Mundis v. Emig, Appeal, No. 441

Appeal, No. 441 | Pa. | Oct 7, 1895

Opinion by

Mr. Justice Mitchell,

This case has had more prolonged consideration than its importance entitled it to, because at the argument we received the impression that some of the offers of evidence by the plaintiff were good in substance, and though they contained irrelevant matters, yet the latter might probably be treated as merely introductory and harmless surplusage, and the plaintiff be allowed to put his case before the jury. 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" court="Pa." date_filed="1874-10-05" href="https://app.midpage.ai/document/wharton-v-douglass-6234826?utm_source=webapp" opinion_id="6234826">76 Pa. 273 ; Smith v. Arsenal Bank, 104 Pa. 518" court="Pa." date_filed="1883-11-05" href="https://app.midpage.ai/document/smith-v-arsenal-bank-6237609?utm_source=webapp" opinion_id="6237609">104 Pa. 518 ; Evans v. Evans, 155 Pa. 572" court="Pa." date_filed="1893-05-25" href="https://app.midpage.ai/document/evans-v-evans-6241613?utm_source=webapp" opinion_id="6241613">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.

Our difficulty7 in the present case has been caused chiefly by the want of the pleadings and the evidence. Neither have been printed, and we are without guide to the status of the case when the separate offers were made and their relation to each other. It is said in appellee’s paper-book that they were not progressive as they7 appear in the assignments of error, but that the first in time was the one set forth in the sixth assignment. This was a long offer containing undoubtedly a great deal of irrelevant matter, and was specifically objected to on that ground among others. The ruling of the learned judge was that “ the offer, as made, cannot be admitted.” This was a clear intimation to appellant to separate his offer into its component parts, and according to appellee’s paper-book he proceeded to do so. But the substance of the offer, which would have made it good, was the recognition of Ludwig’s authority to employ plaintiff for the firm, by Clayton Emig’s promise to pay the balance of his wages, and by the firm’s payment of his board while engaged in the work. Unfortunately none of the subsequent offers presented this evidence free from the objectionable matters with which it was clogged in the first, and most of them omitted it altogether. The agreement made by Ludwig with Kissinger, of itself proved nothing, for he might have been specially deputed to make that contract without any general authority, and as pointed out by the learned judge in his opinion refusing a new trial, even a general authority as manager to procure contracts to dig wells, does not imply any7 authority to do the work or to engage workmen for that purpose. All the offers therefore which were based on this Kissinger contract were properly excluded for irrelevancy when they were offered, although if plaiutiff had separately offered and got in the evidence above mentioned as to the recognition by the firm of Ludwig’s authority to engage him, the Kissinger contract might then have been admissible as corroborative. As the offers were made however we are unable to see that the appellant suffered any injustice at the hands of the learned court below.

Judgment affirmed.