Rodovinsky v. Roxford Knitting Co.

5 Pa. Super. 636 | Pa. Super. Ct. | 1897

Opinion by

Smith, J.,

Adequate pleadings are as necessary in the appellate courts as in the courts of first instance. The assignment of errors, when filed, constitutes the declaration of the appellant and specifies the errors alleged to have been committed by the trial court. Each error must be specified separately and distinctly, and to these the appellee should plead, or demur, as the circumstances may warrant. In this way questions are properly presented for review: Burkholder v. Stahl, 58 Pa. 371; Armstrong’s Appeal, 68 Pa. 409. An appellate court may, in its discretion, consider jurisdictional or other fundamental errors apparent on the face of the record, though unassigned; but errors not thus manifest, though they might be adjudged fatal if properly brought to notice, will not be considered unless specifically assigned: Anderson v. Long, 10 S. & R. 55: Uplinger v. Bryan, 12 Pa. 219; Hutchinson v. Campbell, 25 Pa. 273; Arthurs v. Smathers, 38 Pa. 40.

The assignment in the present case contains two specifications. The exception on which the first is based is the following: “ Exception for defendant to the charge of the court submitting the case to the jury at all to find in favor of the plaintiff; ” and on this the entire charge is assigned for error.

Both the Supreme Court and this court have discountenanced the practice of assigning the entire charge for error, without specifying the ground of complaint. Nearly half a century ago, the Supreme Court said: “ The fourth error assigned, to wit: that the court erred in their charge to the jury generally, is no assignment of error at all. If the party cannot put his finger upon some error and specify it, we take it for granted that he cannot find any: ” Zerbe v. Miller, 16 Pa. 488, Coulter, J. A similar view repeatedly appears in later cases. How such an assignment has been regarded by this court is shown in Com. v. Swayne, 1 Pa. Superior Ct. 547, and in Taylor v. Sattler, decided in the present term (to be reported in 6 Pa. Superior Ct.). Its defects are strikingly exhibited in the case before us. The charge embraces the views of the court below in relation to the alleged negligence of the defendant, the plaintiff’s assumption of the risks of the employment, the effect of the plaintiff’s alleged complaint of defects in the machinery used, and the defendant’s alleged promise of remedy; in general, the matters to be established to entitle the plaintiff to recover, and to be considered in estimating the damages in the event of her right to recover. An assignment, in gross, of the charge on all these points as erroneous, is a flagrant violation of Rule XV., which requires that “ Each error relied on must be assigned particuularly, and by itself. If any assignments embrace more than one point, or refer to more than one bill of exceptions, or raise more than one distinct question, it shall be considered a waiver of the errors so alleged.” In the present case, neither specifically nor by description are the errors complained of indicated. The assignment includes every point involved and every question embraced in the charge; and as it makes no discrimination among these, it can be understood only as alleging error in the instruction respecting each. Further than this, it includes, without specification, all possible errors of omission, of bias, of misrecital of evidence, and of inadequacy in any respect. Under the rule, its inclusion of all that might, for any reason, be complained of, must be regarded as a waiver of the errors thus indefinitely alleged.

There are other aspects of this assignment, but they are equally untenable. If construed as alleging error “ in submitting the case to the jury to find in favor of the plaintiff,” it must fail, because the case was not so submitted. The court distinctly instructed the jury as to the matters which the plaintiff must establish to their satisfaction, with the further instruction that unless these were established “ that would be the end of the case.” If construed as alleging error, not in the manner of submitting, but in “submitting the case to the jury at all,” it has nothing to stand on, since there was no request to take the case from the jury. In this view, the assignment can be regarded only as in substance alleging that the court erred in not directing a verdict for the defendant; but in the absence of a request for such direction this affords no ground of complaint.

The second assignment was practically abandoned for insufficiency at the argument. It violates Rule XVII. in not quoting the full substance of the bill of exceptions, and indeed exhibits no exception. When the rejection of evidence is assigned for error, the assignment should show that the ruling was excepted to. It is not enough that this may be indicated by the notes of evidence, as in the present instance it appears to be, though somewhat obscurely, from the unusual method of printing it. The assignment must be self-sustaining, and contain in substance the bill of exceptions on which it is based. In the absence of this, there is nothing to entitle it to consideration.

The record disclosing no error, the judgment is affirmed.