30 Pa. Super. 370 | Pa. Super. Ct. | 1906
Opinion by
This was an action of trover and conversion begun before a justice of the peace and brought into the common pleas by appeal from his judgment. On the trial in the common pleas the plaintiff offered to testify in his own behalf, but objection being made to his competency, and being examined upon his voir dire by the defendant’s counsel, he admitted that his wife also claimed the ownership of the chattels. Thereupon the defendant put in the special plea that the goods for which damages were claimed belonged to the plaintiff’s wife. The plaintiff then pleaded surprise, and also offered to show by his own testimony, in addition to his ownership, that at the time of the trial, as well as at the time of the alleged conversion of the chattels by the defendant, the plaintiff’s wife had deserted and was living separate and apart from him, without cause. Upon the court suggesting that the plaintiff would be entitled to a continuance on the plea of surprise, the defendant withdrew the special plea of ownership in the plaintiff’s wife, and thereupon the court sustained the objection to the competency of the plaintiff as a witness. It will be seen from the foregoing recital that at the time this ruling was made the pleadings did not show that any right, interest or claim of the plaintiff’s wife in the Chattels was either directly, remotely or contingently involved in the issue. As the case then stood upon the record, in-
But it may be said that if the plaintiff’s incompetency did not appear at the time he was rejected, it did appear when the defendant testified that he took the chattels from the plaintiff’s premises by direction of the plaintiff’s wife who claimed to be the owner of them; therefore, it may be argued, no harm was done by the ruling, because the defendant would have been entitled to have the testimony struck out. We are not prepared to say that this would not be true, if these facts had been developed in the presentation of the plaintiff’s case, and it had appeared, as was said in Norbeck v. Davis, that the wife was on the side of the defendant in the issue being tried. Nor do we say that the court would not have been justified in instructing the jury to disregard the testimony of the plaintiff upon the question of ownership, if they believed the defendant’s testimony that he was simply acting as the wife’s agent and under her direction in taking and holding the property. In either of these contingencies there would appear to be that actual antagonism between husband and wife which was in the contemplation of the court in the case last cited. But we cannot agree that the court would have been bound to take the testimony of the defendant as to the facts last referred to as absolute verity, and therefore we cannot declare that the ruling, though erroneous, was harmless. We think the plaintiff should have been permitted to testify — of course excluding confidential, communications — subject to the power of the court to take such action regarding his testimony as the facts subsequently developed in the trial might warrant. Upon the question of practice we refer again to Pleasanton v. Nutt.
Judgment reversed and venire facias de novo awarded.