When there is no case ready for trial in one room cases may be transferred to it from the other room of the same court. Rule 135. In actions of trespass for injury to person or property the plaintiff shall produce all his evidence upon the question of the defendant's liability, before he calls any witness to testify solely to the extent of the injury or damages. The defendant's attorney may then move for a nonsuit or for binding instructions, and upo n request the jury shall retire from the court room during the argument and consideration thereof. If the motion be granted a nonsuit or verdict shall be entered accordingly; if refused, the trial shall proceed. The trial judge may, however, allow witnesses to be called out of order if he deems it wise to do so. Rule 136. The party calling a witness shall, if required by the court, state briefly the point or points which it is proposed to establish by his testimony; except when a party to the action is called for cross-examination. Rule 137. The time to be occupied in examining a witness, and addressing the jury, shall be regulated by the trial judge. Rule 138. After the evidence is closed, only one attorney for each party may address the jury. If evidence has been received on behalf of each, the attorney of the party having the burden of proof shall sum up, stating explicitly the grounds upon which he relies. One attorney for the adverse party may then address the jury. Afterward the attorney who commenced may conclude, restricting himself to answering the argument of the adverse attorney. When testimony is produced by one side only, the attorney for that side shall be restricted to one address, and shall not be heard in reply. Withdrawing a Juror When the interest of a party is in danger of being sacrificed, the court can prevent injustice by withdrawing a juror. This is a power wisely vested in the court, and, should be liberally, but judiciously, exercised.340 The motion to withdraw a juror is addressed to the sound judicial discretion of the court, whose action is reviewable only for abuse of discretion. Any irrelevant or improper matter tending to prejudice or mislead the jury such as improper remarks of counsel or witnesses is ground for withdrawal of a juror.341 Points for Charge Points upon which the trial judge is requested to charge the jury shall be so framed that each may be fully and completely answered by a simple affirmation or negation. Attorneys shall hand a copy thereof to the trial judge and the adverse attorney before the close of the argument to the jury.342 340 Rentzheimer v. Bush, 2 Pa. 88 (1845). 341 Lopresti v. Sulkin, 49 Sup. 417 (1912); Surface v. Bentz, 228 Pa. 610 (1910). 342 Phila. Rule 139. A party has no standing to complain that his oral requests for instructions to the jury upon points of law were not answered fully and carefully, where he failed to present written requests in advance of the charge to the jury. Wally v. Clark, 263 Pa. 322 (1919). It is discretionary with the trial judge whether the jury shall be present when the points are being discussed. All that is required of him is to read the points he affirms and file the points refused together with his rulings and exceptions taken. Some judges read all the points to the jury together with the answer thereto, others read only those that they affirm.343 (Caption.) Plaintiff's (or Defendant's) points for Charge The learned trial judge is requested to charge the jury on behalf of the plaintiff (or defendant) as follows: (State each point in a separate, numbered paragraph, the last may be:) Under all the evidence and the pleadings in the case your verdict must be for the plaintiff (or defendant). Exceptions Attorney for UNDER STATUTE OF WESTMINISTER Since the statute of Westminister, it has been established practice for six hundred years to bring upon the record any part of the proceedings anterior to the verdict, except the calling of the jury, by bill of exception.344 At common law, a writ of error might be had, either for an error apparent on the record, or for an error in fact, but it lay not for an error in law not appearing on the record; and of course, where the plaintiff or defendant alleged anything ore tenus which was overruled by the judges, this could not be assigned for error, as it did not appear on the record, and not being an error in fact, but in law, the party was remediless. To remedy this evil, the statute 13 Edw. 1, ch. xxxi., gave the bill of exceptions to any one that impleaded before any of the justices, and who doth allege an exception, praying that the justices will allow it. The terms of this statute were very general; but a bill of exceptions under it has been described as founded on some objection in point of law to the opinion and direction of the court, either as to the competency of witnesses, the admissibility of evidence or the legal effect of it, or some matter of law arising upon facts not denied, in which either party is overruled by the court. If such bill be tendered, and the exceptions are truly stated in it, the judges ought to set their seal in testimony that such exceptions were taken at the trial; but if the bill contain matters false or untruly stated, or matters wherein the party was not overruled, the judges ought to refuse to affix their seals. A bill of exceptions is not to draw the whole matter into examination again; it is only 343 Cooper v. Altoona Construction Co., 53 Sup. 141 (1913). The trial judge is not bound to adopt the language of the points but may choose his own form of expression and if the subject is fully and correctly covered in the charge, there is no error. Hauvatty v. Dougherty, 71 Sup. 248. 