* * * to limit, severely, the time within which motions for new trials may be filed. The reasons for the rule are to minimize the 'monstrous penalty' which results from the granting of a new trial; to avoid so far as possible the reexamination of facts once judicially determined; to save the time, trouble, and expense involved in reassembling juries, recalling witnesses and otherwise repeating the necessarily elaborate trial process.' See Freid v. McGrath, 76 U.S.APP.D.C. 388 F.2d 350; see Advisory Committee Recommendations, 5 F.R.D. 339, at page 347. 'It was suggested to the Committee that ten days was not a sufficient period for a motion for new trial, * * * especially in view of the fact that no enlargement of these periods is permitted. * * * The Committee, after mature consideration, * * * did not agree * * *.'
From the foregoing, it is apparent we are not free to consider plaintiff's reasons belatedly assigned. However, we do not see that plaintiff loses anything particularly because of the rules for the reason that as a matter of law there is no merit to plaintiff's contention.
It appears that plaintiff called as a witness one Dr. J. P. Harley, a practicing physician in Williamsport, and in connection with his testimony sought to introduce in evidence certain correspondence between Dr. Harley and one Dr. Theodore Klumpp, whereby the former sought unsuccessfully Dr. Klumpp's aid in persuading Dr. Cooper, who had examined plaintiff's decedent at the hospital prior to her death, toward 'withdrawing his support from the opposing side.' Dr. Harley wrote his letter on what purported to be the stationery of the Pennsylvania Medical Association and represented himself as 'councilor and trustee' of the Williamsport District.
It was the position of the plaintiff that Dr. Harley was an officer in the local Medical Society and that since the medical witnesses for the defendants were also members of the Medical Society, and further that the local society was affiliated with the Pennsylvania Medical Association, they would be bound by the action of Dr. Harley in attempting to prevent the appearance of a witness for the plaintiff.
Dr. Harley stated that the letter was written on his own initiative, R.P. 415-417; that the officers of the local Medical Society did not ask him to conduct himself in such a manner, R.P. 416; that no one suggested such writing, R.P. 417. Dr. Harley stated at R.P. 418, 'I was a councilor and trustee having certain prerogatives to act on my own initiative and responsibility, and I did it as was stated * * * on my own initiative and responsibility * * * that was my own idea.'
See also R.P. 418:
'Q. Did you have authority to write such a letter? A. Yes, sir.
'Q. From whom? A. As a councilor I have such authority, to do as I see fit in an individual case.
'Q. That is, without consulting anybody? A. So far as this letter is concerned, yes; I have that authority.'
None of the other witnesses had any knowledge whatsoever of the letters in question or of the attempt on the part of Dr. Harley to act as he did under the circumstances. It is clear from a reading of the Code of Ethics of the American Medical Association and of the Pennsylvania Medical Association that the conduct of Dr. Harley is not to be commended. Certainly we cannot stigmatize the other members of the medical profession for such action as was taken by Dr. Harley. There is no evidence whatsoever in the record to constitute Dr. Harley as the agent of the defendants for whose actions they would either individually or collectively be responsible.
Plaintiff in his brief cites as authority 8 U.S.C.A. § 47, 'Obstructing justice; intimidating party, witness or juror.' 8 Federal Cyclopedia, Section 3466, 'Misconduct of Parties, Counsel, Court or Third Parites', as well as a number of cases dealing with attempts to influence jurors or witnesses in litigation. We agree wholeheartedly with the cases cited by the plaintiff, as well as with the wisdom of the statutory provisions set forth. They are, however, under the circumstances and the facts in this case, not applicable.
Certainly there is nothing in the laws of Pennsylvania nor in the Federal laws which would make the conduct of Dr. Harley such as to constitute him on the facts in this record the agent of either of the defendants. See 2 Wigmore on Evidence, Section 278, 'Falsehood, Fraud, Fabrication and Suppression of Evidence, Briberty, Spoliation, and the like', particularly at page 123, 'Fabrication or Manufacture of Evidence, by forgery, bribery, subornation, and the like', citing opinions of the Federal and other Courts and particularly the case of McHugh v. McHugh, 186 Pa. 197, 40 A. 410, 41 L.R.A. 805, 65 Am.St.Rep. 849; see also Ibid., Section 280 at page 127, 'Same: Fraud in Separate Litigation; Fraud by Agents'; at page 128, 'Where the fraudulent act -- bribery, intimidation, spoliation, or the like -- has personally been committed by an agent or other third person, and not by the party-opponent himself, it is obvious that the act must be brought home to the partys connivance or sanction, express or implied, in order to use it as indicating any consciousness on his part of a weak cause.
'In thus connecting it with the party, it is to be noted, on the one hand, that no mere technical theory of agency will suffice to charge him; for it is not a question of legal liability, but of actual moral connivance. On the other hand no mere technical deficiencies of proof should be allowed to exonerate him; due regard to the common probabilities of experience should be paid * * * The relation between the two, together with common experience, should suffice to admit the fact, leaving to the defendant the opportunity to exculpate himself, as he easily could if innocent of any share. The common probabilities of such cases cannot be ignored; and it is better to admit such facts in the fair certainty that an innocent party can protect himself, than to exclude them by requiring such a degree of connecting proof as practically gives a general immunity to fraud and chicanery. Most Courts exhibit an undue tenderness for technicality in dealing with such evidence, and shut their eyes, with solemn pretence, to that which everyone must believe to be deserving of strong suspicion * * * No general rule seems to have found acceptance'.
We do not feel this is a matter of technicality where it is sought to be criminal conduct to others without very definite evidence of knowledge, connivance, participation or ratification. We find no such evidence in this case and for that reason we find no abuse of discretion on the part of the trial judge in refusing to receive the exhibits in evidence, after having heard the testimony of the several witnesses in regard to the exhibits in question.
In conclusion, we have examined the record completely, as well as the briefs of the several counsel. We find that this case, which continued over a number of days including several night sessions, was fairly tries.
At the conclusion of the charge of the court, plaintiff's counsel stated that they desired the record to note that they had no objection to the charge of the court. The case was fully and fairly tried without error
For the foregoing reasons, the plaintiff's motion for new trial and amended motion for new trial are denied.