52 P. 1055 | Or. | 1898
delivered the opinion.
The action in this case is to recover upon three policies of insurance against loss or damage by fire, which were concurrent with the policies sued on in First National Bank of Portland v. Commercial Union Assurance Co. and Same v. Phœnix Assurance Co. (just decided). This case was tried before the others, but the issues presented by the pleadings are identical. Two questions are raised here, one of which is settled by the opinion in those cases. The other we will now dispose of.
One Henry Jacobs was called by the defendant as a witness in its behalf, and was asked whether he had not made a certain supposed statement in the presence of certain parties, at a given time and place, which lie denied. Thereafter it called Louis Prager, and put to him the following question: ‘ ‘ State if, on the twenty-first day of October last, in your store, in the city of Portland, you and Jacobs being together, you had a conversation with Jacobs in regard to the Wolf fire, in which Jacobs said he had applied a compound of alchohol and arsenic and some other material to the goods in the store of H. Wolf & Brother; that there was a scheme to set it off that night about twelve or half past twelve o’clock ; that it was set by a candle which had been so arranged or fixed as that it would burn down and come in contact with the inflammable material about that time of night;
The testimony which was sought to be, and which was, adduced through the witness, as referred to, was admittedly subject to the objections taken to its introduction ; and, if authority was wanted, the case of State v. Steeves, 29 Or. 103 (43 Pac. 947), is in point. But the objection was withdrawn, and thenceforth not insisted upon by counsel for plaintiff. However, upon cross-examination of the witness, the court of its own accord took occasion to notify counsel, as it was perfectly proper for it to do, that it would be compelled to instruct the jury that the evidence should not be considered for any purpose except as impeaching the witness Jacobs, and thereupon followed the comment of Judge McGinn. It does not appear whether counsel made any use of this testimony in presenting the case to the jury on final argument. When the court came to instruct, the objectionable testimony was withdrawn without any motion or request of plaintiff. The authorities seem to be uniform that a party who has permitted incompetent or irrelevant testimony to go to the jury without seasonable objection will not be entitled as of right to have it withdrawn by instructions when the case is ripe for the jury. There are two reasons which give support to the rule : One is that a party will not be permitted to lie by when a witness is called against him, and speculate upon the chances, and, when he finds the testimony to be unsatisfactory or has received and used it himself, to ask for its
Affirmed.