Paul v. Kunz
| Decision Date | 26 March 1900 |
| Docket Number | 260 |
| Citation | 195 Pa. 207,45 A. 728 |
| Parties | Paul v. Kunz |
| Court | Pennsylvania Supreme Court |
Argued January 9, 1900
Appeal, No. 260, Jan. T., 1899, by defendant, from judgment of C.P. No. 4, Phila. Co., June T., 1894, No. 282, on verdict for plaintiff, in suit of Mickle C. Paul, trading as Paul Brothers, v. Anna Kunz. Reversed.
Issue to determine the validity of a judgment. Before ARNOLD, P.J.
At the trial it appeared that in 1889, a retail business was started in Philadelphia under the name of A. Kunz. Plaintiff testified that she had started this business with $1,000 which she had received from her father. The defendant contended that the business was really owned by the husband. In 1893, defendant's husband gave her a judgment note for $3,000 which was claimed to be in payment for the business. When George W. Snyder, a witness for plaintiff, was called the following question was asked him:
Objected to.
Defendant presented the following point:
The verdict must be for the defendant. Answer: Refused. [3]
Verdict and judgment for plaintiff. Defendant appealed.
Errors assigned were (1) rulings on evidence, quoting the bill of exceptions; (2) portion of the charge quoted in the opinion of the Supreme Court; (3) answer to defendant's point.
Alexander Simpson, Jr., with him Charles Knittel, for appellant. -- The question asked by appellees of George W. Snyder, was a leading question, and improperly allowed.
It may be conceded that ordinarily a mistake would not constitute reversible error, where, as here, the trial judge said that the husband not being indebted could legally give his wife the money. Unfortunately, however, the case was left to the jury to find for appellant solely in case they believed that the business was "started with the earnings of Peter Kunz," exactly as appellees argued, whereas appellant's claim was that it was started with her own money.
George E. Johnson, with him C. Wilfred Conard, for appellee. -- The improper allowance of a leading question is no ground for reversal: Ins. Co. v. Bair, 87 Pa. 124; Stephen on Evidence, art. 128, p. 224.
Considerable latitude and discretion must necessarily be left to the trial judge in commenting on the evidence and unless unfair and misleading the Supreme Court ought not to interfere: Com. v. Doughty, 139 Pa. 383; Jaffray & Co. v. Frothingham, 148 Pa. 213; Knapp v. Griffin, 140 Pa. 604.
Fraud is always a question for the jury alone: Craver v. Miller, 65 Pa. 456; McGrann v. R.R. Co., 111 Pa. 171; Heath v. Slocum, 115 Pa. 549; Cover v. Manaway, 115 Pa. 338; Patterson v. Dushane, 115 Pa. 334; Gates v. Watt, 127 Pa. 20; McKnight v. Bell, 135 Pa. 358; Lamb v. Irwin, 69 Pa. 436.
Where a witness goes upon the witness stand and swears positively to a fact, and that fact is not contradicted, it is established and there is nothing to submit to the jury: Grambs v. Lynch, 20 W.N.C. 376.
Before GREEN, C.J., McCOLLUM, MITCHELL, DEAN, FELL, BROWN and MESTREZAT, JJ.
This was a feigned issue to determine whether certain moneys realized on a sheriff's sale of personal property, belonged to Anna Kunz, the plaintiff in the execution under which it had been sold, or ought to be paid to Paul Brothers, attaching creditors of the defendant in the same, who claim that the execution issued by the appellant was fraudulent and void as to them. It is contended, on behalf of the appellant, that in 1889, she began to conduct business as a dealer in shoes, and continued the same until 1893 when she sold out to her husband, taking his judgment note for $3,000 in payment of the purchase money for the business and stock of goods sold to him. The contention of the appellees was, that the business had really always been that of Peter Kunz, the husband; that it had never been actually conducted and carried on by the appellant; that the judgment given to her by her husband for $3,000 was fraudulent, and that they, and not she, were entitled to the proceeds of the goods sold. Under the evidence, the question of fraud was fairly raised; but it ought to have been properly submitted to the jury for their determination, and no inaccurate statement of what had been proved should have been made by the learned trial judge. Whether...
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