Aplnt., v. Munnell et al., 302 Pa. 78, 152 A. 840.
Inquiry was permitted as to the detailed facts and circumstances surrounding the activities of Ada B. Peters, both before and after the instrument was executed, as to all witnesses. In connection with two of the witnesses called by Leslie Warren Peters, an expression of opinion was not asked as to whether or not Ada B. Peters had mental capacity to execute the instrument. An objection was made to this question as to other witnesses by counsel for Blanche Marie Cleland on the basis that it called for a conclusion by persons who were not qualified to express an opinion, and the Court sustained the objection.
In view of the position taken by respective counsel in connection with the right of the witnesses to express an opinion, the Court, after reading the case of Patterson, Gdn., v. Snider et ux., 305 Pa. 272, 157 A. 612, called counsel into chambers and discussed the matter in detail. Counsel for Leslie Warren Peters was advised that he would be permitted to recall any or all of the witnesses who had explained the activities of Ada B. Peters, and ask the opinion of said witness or witnesses as to the mental capacity of Ada B. Peters. Counsel advised that all of said witnesses were not in the court room. The Court stated he could call the witnesses who were there and that the case would be continued, if he so desired, until the witnesses could be made available. Counsel advised he did not desire a continuance in order to secure the return of the witnesses which he had excused. It was then suggested by the Court that the witnesses who were available be recalled and an opportunity would be given to express their opinion. The Court would instruct the jury that if the witnesses who had been excused were recalled, they would express a similar opinion that 'mental capacity did not exist.'
Counsel then stated it would be satisfactory and agreeable to him if the Court would instruct the jury that all witnesses who had testified to the conduct and actions of Ada B. Peters, if recalled, would express an opinion that mental capacity did not exist to execute the instrument which changed the beneficiary from Leslie Warren Peters to Blanche Marie Cleland. This procedure was followed.
At the completion of the comment made to the jury, the Court asked counsel for each claimant whether or not there was any additional statement which they desired the Court to make, to which no answer was made. At the completion of the Court's general charge, counsel was again asked whether or not there was any additional statement which it was desired that the Court make to the jury, and at this time the answer was in the negative. Furthermore, counsel for Leslie Warren Peters took no general or specific exception to the Court's charge.
The important question before the jury was the mental capacity of Ada B. Peters at the time said instrument was executed. Since the witnesses were permitted to testify as to their observations, I do not see how any prejudice could have arisen to Leslie Warren Peters in view of the instructions given by the Court to the jury, which procedure was agreeable to counsel for Leslie Warren Peters.
Irregularities in the admission of evidence which is presented without objection is not a nullity or void of probative force. O'Boyle v. Harry Seitz & Sons, Aplnts., 105 Pa.Super. 135, 160 A. 145; Pataky v. Allen Motor Co., Aplnt., 100 Pa.Super. 343; Harrah v. Montour R. Co., 321 Pa. 526, 184 A. 666; Barlow v. Verrill, 88 N.H. 25, 183 A. 857, 104 A.L.R. 1130.
Counsel as a member of the Bar of this Court, in which he conducts his clients' cause, owes a duty to the Court to speak in a reliable, sincere and trustworthy manner. The Court accepted and relied on the statement of counsel as to his satisfaction and approval. It appears to me very irregular for counsel to now assign, as one of his reasons for a new trial, something to which he professionally and ethically had once agreed.
The fourth reason set forth by the defendant in the motion for a new trial is refused.
In connection with the fifth reason set forth in the motion for a new trial that 'the jury failed to follow the instructions of the Court and although exhibits were sent out with the jury with instructions to examine the same and make a comparison of the handwriting, the jury returned a verdict, as the defendant is advised, within thirty minutes which shows the jury failed to follow the instructions of the Court and to deliberate on the questions involved,' the Court has no right to inquire into the circumstances under which the jury in their deliberation reached a verdict.
The fifth reason set forth by the defendant in the motion for a new trial is refused.
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