McCommon v. Johnson

• Decision Date: 06 October 1936
• Docket Number: 8-1937
• Citation: 123 Pa.Super. 581,187 A. 445
• Parties: McCommon v. Johnson, Appellant
• Court: Pennsylvania Superior Court

187 A. 445

123 Pa.Super. 581

McCommon v. Johnson, Appellant

No. 8-1937

Superior Court of Pennsylvania

October 6, 1936

Argued May 7, 1936

Appeal by defendant, from judgment of C. P. Mercer Co., Jan. T 1920, No. 57, in case of Margaret M. McCommon v. Virgil L Johnson.

Trespass. Before McLaughry, P. J.

The facts are stated in the opinion of the Superior Court.

Verdict and judgment for plaintiff. Defendant appealed.

Errors assigned, among others, were various rulings on evidence.

Judgment affirmed.

Louis J. Wiesen, with him Joseph W. Nelson, L. R. Rickard, J. A. Stranahan, Jr., W. G. Barker, Ira B. McNeal, Glen R. Law, J. W. McWilliams, John J. Donaldson, T. C. Whiteman, W. C. Pettit, Thos. H. Armstrong, Benj. Jarrett, Myron W. Jones, Emrys G. Francis, R. M. Gilkey and John V. Wherry, for appellant.

T. C. Cochran, for appellee.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker, James and Rhodes, JJ.

OPINION

James, J.

Plaintiff brought suit in trespass against the defendant, an attorney, to recover damages for alleged false representations by reason of which on January 19, 1914, she executed a quit claim deed of her dower interest in certain real estate. Suit was instituted on November 28, 1919 and the case tried on November 18, 1920 resulting in a verdict for plaintiff for the sum of $ 1,342.69 with interest from January 19, 1914. The record shows that on November 20, 1920, only a motion for judgment n. o. v. was filed; while in the typewritten motion asking that the evidence be certified and filed appears a written notation "for a new trial or." The record shows that the motion was argued on January 17, 1921, but owing to the papers being mislaid an opinion was not filed until December 30, 1935, which opinion dismissed the motions for a new trial and judgment n. o. v. In its opinion, the court regarded the motion for a new trial as having been properly made, although no specific reasons had been assigned, and examined the record for such errors as would justify the granting of a new trial and found none. All of defendant's points, except the point requesting binding instructions, had been affirmed at the trial. From the judgment entered on the verdict, defendant appealed to the Supreme Court, which appeal was later remitted to this court. Attached to the record sent to this court was a certificate by the then president judge. A motion to quash was made by the plaintiff. Pending the disposition of the motion to quash, the defendant filed a petition in this court in which it alleged that the record as certified to this court did not contain a certificate by the trial judge or by the official stenographer of the notes of testimony or the charge of the court, and an order was made by this court directing that the record be sent back to the Court of Common Pleas of Mercer County for such proceedings as might be appropriate. Testimony was taken before the president judge, from which it appears that the official stenographer had died on August 9, 1921, defendant's trial counsel had also died and the trial judge's term had expired on the first Monday of January, 1936. Diligent search was made for the original notes of the stenographer and the original copy, but they were unable to be found. A carbon copy was used by the trial judge in writing his opinion and is printed as part of the record of this appeal. Plaintiff does not question that the record as filed on this appeal correctly represents what occurred at the trial. Nor is it contended that any exhibits have been incorrectly printed. Undoubtedly, this record is not in compliance with the Act of May 11, 1911, P. L. 279, § 4, but the failure to obtain the proper certificates cannot be laid at the door of defendant. Every effort has been made by him to produce the entire record and the record as sent to this court has not been questioned. Under these circumstances, the motion to quash should not prevail: Waugaman v. Henry, 75 Pa.Super. 94.

The first question submitted by defendant is that the court erred in refusing to enter judgment n. o. v. On a motion for judgment n. o. v., the testimony should not only be read in the light most advantageous to the plaintiff all conflicts therein being resolved in her favor, but she must be given the benefit of every fact and inference of fact pertaining to the issue involved which may reasonably be deduced from the evidence.