344 Connel v. O'Neil, 54 Pa. 582 (1867). for a single point, and the truth of it can never be controverted after the bill is sealed. The nature of the thing requires that the exception should be reduced to writing when taken and disallowed, like a special verdict or a demurrer to evidence. It is not necessary, indeed, that the bill should be drawn up in form, but the substance must be reduced to writing while the thing is transacting. If the exception be not stated in writing, and tendered at the trial, it is waived, and the party shall not resort back to his exception after verdict against him. For perhaps if he had stood upon his exception, the other party need not have put the cause upon that point, but might have offered other testimony.3 345 UNDER ACT OF 1806 So much for the English statute, which contemplates a bill of exception as the only means of bringing the points of law ruled by an inferior court upon the record for purposes of review in a court of error. But on the 24th of February, 1806, our legislature, without superseding the bill of exceptions, provided still another practice for bringing legal opinions upon the record. That act provided that the judge who delivers the opinion of the court shall, if either party by himself or counsel requires it, "reduce the opinion so given with the reasons therefore to writing, and file the same same of record in the cause. '346 This act embraces charges delivered to juries as well as what are more technically called opinions, and under it any error in an opinion filed of record may be taken advantage of on a writ of error without a bill of exceptions.347 The act authorizes nothing which it does not enjoin. By its express terms the judge has authority to file his opinion at the request of a party desiring to have advantage from it,348 and to bring it properly on the record it must appear to have been filed by the judge at the express request of a party, at the trial. Hence, such request is made in writing filed. The party making the request may be called upon to specify what portions of the charge he asks to be reduced to writing,349 for there is nothing in this fact to authorize a request to reduce the whole charge to writing. Indeed in the absence of modern stenographic assistance this would be impossible.350 345 Wheeler v. Winn. 53 Pa. 122 (1866). A bill of exceptions to the charge of the court could be tendered at any time before the jury delivered their verdict in open court: Jones v. Insurance Co., I Binn. 38. A plaintiff in error could assign error in any opinion on any point material to the issue appearing on the bill of exceptions, although it was not particularized in stating the exceptions below: The Phoenix Ins. Co. v. Pratt, 2 Binn. 308. And it was said by Yeates, J., in Downing v. Baldwin, 1 S. & R. 304, that the statute 13 Edw. I gave the bill of exceptions in order that the points determined should be introduced into the record, and be decided on by a court of error. 346 Act February 24, 1806, § 25 (4 Sm. L. 276). 347 Wheeler v. Winn, 53 Pa. 122 (1866). 348 Lancaster v. DeNormandie, 1 Wh. 48 (1836). 349 Meese v. Lewis, 13 Pa. 384 (1850). 350 Reigart v. Ellmaker, 14 S. & R. 121 (1826). Charge of the Court, Points for Charge and Exceptions Thereto UNDER ACTS OF 1856 In 1856 two acts were passed which further developed the system of placing the charge of the court on the record of the case. The first of these acts provided that the president judges of the several courts of common pleas of this commonwealth, shall, in every case tried before them, respectively, upon request of any party or attorney concerned therein, reduce the whole opinion and charge of the court, as delivered to the jury, to writing, at the time of the delivery of the same, and shall forthwith file the same of record.351 This act met the objection that under the act of 1806 the whole charge was not placed of record. Two days after the passage of this act another was passed intended to remedy other inconveniences. It seems that some judges were found who would dodge the propositions of law commonly called points, which counsel submitted, or if they noticed them in their charge, it would be in such equivocal language as to mean one thing in the jury-box and another thing in the court of error, or else, if they stated them clearly, they would delay to file the charge to the injury of parties, the Act of 1806 