Appeal, No. 113, March T., 1960, from judgment of Court of Common Pleas of Allegheny County, April T., 1956, No. 2812, in case of Hobart W. Hesse v. Charles J. Peckham et al. Judgment affirmed.
Thomas Park Shearer, with him Albert D. Brandon, and Oliver, Brandon & Shearer, for appellants.
Gilbert E. Morcroft, for appellee.
Before Jones, C.j., Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. CHIEF JUSTICE JONES.
In this action of assumpsit for the recovery of the value of turkeys which the plaintiff claimed to have sold and delivered to the defendants and which the defendants denied accepting or receiving, the jury returned a verdict for the plaintiff for the aggregate amount of his claims with interest from various specified dates. The defendants moved for a new trial which the court en banc refused. Judgment on the verdict was duly entered and the defendants have appealed. They complain of two matters allegedly occurring at trial, neither of which merits the description of assignment of error.
The appellants' first complaint is that the trial judge curtailed defendants' cross-examination of the plaintiff with respect to his "day book" which was identified as Defendants' Exhibit "Q". This allegation is patently contrary to the unmistakable record. The second complaint is that the defendants' Exhibit "Q", which had not been formally offered in evidence, was erroneously sent out with the jury along with all the other exhibits in the case. The triviality of this contention will at
once be apparent upon reference to the attending circumstances as disclosed by the record.
The plaintiff as a witness in his own behalf, testified in direct examination for 19 pages of the printed record. He was then uninterruptedly cross-examined by defendants' counsel for 41 pages and, after a brief hiatus for the testimony of two intervening witnesses, defendants' cross-examination of the plaintiff was resumed for another 15 pages. A considerable part of the cross-examination had to do with the plaintiff's "day book", which at that stage was referred to by defendants' counsel as the book with the "gray cover". In view of what undeniably transpired at the trial, it comes with poor grace from the defendants to assert that their cross-examination of the plaintiff respecting his "day book" was "curtailed" by the court. Actually, the trial judge overindulged defendants' counsel by permitting him to continue to the length he did with a repetitive and confusing cross-examination for the sole alleged purpose of testing the plaintiff's credibility. Just how useless the cross-examination was for the purpose ascribed is best indicated by the jury's verdict which fully accredited the plaintiff's testimony. The opinion for the court en banc justifiably regrets "that the lawyer who tried this case in behalf of defendants did not present the [new trial] motion, nor undertake to make the argument before the court." Had he done so, he could hardly have had the temerity to suggest that he had been restricted in interrogating the plaintiff.
The erroneous idea which appellants have striven to insinuate, namely, that their cross-examination of the plaintiff concerning his "day book" was restricted, rests upon no more than that defendants' counsel (when the plaintiff was called for limited ...