280 Pa. 325 | Pa. | 1924
Opinion by
This action was brought to recover upon a policy issued by the defendant company to indemnify against loss of jewelry. It was taken out on June 1, 1921, in the amount of $4,000, and originally protected against burglary alone. Three weeks later, a rider was secured covering damage arising by reason of robbery from the person, and, on August 20th, for a further premium, the maximum liability was raised to $8,000. A reason given for the increase was an alleged buying of additional valuables, though on the trial the dates of such purchases could not be given. Testimony was offered to show that, on September 6, 1921, about two weeks after the policy limit had been doubled,, a robbery occurred in the apartment of the plaintiffs.
It was insisted that both husband and wife, — married in 1920, — left their rooms in the early evening, one to attend a wedding, and the other a theater, and that the wife returned to the apartment shortly after eleven o’clock, removed her hat and went into the kitchenette, which opened upon a fire escape. It is said that three masked men then entered, one put his hand over her face and the other removed the jewels, including finger rings and bracelets, and a bar pin, though no violence to the person appeared, except a swelling on her face. Her screams attracted the attention of residents of the floor below, and they summoned a policeman. He testified to observing certain bruises, and another officer gave evi
The case rested chiefly on the testimony of the husband and wife, and a third party, the keeper of a cigar store, who claimed to have sold to the plaintiffs the articles alleged to have been taken. One witness was called by the defendant to show contradictory statements by Mrs. Weiss, but his testimony was properly rejected because of the failure to identify her as the person with whom he talked. The case was submitted to the jury, which rendered á verdict for $6,558.50, subsequently reduced by $59.65.
The right to recover rested upon the evidence given by the plaintiffs and Feinberg, slightly corroborated by the two policemen. If the story which they told was believable, then a verdict in their favor could be sustained. The whole question turned on the credibility of these witnesses, and, under the circumstances disclosed, it was the duty of the court to most carefully explain to the jury the weight to be given to their testimony, not only because of the interest of two of them, the plaintiffs, but as to all three, in view of their criminal records, and, further, to call attention to the many contradictions which appeared in the stories they told.
Mrs. Weiss, who said she was thirty-one years old, could not remember how many times she had been arrested, nor the last time she had confessed her guilt, but did say that she had been an inmate of, and conducted, two bawdyhouses in Philadelphia under a different name, and was indicted as Lena Allen three times from November, 1922, to March, 1923, on charges of keeping a disorderly house, and found guilty. The husband, the other plaintiff, claimed to be thirty-three years of age,
On such testimony, with certain minor corroborating facts by the policemen, as above referred to, the case was submitted. Under these circumstances, it became the duty of the court most carefully to instruct the jury as to the weight to be given the evidence of the witnesses, and to call its attention specifically to the facts affecting their credibility.
In the charge, the jury was told that such testimony could be considered, but it was for the triers to say that “If you believe them you can waive their criminal records ......It is a collateral matter to be determined by you.” But the court went further, and, though not in words, yet in effect, withdrew the question of trustworthiness of the evidence from the jury. It said: “There has been a lot of unnecessary rattling of family skeletons, the purpose of which is to discredit their credibility. They have openly and frankly admitted the crimes they have been accused of, the times they were guilty, the times they have been sentenced, and the terms they have served. If they owed a debt to society they have paid [it] by their probationary period, or by their prison sentences. It does not matter if they have been the blackest criminals in the city, except as it affects their credibility, if you believe the testimony they gave on the witness stand you will be justified in giving them as much credence as though they were the whitest lilies ever painted.” The
The whole trend of - the charge was to belittle the defense. Even though no particular paragraph constitutes reversible error, yet where the tendency, as a whole, is to mislead, there is reversible error: Penna. Canal Co. v. Harris, 101 Pa. 80; Mastel v. Walker, 246 Pa. 65. The comments as to the effect of the prior convictions “could only subserve the purpose of creating a prejudice against the [defendant’s] case, and coming from the judge, who is always supposed to be impartial between litigants, it may have exercised a powerful influence upon the minds of the jury in producing the verdict which they rendered”: Stokes v. Miller, 10 W. N. C. 241, 246; Gerz v. Weber, 151 Pa. 396. Where the statements
The judgment is reversed with a venire facias de novo.