Christy v. Smith

23 Vt. 663 | Vt. | 1851

The opinion of the court was delivered by

Kellogg, J.

Upon the trial in the court below, exceptions were taken to the admission of the depositions of Moses True, Jr., and Cyrus Dearborn, upon the ground that the deponents were interested in the event of the suit.

It is a general rule of the law of evidence, that persons, who have a direct, certain and immediate interest in the event of the suit, are incompetent witnesses. To this general rule, however, there are exceptions, — as in the case of agents, carriers, factors, brokers and other servants, who may be called. to prove all acts done by them within the scope of their employment. This exception is said to be foundej; in public convenience and necessity; and it is said, that it extends to every species of agency, by which business is transacted, unless the case is overborne by some other rule. 1 Greenl. Ev., § 416. This exception would seem to be broad enough to admit agents and servants to prove claims in favor of their principals, although the claims might be for injuries resulting from the negligence of the agent, or servant; and yet it is well settled, that in such cases they are incompetent, without a discharge. The same principle is applied to all cafes, where the testimony of the witness adduced by the plaintiff would discharge him from the plaintiff’s demand, by establishing it against the defendant. The witness, True, would seem to stand in that situation. He was indebted to the plaintiff in the sum of fifty dollars, and professes to have forwarded the amount by mail; and the plaintiff is seeking by this suit to recover the same of the defendant. The witness, then, has an interest in establishing the plaintiff’s claim against the defendant, for that would discharge the liability of the witness to the plaintiff. 1 Greenl. Ev., § 396, note 4. Emerton v. Andrews, 4 Mass. 653. Hodson v. Marshall, 7 C. & P. 16.

But it is claimed, that the interest of the witness was discharged by the plaintiff’s release, which was attached to the deposition. The release is in due form, and purports to have been executed by the plaintiff, and is broad enough in its terms to divest the interest of the witness. The fact, that the release is attached to the deposition by the witness, would seem to be sufficient evidence, that he had it in his possession at the time of making the deposition; for if subsequently acquired, it could not have been inclosed in it. Indeed, the release being directed to the witness and being in his possession is prima facie evidence, that it was duly delivered. It seems to us, that the only question in relation to the release, about which there could have been any controversy, was, whether it was executed by the plaintiff; and that matter does not appear to have been controverted at the trial. The original release was before the court, and had its execution been questioned, proof might then have been offered to establish it. But no such question appears to have been raised. The objection to the deposition was, that the deponent was interested. The release purported to discharge that interest; and if the party relied upon the want of proof of its due execution, we think he should have presented that question distinctly to the court. It is true, it appears by the bill of exceptions, after stating the offer of the deposition, the objection that the witness was interested, the admission of the testimony by the court, and exceptions by the defendant, “ no evidence was offered to prove the execution and delivery of the discharge, other than what is contained in the deposition.” Now, we think it will hardly do, to permit the party to lie by, simply objecting to the witness on the ground of' interest, when that interest is apparently removed, and no objection is taken at the time to the instrument by which it is removed, or its execution, and raise the objection for the first time by the bill of exceptions. The execution of the release not having been questioned at the trial, the release must be treated as received by consent, the same not having been objected to. 9 Cow. 140. Graham on New Trials 201.

This result renders it unnecessary to inquire, whether True was competent to prove the execution of the discharge. The case of Fay et al. v. Green, 1 Aik. 71, would seem to be an authority opposed to his competency.

The objection to the witness Dearborn is also founded upon his supposed interest in the suit. We are unable, however, to discover any disqualifying interest in this witness. He was in no manner connected with or interested in the business transactions of the plaintiff and True. Dearborn was the post master at Salisbury, in whose office the letter containing the money was deppsited by True, to be forwarded by mail. But this, we apprehend, did not render him an incompetent witness. The same objection might with equal propriety be urged to every post master upon the mail route between Salisbury and Waterbury. The letter is shown to have reached the latter office, and Dearborn is in no manner implicated in its loss. We cannot regard him as possessing that certain, direct and immediate interest in the event of the suit, which disqualifies the witness.

Nor can we perceive, that Moses Christy had any interest, which rendered him an incompetent witness. He was the agent of the plaintiff, but not, like True, indebted to the plaintiff, or liable for the fifty dollars; for there is nothing in the case showing that it ever came to his hands. There is no ground for the exclusion of this witness.

The' case shows, that the letter of True to Christy was received at the office of the defendant by due course of the mail; and there is no evidence tending to show, that the defendant delivered the letter to Christy, or to any other person. Indeed, the fact of the reception of the letter by the defendant seems not to have been controverted at the trial, but was treated as a matter, that was satisfactorily established, and doubtless the evidence was sufficient to warrant it.

Exception was taken to the charge given to the jury and the refusal of the court to charge as requested. It appears, that all the requests for particular instructions to the jury were complied with, but the second and sixth. The second required the court to instruct the jury, “ that, in order to establish the fact of want of ordinary diligence, the plaintiff must show some particular act of negligence in relation to the letter, and that the loss was the direct consequence of that particular negligence.” We do not think, the defendant was entitled to the particular charge requested. The declaration charges, in general terms, that the defendant “ carelessly and negligently lost the letter.” Had the plaintiff alleged some particular act of negligence, by which the loss of the letter was occasioned, he doubtless must have proved the particular act of negligence stated in his declaration. But he was not bound so to declare, but was at liberty to declare generally, that the loss was occasioned by the defendant’s carelessness and negligence. And under such a declaration, any general proof of negligence, tending to show, that the loss was occasioned thereby, and which satisfies the jury, that it was so occasioned, is sufficient to sustain the issue for the plaintiff. We are therefore of opinion, that the charge upon this point was unexceptionable.

The sixth request required instructions to be given to the jury, that the post master was not liable for the negligence of his deputies, unless he was guilty of negligence in appointing unsuitable persons. This request implies, that the defendant had deputies, who were duly appointed and legally authorized to discharge the duties of the office. But it is to be b.orne in mind, that the case does not disclose, that such was the fact; and' if there was no evidence of such fact, then the party surely was not entitled to the charge requested'. The case shows, “ that the persons occasionally employed by the defendant as assistants were not unsuitable persons to assist him in managing the post office; but it does not appear, that any of these persons were appointed and sworn as the- defendant’s assistants. This language, we think, will hardly warrant the conclusion, that the several persons, who were occasionally called in to aid the. post master, were the appointed and qualified assistants of the defendant; and if they were not, the' court was- fully justified in the instructions given to the jury. Upon the whole, we are inclined to the opinion,, that the charge was entirely unexceptionable.

The judgment of the- county court must therefore be affirmed.