80 Iowa 346 | Iowa | 1890
“ Q. What was said by Mr. Williams to you about ascertaining the amount that Mr. Guinn would take, or would settle for, and write him, or that he would write you ? (Objected to by defendant as incompetent, immaterial and irrelevant. Plaintiff ’ s counsel states to the court that he proposes to show that what was said was communicated to plaintiff by the witness; and objection overruled, and defendant excepts.) A. Well, Mr. Williams, when he was ready to leave Dean, stated to me — we got to talking about Isaac Guinn, that’s the man I referred him to — -it might possibly be we could compromise the matter. Then he gave me his address where to write him, and what I had done in case of a compromise; and when I saw Mr. Isaac Guinn he was just like the rest of the folks, — have it all or nothing. I believe that’s what I wrote Mr. Williams. I don’t remember that I communicated to Mr. Hardin Guinn what Mr. Williams said to me. I couldn’t say. I might possible have told him of it.
“By the court: I wish you would tell me your best recollection about it, Mr. Wolf, because I want to rule on it, — whether you did or didn’t tell plaintiff about it. A. I don’t think I told the old gentleman. I might possibly have spoken to Joseph Guinn about it.*349 I aint positive. I can’t say. I might possibly have told the old gentleman. I had other conversations with him in regard to this loss after Mr. Williams left.
‘ ‘ By the court: I think I had better say to the jury that the conversation between this witness and Mr. Williams, that he has detailed, about the possibility of a compromise, was not spoken in the presence or hearing of the plaintiff, and it is not yet shown that it was ever communicated to the plaintiff. I think it ought to go out, because it would not, so far as we now know, have influenced plaintiff at all about his action in delaying to give notice and proofs of loss. Unless the jury find that this conversation, or the substance of it, was •communicated to the plaintiff, they wont consider this witness’ evidence about the talk between him and Williams about the possible compromise.”
The complaint as to the ruling is that it finally leaves it to the jury to find if Wolf ever stated the fact as to Williams’ statements to the plaintiff. The court was of the opinion that the fact was not shown, and its conclusion was certainly correct. Wolf does not leave the chances of his having told plaintiff within the range of a probability, even. He merely gives it the • chances of a possibility. Such testimony could not be the basis for the finding of a fact in a legal proceeding. By the submission of the question, the jury might understand that there was testimony from which • it could find either way. . It will be seen from the record that the parties understood the testimony to be inadmissible except upon such a showing ; and the court, at the conclusion of the showing, should have followed its own judgment as to the facts, and excluded it. It is not claimed to us that, if error, it is not prejudicial.
Reversed.