Dalmas v. Kemble
| Decision Date | 24 May 1906 |
| Docket Number | 379 |
| Citation | 64 A. 559,215 Pa. 410 |
| Parties | Dalmas, Appellant, v. Kemble |
| Court | Pennsylvania Supreme Court |
Argued March 22, 1906
Appeal, No. 379, Jan. T., 1905, by plaintiff, from judgment of C.P. No. 3, Phila. Co., Sept. T., 1901, No. 1,339, for defendant non obstante veredicto in case of Louis Dalmas v Clay Kemble. Reversed.
Assumpsit for commissions. Before McCMICHAEL, J.
At the trial the jury returned a verdict for plaintiff for $5,000. On a motion for judgment non obstante veredicto under the Act of April 22, 1905, P.L. 286, the court entered judgment for the defendant non obstante veredicto.
Error assigned was the judgment of the court.
Judgment reversed and procedendo awarded.
V. Gilpin Robinson, with him John Creth Marsh, for appellant.
Bernard Gilpin, for appellee.
Before MITCHELL, C.J., FELL, BROWN, MESTREZAT and STEWART, JJ.
The defendant being desirous of procuring a loan applied to several brokers, among whom were plaintiff and one MacDonald, to get it for him. Both brokers negotiated with the United Security Company which finally made the loan, and the issue in the present case was who was the first and efficient procurer. The security company acted on a formal application filed by MacDonald, but plaintiff testified that the MacDonald negotiations were merely part of plaintiff's and there was other evidence to this effect, among which was the very significant fact that the trust company which paid a commission (with the borrower's consent as the jury have found), desiring to keep out of the contest, divided it, giving $700 to plaintiff and $300 to MacDonald. On the other hand, MacDonald testified that his negotiations were not only the successful ones, but were first in time and were independent. There was therefore a distinct conflict of oral testimony on the pivotal point in the case, and it was properly submitted to the jury in the following terms: "You will consider all those facts and make up your mind as to who brought these two parties together, as to who first started the negotiations; whether Mr. MacDonald started the negotiations before Mr. Dalmas took up the matter or not, as that is the important point." The jury found for the plaintiff.
Defendant moved for a new trial but during or after the argument of the rule, with leave and apparently at the suggestion of the court, moved for judgment non obstante veredicto under the Act of April 22, 1905, P.L. 286, which was subsequently entered by the court.
The act being so recent it is important that it should be examined closely, and its proper construction settled. Its terms are: "Whenever upon the trial of any issue, a point requesting binding instructions has been reserved or declined, the party presenting the point may . . . . move the court to have all the evidence taken upon the trial duly certified and filed, so as to become part of the record and for judgment non obstante veredicto upon the whole record; whereupon it shall be the duty of the court . . . . to enter such judgment as should have been entered upon that evidence."
This statute makes no radical innovation on the settled line of distinction between the powers of the court and the jury. It shows no intention to infringe, even if it could constitutionally do so, the province of the jury to pass upon the credibility of witnesses and the weight of oral testimony. The court has long had authority to direct a verdict for defendant when it was of opinion that the plaintiff, even if all his evidence be believed, has failed to make out his case. But this had to be done offhand at the trial and a mistake of the judge either way resulted in delay and expense. If he directed for defendant but on more deliberate examination or consideration came to the view that there was some evidence for the jury to pass upon, a new trial was the only remedy, while on the other hand if he refused a binding direction but later found that it should have been given, the same result followed, for...
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...the judgment must be entered upon the evidence in the record in the court below as it existed at the close of the trial. Dalmas v. Kemble, 215 Pa. 410, 64 A. 559. If upon consideration of the whole evidence 'it shall appear that a binding direction for either party would have been proper At......
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...was a request for binding instructions. As the supreme court of Pennsylvania pointed out, in construing the statute, in Dalmas v. Kemble, 215 Pa. 410, 64 Atl. 559, it was not intended in any way to impair and did not impair the function of the jury to deal with disputed questions of fact, b......
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...Pa. 370; Brown v. Pitcairn Borough, 47 Pa.Super. 413. The case was for the jury: Drislane v. Lehigh Valley R. R. Co., 236 Pa. 37; Dalmas v. Kemble, 215 Pa. 410; Duffy v. York Haven Water & Power Co., 233 Pa. Hoebel v. Ry. & Light Co., 233 Pa. 450; Squires v. Job, 50 Pa.Super. 289; Cobb v. I......
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