76 Pa. Super. 590 | Pa. Super. Ct. | 1921
Opinion by
The alleged trespass took place July 3, 1919. The plaintiff Mitsios and defendant Morios had been partners about four months before. Thereafter, Mitsios alone conducted a restaurant called the Rainbow in premises leased by him on King Street, Lancaster, and
Defendant Morios testified that Mitsios owed him $300 and that on July 3, 1919, accompanied by a real estate agent he went to the Rainbow to collect the debt. On arrival, they found Mitsios absent and Manuel there. He also testified they were told by Manuel that he didn’t know when his employer would return and that he Manuel was “going to quit” that night. We quote defendant’s reply to Manuel as defendant states it. “I said ‘What are you going to do with the keys?’ He says, ‘I don’t know.’ So Mr. G-antert [the real estate agent] says
1. Passing tbe evidence of damage, it is clear by de< fendant’s own testimony that be committed a trespass and tbe court should have so instructed tbe jury. He bad no right to lock up plaintiff’s place of business. While plaintiff could not complain of defendant’s call at tbe Rainbow to collect tbe debt, be was not bound to approve defendant’s conduct in obtaining tbe keys from
2. We are also constrained to hold that the learned court erred in excluding Manuel’s deposition. It was taken pursuant to the rules of court February 13, 1920, and filed February 21, 1920. Defendant’s counsel attended the examination and cross-examined the witness. It contained relevant testimony supporting plaintiff’s allegation. The learned trial judge excluded the deposition because, he said, he was not “satisfied [1] that the witness, at the time the deposition was taken, was about to leave the jurisdiction, and [2] was absent at the time of the trial and [3] could not be secured. The facts, in our judgment, did not sufficiently support that claim, and, therefore, it was not improper to exclude the deposition.” The rule of court provided “No depositions shall be allowed to be read in evidence unless the party offering the same shall satisfy the court that the witness, if a resident of the state, is either aged, infirm or a way-going witness, and could not, after reasonable pains taken for that purpose, be secured to testify at the time of the trial.” While in such inquiry we accept the finding of fact made below, we must examine the evidence to see whether it supports the finding. “A deposition is, unquestionably, but secondary evidence, and admissible on proof of its having been taken under a competent authority, on due notice, and in a proper manner; and also, on proof that the contingency, for which it was intended to provide, has actually happened:.” Pipher v. Lodge, 16 S. & R. 214, 220. The fact found by the court below was that the contingency in which the deposition should become admissible had not actually happened.