Zugsmith v. Rosenblatt & Co.

15 Pa. Super. 296, 1900 Pa. Super. LEXIS 343

• Court: Superior Court of Pennsylvania
• Decided: November 19, 1900
• Docket: Appeal, No. 11
• Status: Published

Opinion

Per Curiam,

A clear and concise statement in untechnieal language by the trial judge, of the respective contentions of the parties, is of great aid to the jury, and often absolutely essential, even though it be not accompanied by a review and an analysis of the evidence adduced in support of them. This was all that was attempted in the portion of the charge quoted in the first assignment of error. The principal question in dispute was as to the plaintiff’s duties under the contract of employment for the year 1899. The learned judge was not rehearsing the evidence in detail but was simply stating the plaintiff’s claim with regard to that matter. The plaintiff may or may not have testified truthfully or consistently with the former part of his testimony, nevertheless it is a fact, that upon redirect examination, after the written contract had been exhibited to him, he swore that it was abrogated about January, 1897. ' It is also a fact that upon cross-examination he asserted that his duties under the contract for the year 1899 were as stated in the charge. We need not go further into detail. After a careful examination of the evidence it seems to us that the learned trial judge stated the claims of both parties with great fairness and substantial accuracy, and that the first assignment is without merit.

The second assignment alleges, in effect, that the court erred in not giving binding instructions in favor of the defendants. It would be a sufficient answer to say that the defendants made no request for such instructions, but we add that the court would not have been warranted in giving them, even if the request had been made. Beyond all question the case was for the jury. It was submitted to them in a clear, adequate and impartial charge to which but a single exception, and that without merit, was taken. Even if it be conceded that the action of the court in refusing a new trial is reviewable, and even if it were properly before us for review in the present instance, we would be compelled to say that there was no such manifest abuse of discretion as would justify us in disturbing the conclusion of the court below. See Reno v. Shellenberger, 8 Pa. Superior Ct. 436, and Halahan v. Cassidy, 12 Pa. Superior Ct. 227.

No exception having been taken to the admission of the evidence referred to in the third assignment of error it need not be further noticed.

It may be conceded, as the appellant’s counsel argues, that if the plaintiff’s stock speculations involved a breach of duty to his employers the fact that their general manager advised or encouraged him would not be a legal excuse. But that is not the point to which the evidence referred to in the fourth assignment was directed. The general manager had testified in behalf of the defendants that he had on more than one occasion censured the plaintiff for spending too much time at brokers’ offices; that he had told him that a man in his position had no right to speculate in stocks. This, according to his testimony, was one of the complaints he made to the plaintiff. As tending to rebut this testimony, not as an excuse or justification for his conduct, it was competent to adduce testimony to the effect that the witness advised the plaintiff as to his stock purchases. Even if there was technical error in the ruling, the evidence admitted under the offer was of such trifling importance that it could not have affected the result.

Judgment affirmed.