weight should be accorded to it in connection with the other circumstances in the case. As we cannot detect in this instruction any partiality or tendency to mislead, or find in the evidence or the law applicable to the case any ground for hostile criticism of it, we overrule the specification of error which complains of it.

It is contended by the defendants that there is error in the instruction in regard to the effect of the acts and declarations of the plaintiffs concerning the location of their line, and under this branch of their contention the second, third and fourth specifications may be considered together. The defendants in their fifth and sixth points virtually requested the court to say to the jury that if they cut timber on the plaintiffs’ land under a misapprehension of the location of the latter’s line, induced by what Ernest Eifert said and did, there could be no recovery in this action. The court affirmed their points as to timber cut subsequent to and in consequence of the acts and declarations mentioned, but denied them as to timber cut before anything was said or done by the plaintiffs or either of them which misled the defendants as to the true location of the line. The learned court also said, in substance, that if the timber was cut by the defendants in assertion of their claim, and in cutting it they were not influenced in any respect by any act or declaration of the plaintiffs, the former were liable in this action to the latter for the value of it. In these instructions respecting the effect of the acts and declarations of the plaintiffs upon the liability of the defendants, we concur. They are clear, impartial, pertinent to the questions raised by the points, and, we think, correct. While any act or declaration of the plaintiffs opposed to and tending to discredit their contention on the trial was admissible and calculated to weaken their claim concerning the true location of the line, it cannot operate as a bar to their right to compensation for the timber cut by the defend•ants, on their land, unless the defendants in cutting it were misled or influenced by such act or declaration.

The fifth and sixth specifications may be considered together because both relate to the testimony affecting the character of the witness, Robert Nicholson. The sixth complains of the refusal to withdraw this testimony from the consideration of the jury; and the fifth, of the instructions in regard to the effect of it. There was no objection made to the admission of the testimony of McNear and Phillipi and no exception taken to it or to the testimony of Klink. It was offered and received to contradict Nicholson, who in answer to a question by the defendants’ counsel had said that he was not sent to the penitentiary on any charge from Somerset county. Some of the testimony tended directly to show that the Robert Nicholson who testified in this case was missing for about a year directly after Robert Nicholson was convicted of larceny and sent to the penitentiary, and this, independent of the general understanding of the people as to his whereabouts, was entitled to some consideration in ascertaining whether he was the Robert Nicholson who was sent to prison. Some of the testimony also tended to show that he was the only Robert Nicholson in the section of the country where the' larceny was committed. If the testimony to which we have specially referred was competent on the question of identification, and we think it was, the motion to withdraw was properly overruled because it included the entire testimony of the parties named in it. If a part of the testimony was incompetent and a part of it competent, the motion should have been confined to the objectionable part. In addition to what we have already said in support of the refusal to withdraw the testimony we think it was warranted by the opinion of this court in Robinson v. Snyder, 25 Pa. 203.

We see nothing in the instruction complained of in the fifth specification which calls for a reversal of the judgment, and nothing in the case to warrant a departure from the settled rule that the refusal of a new trial will not be reviewed on appeal.

All the specifications are overruled and the judgment is affirmed.