132 A. 120 | Pa. | 1926
In the spring and summer of 1921, the plaintiffs, William and Lena Weiss (husband and wife) resided on the third floor of 5836 Market Street, Philadelphia, and on June 1st, of that year, the defendant insurance company issued to them a policy of indemnity against loss of wearing apparel, precious stones, jewelry, etc., by burglary and larceny, not exceeding $4,000. By a rider added three weeks later, the policy was extended so as to cover loss by robbery from the person, and two months later (August 20, 1921) a further rider was added, increasing the amount of the policy to $8,000. Mrs. Weiss announced about midnight, on September 6, 1921, that three masked robbers had just entered her home, when she was alone, and had forcibly taken from her person jewelry of the value, as later shown, of about $6,050, of which due proofs of loss were submitted, but payment was refused on the contention that no such robbery had *254
in fact occurred; hence, this suit, which has been four times tried and three times appealed to this court, the initial trial having resulted in a disagreement of the jury. The first appeal, from judgment on a verdict for plaintiffs, was reversed for certain errors and a new trial was awarded (
A careful examination of the entire record discloses no reversible error. On the first appeal we held the case was one for a jury to pass upon and, as to that, there is no controlling difference in the case as now presented. True, the burden was on plaintiffs to prove the robbery, which was done largely by the testimony of Mrs. Weiss and, while that differed in some respects from her prior statements, yet it did not as to the main question of the robbery. There are no such conflicts in her testimony, given at the last trial, as to bring the case within the rule of Zenzil et al. v. Del., Lack. W. R. R. Co.,
The testimony of both plaintiffs and also that of Feinberg was discredited by their bad records, each having been punished for infractions of the criminal laws: Mrs. Weiss for being an inmate of and also for keeping a sporting house, which misconduct occurred both before and after her marriage. The trial judge, however, properly sustained an objection to cross-examination as to her alleged more recent similar misconduct, for which she had not been prosecuted. The rule is that a witness may be asked as to his conviction of such crime as affects his credibility, but not as to his alleged violation of the criminal laws, disconnected with the case on trial, for which he was never convicted: Marshall v. Carr,
Complaint is made of the remarks of plaintiffs' counsel to the jury, but as no objection was made thereto at the trial or request for the withdrawal of a juror, the matter cannot now be considered: Kelly v. Scranton Ry. Co.,
Our attention is called to certain excerpts from the charge, but they are free from error when taken with the context, as they must be. The sentence in the charge, quoting Mr. Smithers [defendant's attorney], was not just what he had said, but as it was free from error in law, and he did not ask to have it corrected at the trial, it affords no ground for setting aside the verdict. At most, it was a mistake of fact, not covered by the general exception taken: section 2 Act of May 24, 1923, P. L. *256 439. There was no error in instructing the jury, in substance, that, while plaintiffs' criminal records affected their credibility as witnesses, it had no effect upon their right to contract.
The insurance policy was issued to both plaintiffs and there was some question as to the sufficiency of proof of joint ownership, but as defendant, by its third request, which was affirmed, asked to have that question submitted to the jury, it cannot now complain that the finding thereon was without sufficient evidence: Means v. Gridley,
In Cantor v. National Surety Co., 208 N.Y. Appellate Division Reports 370, relied on by defendant, the appellate division granted a new trial, inter alia, because the verdict was against the weight of the evidence; but, in our practice, that is usually the function of the trial court.
The judgment is affirmed. *257