prescribing no time for filing it. Wherefore it was enacted that, "whenever the parties or either of them shall request the court to charge the jury on particular points of law, drawn up in writing and handed to the court before the close of the argument to the jury, the judge who charges the jury shall reduce the answers to the points to writing, and read them to the jury before they retire from the bar to consider the verdict, and the said points and the answers thereto shall be filed immediately by the prothonotary, and become parts of the record of the case; and when exceptions are taken to the charge of the court in the manner now practiced, it shall be the duty of the judge who delivers the charge to file the same in writing with the prothonotary, before the rising of the court, or within thirty days thereafter, "352 Two things were provided for here the bringing upon the record points and answers, and the filing of the whole charge or such parts of it as are excepted to within a specified time. The old practice was not dispensed with but only added to, and now we have, (1), the bill of exceptions given by the statute of Edward, where those parts of the charge which are excepted to are to be drawn out into a bill of exceptions sealed and filed of record; (2), the whole charge filed under the Act of 1806, and the Act of April 15th, 1856, within the time prescribed by the Act of April 17th, 1856. It is the practice of some judges to add their signature or seal to the whole charge, but it is not necessary, for the signature sufficiently identifies it, and as it is not properly a bill of exceptions, but a statutory substitute for a bill, no seal is necessary, nor indeed proper. (3), Points and answers written out and filed, another statutory method of bringing the law of the case upon the record without a bill of exception.3 351 Act April 15, 1856, P. L. 337. 352 Act April 17, 1856, P. L. 353 Wheeler v. Winn. 53 Pa. 122 (1866). 353 When the charge was put on the record under these statutes, error might be assigned to any part of it, whether an exception had been taken to such part of it at the time of its delivery or not. A general exception to the charge was all that was necessary. This brought it upon the record, and it was then open to correction in every particular.354 UNDER ACTS OF 1877 AND 1887. The Acts of 1877355 provided that "whenever in the trial of a cause before any of the judges of the several courts of common pleas within this commonwealth, if any of the parties or their counsel shall request the court to charge the jury on particular points of law drawn up in writing and handed to the court before the close of the argument to the jury, the judge who charges the jury shall reduce the answers to the points to writing and read them to the jury before they retire from the bar to consider the verdict; and the said points and answers thereto shall be filed immediately by the court or judge... The charge and answers of the court to points in all cases, where filed, shall be part of the record for the purpose of assignment of errors. The Acts of 1887356 provided that "It shall be the duty of the said stenographer or stenographers to take full stenographic notes of the testimony in all proceedings in any trial of facts, together with the judge's charge, and together also with every ruling, order and remark of the judge relating to the case upon the trial, made in the presence and hearing of the jury in any stage of the proceedings, to which either party may except in the same manner and with the same effect as is now practiced in relation to the judge's charge. The only change brought about by the legislation subsequent to the Act of 1856 was that "when once on the record, the charge was open to attack in any part, and the appellant was at liberty to assign as many errors as he pleased." The proper practice since the Act of 1877 has been to except to the charge generally, before verdict, as was done before the passage of that act. The party excepting should at the same time request that the charge and answers to points be written out and filed by the stenographer. And when the charge has been thus filed by the judge's direction at the express request of a party made before verdict, and only when such direction affirmatively appears, the charge becomes part of the record and is assignable for error.358 11357 The settled construction of the statutes up to 1887 was that (1) there must be an exception noted to the charge before the verdict to enable a complaining party to successfully assign errors thereto afterwards. It is not necessary to specify the error at that time. But counsel must then indicate his dissent from the law as announced by the judge by having noted an exception to the charge. He then knows, if he ever knows, whether his contention is sustained 354 Rosenthal v. Ehrlicher, 154 Pa. 401 (1893). 355 Act March 24, 1877, P. L. 38. 356 Act May 24, 1887. P. L. 199, § 3. 357 Rosenthal v. Ehrlicher, 154 Pa. 401 (1893). 358 Connel v. O'Neill, 54 Pa. 582 (1867). |