198 Pa. 490 | Pa. | 1901
Opinion by
The decisions relating to the reservation of points at the trial of a cause have not always furnished a clear guide on the subject. In the recent cases of Newhard v. Penna. R. R. Co., 158 Pa. 417, Fisher v. Scharadin, 186 Pa. 565, and Williams v. Crystal Lake Water Co., 191 Pa. 98, the distinction between the reservation of a question of law and one of fact was pointed
The question reserved at the trial, “whether there is any evidence in the case upon which the plaintiff is entitled to recover,” is good in form but not in substance.
The testimony gave rise to two principal questions, one of law and one of fact: (1) whether a prosecutor who becomes bail for a prisoner under an agreement with a third person to indemnify him, is precluded on the ground of public policy from recovering on the bond of indemnity given; (2) whether the plaintiff acted in good faith after the bond was given, and gave the surety an' opportunity to perform its covenant of indemnity. The first question might have been reserved, and the second submitted to the jury, and a judgment entered in favor of the defendant non obstante veredicto, if the finding of the jury had been in the plaintiff’s favor on the question of fact, and the opinion of the court against him on the question of law. The second question could not properly have been withdrawn from the jury, as its decision depended upon disputed facts. In substance the reservation is : whether upon the whole testimony the plaintiff is entitled to recover; and this is clearly bad, as it involves the drawing of inferences of fact from the evidence, which is the province of the jury: Casey v. Paving Co., supra.
It was said by Sharswood, J., in the opinion in Wilde v. Trainor, 59 Pa. 439, “ wherever there is a judgment on reserved points, it is always desirable that there should be a written opinion to indicate to the court of errors the ground of the judgment.” This suggestion has been repeated many times since, but it is frequently disregarded. The decision of the
The judgment is reversed with a venire facias de novo.