Interstate Phonograph Co. v. Di Santo

Superior Court of Pennsylvania

Interstate Phonograph Co. v. Di Santo

81 Pa. Super. 97, 1923 Pa. Super. LEXIS 24

CourtSuperior Court of Pennsylvania

DecidedMarch 15, 1923

DocketAppeal, 7

StatusPublished

This text of 81 Pa. Super. 97 (Interstate Phonograph Co. v. Di Santo) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Interstate Phonograph Co. v. Di Santo, 81 Pa. Super. 97, 1923 Pa. Super. LEXIS 24 (Pa. Ct. App. 1923).

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Opinion

Opinion by

Henderson, J.,

The first assignment relates to the admission of evidence. The testimony referred to was given without pbj ection and no exception was taken thereto. The assign *99 ment therefore brings nothing before us for consideration.

The second assignment relates to the charge of the court to which only a general exception was taken. The complaint is that a portion of it1 was favorable to the plaintiff, and therefore not an impartial presentation of the case. Where no particular instructions are prayed for and the exception to the charge is general, appellate courts will not review matters not called to the attention of the trial court unless the errors are fundamental: Foley v. Phila. Rapid Transit Co., 240 Pa. 169; Lerch v. Hershey Transit Co., 255 Pa. 190. The complaint presented in the argument, is that in the part of the charge set forth in the assignment, the court suggested the inquiry whether the defendant had produced all the evidence in his possession relating to the question whether the property he received from the plaintiffs was to be sold on commission, or whether the transaction was an absolute purchase by him. The jury may have got the impression from that part of the charge that the court thought the plaintiffs’ defense if well founded could have been supported by more convincing evidence which was within his control, but this is not an objection to the charge as a whole, nor does it relate to the subject at the foundation of the case. In different parts of the charge the jury was instructed to consider the testimony of the plaintiff and defendant and to discover from the evidence what the relation of the parties was to each other with respect to the business under consideration. In a part of the charge the learned court said “let me caution you here that the evidence is for you. You are to take the testimony from the witnesses themselves and not from the court, and if your recollection should differ from ours, take your own recollection and not ours as to what the witnesses testified to.” The issue involved was not complicated. It was simply whether the goods, for the price of which the action was brought', were sold or were consigned to the defendant to be sold on the plaintiffs’ *100 account. The jury could not have failed to understand that they were to judge of the credibility of the witnesses and to decide what weight they should give to the testimony on one side or the other, for they were so instructed in unmistakable terms. We are not convinced that the assignment is well founded.

The judgment is affirmed.

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Opinion by

Henderson, J.,

The first assignment relates to the admission of evidence. The testimony referred to was given without pbj ection and no exception was taken thereto. The assign *99 ment therefore brings nothing before us for consideration.

The second assignment relates to the charge of the court to which only a general exception was taken. The complaint is that a portion of it1 was favorable to the plaintiff, and therefore not an impartial presentation of the case. Where no particular instructions are prayed for and the exception to the charge is general, appellate courts will not review matters not called to the attention of the trial court unless the errors are fundamental: Foley v. Phila. Rapid Transit Co., 240 Pa. 169; Lerch v. Hershey Transit Co., 255 Pa. 190. The complaint presented in the argument, is that in the part of the charge set forth in the assignment, the court suggested the inquiry whether the defendant had produced all the evidence in his possession relating to the question whether the property he received from the plaintiffs was to be sold on commission, or whether the transaction was an absolute purchase by him. The jury may have got the impression from that part of the charge that the court thought the plaintiffs’ defense if well founded could have been supported by more convincing evidence which was within his control, but this is not an objection to the charge as a whole, nor does it relate to the subject at the foundation of the case. In different parts of the charge the jury was instructed to consider the testimony of the plaintiff and defendant and to discover from the evidence what the relation of the parties was to each other with respect to the business under consideration. In a part of the charge the learned court said “let me caution you here that the evidence is for you. You are to take the testimony from the witnesses themselves and not from the court, and if your recollection should differ from ours, take your own recollection and not ours as to what the witnesses testified to.” The issue involved was not complicated. It was simply whether the goods, for the price of which the action was brought', were sold or were consigned to the defendant to be sold on the plaintiffs’ *100 account. The jury could not have failed to understand that they were to judge of the credibility of the witnesses and to decide what weight they should give to the testimony on one side or the other, for they were so instructed in unmistakable terms. We are not convinced that the assignment is well founded.

The judgment is affirmed.

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81 Pa. Super. 97, 1923 Pa. Super. LEXIS 24, Counsel Stack Legal Research, https://law.counselstack.com/opinion/interstate-phonograph-co-v-di-santo-pasuperct-1923.

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