66 W. Va. 288 | W. Va. | 1909
The plaintiff’s amended declaration in assumpsit contained the common counts, and a special count upon three notes made by S. B, Eathbone, Jr., the first, May 9, 1898, payable "twenty one months after date, to the order of Nimrod Wiseman, for $68.74; the second, November 15, 1899, payable ninety days after date, to E. E. Woodyard, for $219.00; the third, May 9, 1898, payable twenty one months after date, to the order of Nimrod Wiseman, for $106.51; and charged that the first and third of said notes, for a valuable consideration, had been endorsed, transferred and turned over by Wiseman to Wood-yard, and by him, for a good and valuable consideration, together with said second note, endorsed in blank, and delivered to plaintiff, and that she on the . day of February, 1900, had re-delivered said notes to the said Woodyard for collection and accounting of the proceeds to her; that Wood-yard had received and accepted said notes from her in_ that behalf, and then and there promised plaiñtiff to collect the same, and, when collected, to pay over th'e proceeds thereof
On the trial below the verdict and judgment was for the defendant. The points relied on are errors alleged to have been committed in the trial, and saved by numerous bills of exceptions.
Harry Sayre, son of and witness for plaintiff, was asked a number of questions relating to a note which plaintiff claimed had been executed by Mrs. Eathbone to Woodyard by way of security for the notes sued on. The court below sustained objections to these questions, and would not permit them to be answered. The record fails to show what the answers would have been, or what was intended to be proven by them. A rule many times declared by this Court, lastly perhaps in Delmar Oil Co. v. Bartlett, 62 W. Va. 700, 708, is that the refusal of the court below to permit a witness to answer, such questions will not, on a motion for a new trial, be available as prejudicial error, unless the expected answer be disclosed before the time of the ruling. Counsel, mindful of this rule, nevertheless insists that these questions show upon their face that the answers must have been material to the issues involved, and are therefore brought within some supposed exception to the general rule. No authority, establishing such an exception, is cited however, and we know of none. Even if the questions did indicate the materiality of - their answers, materiality is not the test. The test is whether the answers would have aided the complaining party, and their rejection was consequently prejudicial to his interests? We cannot in reviewing a judgment on writ of error assume that answers favorable to the exceptor would have been given. Delmar Oil Co. v. Bartlett, supra, point 5 of the syllabus.
Complaint is made that answers were not permitted to a number of questions, objected to, propounded to E. H. Wood-yard, administrator, on cross examination. The evident object of these questions was to cover the loss of the deposition of S. B. Eathbone, J'r., suppressed, by- showing certain sup-' posed admissions or declarations by Eathbone to the witness, of facts testified to by him in his deposition. Answers to these questions would clearly have been hearsay, and the evidence objectionable on this ground if no other. Eathbone was not a party to the suit; what he may have said or admitted to the witness would not have bound the estate of E. E. Woodyard.
Another point is the refusal of the court to permit the witness Woodyard to testify as to what, if anything, was shown by a record book kept by his father with reference to the note of Mrs. Eathbone referred to. This clearly would have been error. The book was the best evidence; was in existence, and, if it contained material evidence and the plaintiff desired it, the proper process of the court should have been employed to produce it. Its contents could not be proven in the way proposed.
Another point relates to the admission in evidence by defendant of two notes executed by the plaintiff in favor of E. E. Woodyard, in October and November, 1901, subsequent to the date of the alleged assignment by Woodyard to her of the
Another point made is, that the court below erred in not permitting Mrs. Sayre to answer a question propounded to her respecting items in a statement of account rendered by her to the administrator prior to the institution of the suit, offered by defendant, and admitted in evidence, as follows: “September 4, 1898. To notes I gave him to collect, $470.50;” “March 15, 1900. To notes I gave him to collect, $438.55.” She was asked whether there was an item in that statement representing or intended to represent the notes sued upon. Neither of the items represents the aggregate of the notes described in either the original or amended declaration. The first, item could not have included the second note described in the amended declaration, for that item antedates the date of the note. But the question was objectionable, if for no other reason, because it was leading. It suggested the answer. It had not even the virtue of the words, “whether or- not,” sometimes employed by counsel in an endeavor to render leading questions objectionable. State v. Taylor, 57 W. Va. 228. (50 S. E. 247); 5 Words and Phrases, 4040; 1 Wigmore on Ev., section 768. If the witness had been permitted to answer, how would her answer have enlightened the jury? The question of her.intent was not' material. It was a question for the court, or for the jury instructed by the court, to determine whether the declaration or any of the items in the account were supported by the evidence. We see no error in this ruling of the court.
