Lipshutz v. Lipshutz

Citations

• 274 Pa. 217
• 117 A. 796
• 1922 Pa. LEXIS 671

Syllabus

<p>Evidence — Witness—Interest—Moral interest — Charge of court.</p> <p>1. In an action -where the issue is as to the terms of a contract, and the plaintiff, his wife, and daughter swear to one version, and the four defendants to another, it is not reversible error for the court to say in the charge that the parties so far as the witnesses were concerned were pretty evenly balanced “three on the part of the plaintiff, all interested to a certain extent; legally, the plaintiff; morally, his wife and daughter.”</p> <p>2. The use of the word “morally,” did not improperly characterize the likely bias or favor of the wife and daughter in plaintiff’s behalf, and the difference between their interest and that of the defendants.</p> <p>Evidence — Burden of proof — Shifting of burden.</p> <p>8. The burden is on the party who asserts a fact to prove it.</p> <p>4. Where plaintiff gives competent proof of a fact and defendant, instead of negativing it directly, proposes to show another and distinct proposition which avoids the effect of it, the burden of proof shifts, and rests on defendant.</p> <p>Practice, C. P. — Charge—Reference to charge to jury in another case — Exception—Failure to object at trial — Waiver.</p> <p>5. Where a trial judge in his charge says, “the burden of proof, as I told you yesterday, rests upon the party who asserts a thing,” defendant cannot object on appeal to such an instruction on the ground that the reference was to an address to a jury in another case, where the counsel did not call the attention of the judge to his words at the time, and require him to amplify his remarks.</p> <p>6. Where a party desires explicit directions as to the burden of proof, in the light of his own theory of the case, he should present a point to the court, embracing his view.</p>