Thornton v. Britton, 144 Pa. 126

Thornton v. Britton

144 Pa. 126 | Pennsylvania Court of Common Pleas, Fayette County | 1891

Opinion,

Mr. Justice Mitchell:

The first assignment of error relates to the form of the action. It is stated by appellant as an action by Julia Thornton and John R. Thornton, her husband, in right of the said Julia, while the counter-statement by appellee describes it as an action by J. R. Thornton for the use of Julia Thornton his wife. The difference, though formal, is material. In the first form, it would not be a bar to another action by the husband in his own right; in the second it would. The record, as sent up to us, does not contain the original prsecipe, summons or narr, so that we are unable to say positively which contention is right; but from the copy of docket entries, and the entire absence of any evidence as to title in the wife, we presume that the action, though in form by the wife, was intended to be by the husband for her use. The error, being formal, was amendable; and, as the case seems to have been tried on the merits between the real parties, we will allow it to be amended here: Act .of May 20, 1891, P. L. 101.

*130The second and third assignments may be taken together. The second is easily disposed of. The court was asked to say as matter of law that no verdict could be rendered against Hogg. But the return to the writ was conclusive as to his possession at the time of service, and presumptive evidence of his continuance in possession. This presumption could only be overcome by evidence to the satisfaction of the jury. In no view, therefore, could the court say, as matter of law, that there was no evidence connecting Hogg with the possession. The next point should have been submitted to the jury, if it was supported by sufficient evidence. The return was, as already said, presumptive evidence of continued possession. Under the cases of Sopp v. Winpenny, 68 Pa. 78, and Miller v. Henry, 84 Pa. 38, Hogg was entitled to show in this action that his possession had terminated, but the onus was on him to do so, to avoid liability. The only evidence tending to that result was that of Britton, who testified: “ I had possession. Q. You, personally, or who else ? A. Well, I moved on to it personally; I could get no one to go on to it. Q. Has Mr. Hogg ...... had it in possession ? A. No, sir; I had it individually.” This clearly refers to actual residence on the land. But Hogg was Britton’s tenant in common, and there is nothing in the latter’s evidence to show any claim of adverse title, or ouster of Hogg’s joint legal possession. It is entirely consistent with Britton’s accounting to Hogg for his share of the profits, or at least with his obligation to do so. Such evidence falls far short of the standard required by Sopp v. Winpenny, and the court was right in treating it as insufficient to overthrow the legal presumption arising from the return to the writ.

The testimony of Crawford, the subject of the last assignment, was taken in a previous action between the same parties and in relation to the same matter. The best evidence, of course, is the testimony of the witness himself given in the presence of the jury. A deposition is not a full equivalent, and especially if much time has elapsed, or the litigation has taken another turn. Both parties, therefore, are entitled to have" the witness before the jury in propria persona, if that be practicable; but whether it is practicable or not must be determined by the trial judge, and is largely within his discretion. *131Of course, ill the witness be dead, or out of the jurisdiction of the court, the notes of his testimony are competent evidence, being equivalent to a deposition: Pratt v. Patterson, 81 Pa. 114. But, even if the witness, though alive and within the jurisdiction of the court, be old, or infirm, or sick, to a degree that renders his attendance in court dangerous or unduly burdensome to himself, or impracticable for other reasons, then his deposition may always be substituted for his bodily presence, and the determination of this question in each case as it arises rests largely in the discretion of the court. On a trial for murder, for instance, the judge presiding would feel it his duty to enforce the attendance of a witness having knowledge of the crucial facts, even at some risk to the witness’s health or life ; while in a civil action he might feel free to hold that a much smaller risk to the witness would be sufficient to excuse him from personal attendance. Iu the present case, it was shown that Crawford was eighty-seven years old and confined to his room. We cannot say that the learned court was wrong in holding that his testimony at the former trial might be read, instead of enforcing his attendance, or compelling plaintiff to take his deposition over again, when lapse of time since the occurrences to which it related, and advancing years, might render it less weighty with the jury.

Appellee has leave to amend the form of action, and thereupon

Judgment affirmed.