Briefly stated the important facts are: Perry A. Uber died testate on February 12, 1909 seized of two dwellings in Sharon, Pa. and was survived by his widow, the plaintiff, and six children. Defendant as decedent's executor, on April 17, 1909, sold the real estate at public sale to Frank Routman subject to the dower interest of the widow who elected to take against her husband's will. On August 4, 1909, the widow, by other counsel, filed a bill in equity against Routman for an accounting and a partition of her dower interest, to which a demurrer was filed. By reason of certain delays, unimportant here, a decision on the demurrer was not filed until January 12, 1914. Counsel for the widow, on account of ill health, had been absent from June 1912 to May 1914, with the exception of from September 6, 1913 to November 4, 1913 during which time plaintiff consulted with him. Sometime in December defendant contacted Sheridan Uber, a half-brother of the decedent, and requested him to bring plaintiff to defendant's office at Mercer, which he did the early part of January 1914. For the efforts made by Sheridan Uber, he was allowed a credit of $ 20 upon a debt he owed defendant. On January 8, 1914, defendant wrote a letter to plaintiff enclosing a quit claim deed to Frank Routman for her interest in the premises which would net her about $ 1,000 after paying defendant's fees, costs, and Routman's attorney. On January 19, 1914, plaintiff and her husband, H. B. McCommon, and Sheridan Uber came to defendant's office. Accompanied by defendant, all the parties went to the courthouse at Mercer, Pa., to see if a decision had been handed down in the equity case. Plaintiff and her husband remained in the corridor while defendant and Uber went into the prothonotary's office. Defendant then examined a book and told Uber that the case had been decided against the plaintiff. They returned to the corridor where defendant stated to plaintiff that the case had been decided against her, but that if she "would settle right away before Routman finds out," she could still get the $ 1,000. Both Uber and plaintiff's husband then advised plaintiff to take the amount and settle. The deed was executed by plaintiff and her husband, both signed the discontinuance docket and plaintiff received defendant's personal check for $ 1,000. Plaintiff stated that she would not have executed the deed if defendant had not represented the decision in the equity case had been against her. The following day she learned that her case had been decided in her favor. We are not unmindful that defendant's testimony was in direct contradiction of those facts from which fraud could be inferred and that the price she received was inadequate, but the credibility of the parties was a question for the jury. If plaintiff's testimony was to be believed, she parted with her dower interest on the strength of the false representations for less than its true value and this was properly a question for the jury.

Under the second and third questions raised by defendant, which relate to errors in the charge of the court, plaintiff earnestly and ably argues that they should not be considered because the charge of the court and the points and answers thereto were never made part of the record and that the reasons for a new trial were not filed in the court below. We have already adverted to the failure of the stenographer to attach the certificate to the transcript of the testimony and the charge of the court, and need not further discuss it. The court below fully considered the motion for a new trial although no specific reasons were assigned and we have concluded, in view of the many unusual circumstances that this record presents, to pass upon the reasons assigned for a new trial.

The second question relates to the refusal of the trial judge to permit defendant to prove his general reputation among the members of the Bar of Mercer County for being an upright, honorable, truthful and faithful practitioner. This question is fully answered in the opinion of Justice Clark in Insurance Co. v. Hazen, 110 Pa. 530, 537, 1 A. 605, as follows: ". . . . It seems to be well settled in Pennsylvania that in civil cases, evidence of general character is not admissible, unless from the nature of the action character is directly drawn in issue, as in libel or slander and seduction. Putting character in issue, as was said in Porter v. Seiler, 23 Pa. 424, is a technical expression which does not signify merely that personal reputation is incidently involved in the consequences or results of the action, but that the action in its nature directly involves the question of character.

"In Nash v. Gilkeson, 5 S. and R. 352, evidence of the defendant's good character was rejected although actual fraud was imputed to him in the evidence of the plaintiff and in Anderson v. Long, 10 S. and R. 54, the plaintiff was refused permission to show good character although the defendant set up his fraud by way of defence. In Porter v. Seiler, 23 Pa. 424, an action of trespass was brought to recover damages for an injury wilfully inflicted with a knife, and evidence of the defendant's good character, as a peaceable man was excluded when offered for the purpose of rebutting malice. So in Zitzer v. Merkel, 24 Pa....