Wally v. Clark

• Decision Date: 04 January 1919
• Docket Number: 174
• Citation: 263 Pa. 322,106 A. 542
• Parties: Wally v. Clark, Appellant
• Court: Pennsylvania Supreme Court

106 A. 542

263 Pa. 322

Wally v. Clark, Appellant

No. 174

Supreme Court of Pennsylvania

January 4, 1919

Argued October 21, 1918

Appeal, No. 174, Oct. T., 1918, by defendant, from judgment of C.P. Allegheny Co., April T., 1917, No. 346, on verdict for plaintiff in case of P.L. Wally v. D. L. Clark. Affirmed.

Action in assumpsit for drilling an oil well. Before REID, J.

Verdict for plaintiff in the sum of $2,493.35.

The court refused a new trial. Defendant appealed.

Errors assigned were the charge of the court and answers to oral requests for instructions.

The assignments of error are all overruled and the judgment is affirmed.

A. M Simon, for appellant. -- Where a trial court misstates the evidence, even inadvertently upon a fact, even though it is not pivotal, it is ground for reversal: Paul v Kunz, 195 Pa. 207; Reel v. Martin, 12 Pa.Super. 340; Steinbrunner v. Pittsburgh, Etc., Co., 146 Pa. 504; Rumsey v. Shaw, 212 Pa. 576.

William A. Wilson, with him Horace J. Thomas, for appellee.

Before BROWN, C.J., FRAZER, WALLING, SIMPSON and FOX, JJ.

OPINION

MR. JUSTICE FOX

The appellant made a contract with the appellee to drill an oil well on his premises. The original contract price was the sum of $3,000. This contract having been performed and the drilling of the well having failed to produce results, there were subsequent negotiations and agreements between the parties looking to the further development of the oil well. Evidence both oral and written was produced by the parties relating to the arrangement between them. The claim of the plaintiff was $4,412.28 with interest. The appellant denied that he owed the appellee anything but alleged that he was entitled to recover the sum of $350 by way of set-off. The jury found a verdict for the appellee for $2,493.35.

The issue was purely a question of fact. It was largely dependent upon the testimony of plaintiff and defendant, although there was some written evidence which was also submitted for the consideration of the jury. The assignments of error relate wholly to the charge of the court, criticising certain excerpts therefrom and complaining that the charge as a whole was inadequate and misleading. No written requests to charge were presented to the court. After the learned judge of the court below had completed his charge certain oral requests were made that instructions be given and the answers to these requests are also included in the specifications of error.

The case was an unusually complicated one in some of its features by reason of the fact that there were contracts that were subsequently changed and enlarged by the oral agreement of the parties. This required an elaborate presentation of the facts by the court to the jury. The charge of the court occupies eighteen printed pages and this was required, in the view of the learned judge of the court below, in order to properly instruct the jury as to the respective theories of the plaintiff and defendant. After a careful study of the charge as a whole we are not persuaded that it can be properly said that it was either inadequate or misleading. On the contrary we feel that the court presented the entire controversy very fully and as clearly as it was possible to do under the circumstances. The court not only did this but at the conclusion of the charge invited counsel for the appellant to indicate whether the statement of the defense was comprehensive enough or whether counsel thought it ought to be elaborated. In response to this request the learned counsel for the appellant made two suggestions only which will be discussed later in connection with some of the other assignments. The learned judge of the court below reviewed the testimony of both plaintiff and defendant very fully. It is not essential that every detail of evidence shall be commented upon in thus presenting to the jury the respective theories of the parties to the litigation. In Commonwealth v. Kaiser, 184 Pa. 493, Mr. Justice MITCHELL, in speaking for this court, said:

"It is not possible, nor even desirable, that the judge should refer to and emphasize every item of evidence on both sides in a way that the counsel would consider adequate. In doing so he would run much risk of coming to speak as an advocate rather than a judge. Nor is he required to go over all the evidence on any particular point every time he refers to the point in the course of his charge. It is enough if he gives to the jury a general review of the evidence on the one side and the other, which fairly and adequately presents the respective contentions of the parties, with enough reference to the items of evidence to assist the jury in recalling it as a substantial whole and to appreciate its bearing."

We think what was there said is properly applicable to the case at bar. In the first, second and third assignments of error there are three excerpts from the charge which are the subject of criticism. They relate to a misstatement of the testimony of the witness Arbuckle by the court, which was to the effect that Arbuckle supported the testimony of Wally. After the charge was concluded the learned counsel for the appellant directed the attention of the court to the fact that Arbuckle did not testify in the way in which the...