The next, and the only meritorious, point of error argued is, that the court struck out the deposition of S. B. Bathbone, Jr., after it had been read to the jury, excepting certain parts, objected to, and excluded. We must first determine whether the evidence of the deponent was competent; for, if incompetent, the objection may be availed of here whether or not made in and acted upon by the court below. Woodville v. Woodville, 63 W. Va. 286. If competent, the objections thereto, at leasl upon the
The plaintiff affirms and the defendant denies the competency of the witness. Section 3945, Code 1906, provides that: “No party to any action, suit or proceeding, nor any person interested in the event thereof, nor any person from, through or under whom any such party or interested person derives any interest or title by assignment or otherwise, shall be examined as a witness in regard to any personal transaction or communication between such witness and a person at the time of such examination, deceased, insane .or lunatic, against the executor, administrator, heir at law, next of kin, assignee, legatee, devisee or survivor of such person, or the assignee or committee of such insane person or lunatic.” The witness was not a party. Is he cut out then because of interest; or because plaintiff derived any interest or title by assignment or otherwise, from him; or because his testimony relates wholly to personal transactions or communications had between him and the decedent?
First, is he interested ? Plaintiff’s evidence shows conclusively that deceased had authority to collect the notes from Eathbone; by the admission of the decedent, proven by Harry Sayre, Eathbone, through his wife, had fully paid the notes; and the testimony of Eathbone, excluded, was not only that he had paid his notes by the substitution of that of his wife, but that the latter note had been fully paid off and discharged to deceased in his life time. This left him without the slightest interest in the suit, or in the event thereof. Having fully paid the notes to Woodyard no action could thereafter be brought against him. Competency as to interest is tested, not by the time when a deposition is actually taken, but by the time when it. is offered in evidence. Seabright v. Seabright, 28 W. Va. 412; Vanscoy v. Stinchcomb, 29 W. Va. 263; 1 Wigmore on Ev., section 583. But, suppose he had not paid the notes, Eathbone was nevertheless competent. The test as to interest is not whether the witness may be interested in the question in issue, or may entertain wishes on the subject, or may even have occasion to test the same question in a future suit, but whether' the proceeding can be used as evidence for him in some pending or future suit. He must have an interest to be affected by the result of the suit, or by force of the adjudication. This was the common law rule,
Was he competent as a person from, through or under whom the plaintiff derived any interest or title by assignment or otherwise ? The notes involved were the notes of the witness, but the plaintiff derived no interest or title thereto by assignment or otherwise from him. Plaintiff claimed the notes by title derived, not from Bathbone, but through Wiseman, and by assignment from deceased. Bathbone’s notes represented property, but plaintiff could not be said to have acquired any interest or title by assignment or otherwise from him. Rank v. Grote, 110 N. Y. 12; Hooper v. Hooper, 32 W. Va. 526, 528, 529. We do not think, therefore, that his testimony was rightfully excluded on this ground.
But was the deposition rightfully suppressed because taken after the amended declaration was filed ? This was the ground of defendant’s motion; and so far as it related to matters not in issue at the time it was taken, it should have been excluded, if objection had been made at the proper time. But the amended declaration as to two of the notes is the same as the original. Was it proper then to exclude the deposition as a whole? We think not. The court had already admitted the deposition in evidence, except as to' that portion of it objected to, and defendant had gone to trial without objection to the deposition, except as noted at the time it was taken, and had permitted it to be read without other exception before interposing his motion to suppress. The motion was then too late. Electric Supply Co. v. Consolidated Light & Railway Co., 42 W. Va. 583; Goldsmith v. Goldsmith, 46 W. Va. 426; Edgell v. Smith, 50 W. Va. 349-354.
We are of opinion that the testimony was competent, so far as it related to the notes in issue at the time it was taken, was erroneously suppressed, and that the judgment below should be reversed, and plaintiff awarded a new trial.
Reversed.