O'Donnell v. Gaffney, Appeal, No. 100

Appeal, No. 100 | Pa. Super. Ct. | Mar 12, 1903

Opinion by

Beaver, J.,

We have just considered, in Hawn v. Stoler, Exr., ante, p. 307, the elements which enter into and the conditions under which a valid donatio mortis causa may be made.. It is not necessary to repeat them here.

The assignments of error relate to the answers of the trial judge to the several points of charge submitted by the defendant and embody complaints of a very general character as to what the court did not do. The points of charge submitted by the defendant numbered ten in all. Six wére affirmed and four declined. The assignments of error relate to the affirmance by the trial judge in the court below of the first, second, third, fourth and ninth, points of charge. The sixth, which was affirmed, is not assigned for error. The others were all declined.

It is probably enough to say that the points affirmed were presented with a brief of the authorities which abundantly sustain them. If they are so printed in the report of the case, there is no necessity for repeating the authorities here. Other Pennsylvania authorities might be added as to several of the propositions involved, but we do not think it necessary to enter upon the general discussion of them. As remarked in Hawn v. Stoler, supra, there is an exhaustive .discussion of the general subject of donatio mortis causa in 1 Bouvier’s Law Dictionary, Rawle’s Revision, 606, an examination of which, together with the authorities quoted by the appellee here, fully justify the rulings of the court below.

The other assignments of error are so general in their character and for the most part relate to what the court did not do, that it is scarcely necessary to notice them seriatim. The sixth, alleges that “the court erred in presenting the defendant’s evidence by reading only the evidence in chief of the defendant and her daughter.” That testimony constituted the pinch of the case. It was essentially necessary to read that to the jury to enable them to determine what was involved in the defense. If the court omitted anything, it was the privilege of' the appellant’s counsel to call the attention of the court to the omission, and it is only fair to say that this privilege was’ freely exercised in the course of the charge. As appears in the stenographer’s notes, “ Mr. O’Callaghan requested the court to call the jury’s attention to the testimony of Mr. Darragh as to the conversation with the defendant on the subject of the finding of the stock, and following testimony of Thomas Darragh was read from the stenographic notes.” Then follows the testimony, the court remarking: “ That, of course, gentlemen, is proper for you to consider,—the testimony of all these witnesses and the testimony of Mr. Darragh. I call your attention, without expressing any opinion one way or the other about it, to the fact that Mrs. Gaffney said there was no such conversation,” If there were other omissions, the same course was open to and should have been adopted by the appellant.

The case was well tried, the charge of the court was full, exhaustive, and, so far as we can see, fair. We think the verdict was justified by the evidence.

Judgment affirmed.