Klein v. Franklin Insurance Co.

• Decision Date: 01 January 1852
• Parties: Klein versus The Franklin Insurance Company.
• Court: Pennsylvania Supreme Court

Page 247

13 Pa. 247

Klein versus The Franklin Insurance Company.

Supreme Court of Pennsylvania.

CERTIFICATE from the Nisi Prius, Philadelphia.

G. W. Biddle and T. I. Wharton, for plaintiff in error. It is said, the papers were not read to the jury as evidence of matters

contained in them. But they could not be read at all to the jury: 3 Camp. 215; 3 Binn. 326; 2 Johns. 130; first, because the jury might be thus biassed, and secondly, because this issue was not for the jury, but the court. The conversations with the witness were not part of the res gestæ, and how could it properly be used as a test of his innocence of the charge? This is not within the excepted cases, allowing the declarations of a party to be used in his favor: 1 Phil. Ev. 182; 1 Pet. C. C. 20. The omission of the judge in his charge was material to the cause, and the verdict shows the jury were misled; it amounted, therefore, to a misdirection. The act of assembly creating the nisi prius, gives this court the power of reviewing the refusal of the judge to grant a new trial on points of law, which is very different from the ordinary rule on writs of error. Any other construction would deprive parties of one of the protections afforded in all other courts.

C. Fallon, contra. The issue raised on the question of preliminary proof, necessarily required the papers to be read for that purpose, and for that only were they received. They appear to have been read in 9 Johns. 196; 2 Id. 130; 7 Id. 315. The declarations and conduct of the defendant were admissible, as entirely inconsistent with the charge of fraud made against him: 1 East, P. C. 62; 1 Phil. Ev. 183. In the charge, the only ground of complaint is, an omission to give special instructions, which is never a ground for reversal.

The opinion of the Court was delivered by GIBSON, C. J.

The admission of the preliminary proofs to the jury, without restriction, is the only part of the case about which the mind can hesitate. Had these been read in disregard of the specific objection to them made here, it would have been error. The proper course was, to put them before the jury for purposes of authentication, leaving to the judge, who alone had a right to read them, his undoubted province to say whether they made a primâ facie case. But though one of the pleas had expressly put the furnishing of the preliminary proof in issue, the objection to the evidence of it was broad, general, and without bound or limit. According to Richardson v. Steward, 4 Binn. 198, where evidence is offered generally, and objected to generally, it is not error to admit it, if it is competent for any purpose. If the rule were otherwise, the defendant might have thrown the plaintiff on the one or the other horn of a very pretty dilemma. If the defendant did not establish the fact that the proper preliminary proof had been furnished, he would fail; and if he established it by the only evidence in his power, because it might happen to operate in a forbidden direction, he would fail. It is not disputed, that the documents were proper to be laid before the jury for identification. But the counsel objected to them even for that. The object was undoubtedly to exclude them not only from the jury, but from the court: for the defendant gave...