168 P. 601 | Or. | 1917
delivered the opinion of the court.
“Whenever a writing is shown to a witness, it may be inspected by the adverse party and if proved by the witness shall be read to the jury before his testimony is closed, or it shall not be read except on recalling the witness. ’ ’
The instant record does not disclose a situation delineated by the section quoted; hence, plaintiff as a witness could not insist on reading the exhibit as part of his testimony. It would have amounted to an argument of his case from the witness-box. Even if the exhibits had not been introduced in evidence the court had the right to regulate the order of proof and could postpone their introduction until a later period.
Under the fifth paragraph the plaintiff says he identified the volume, 46 L. R. A. (N. S.), containing the report alluded to above, and offered it in evidence. The court sustained defendant’s objection to the offer. For like reasons as before stated the ruling was correct.
“That would depend altogether on what was taking place there at the meeting. I shouldn’t think it would be necessary to attend all the meetings because there were many meetings in which this matter would not be up, but just what steps an active counsel might think was necessary would depend on his diligence and his activity and all those things to protect his client. He might do more than was necessary. He might think it was in order to protect his client. ’ ’
“"Why do you wander on that way, Mr. Shepherd, all that has been before the jury. * * lam not going to permit you to go over things again and again.”
“Go on and state it; if the jury can stand it I can.”
Exception was taken to the language of the court. The witness was allowed to make his explanation, hence the testimony went to the jury as he desired. In purport, his complaint is that the judge was not suave in manner. The utterance may have been somewhat unethical when considered from the standpoint of extreme refinement. Judges, however, are human beings, and as said by Mr. Chief Justice McBride in Schaller v. Pacific Face Brick Co., 70 Or. 557, 567 (139 Pac. 913), they
“Are called upon to rule in a moment upon the most delicate questions relating to the admission or rejec-' tion of testimony; and for us to weigh their decisions made under such circumstances by the technical rules of logic and law would résult in the reversal of half the cases tried by them. "We should rather adopt the advice of the poet, ‘Be to their faults a little blind, and to their virtues very kind,’ and reverse only for such errors as appear to have worked actual injustice. ’ ’
The general character of the exceptions and the voluminous record sent to this court indicate that generally the plaintiff pursued a very technical course calculated to grate upon the patience both of the court and of opposing counsel; and we cannot be surprised that as late in the trial as the rebuttal testimony a slight expression of impatience should escape from the lips of the presiding judge. If impolite or even erroneous it is not of sufficient importance to justify the disturbance of the verdict.
“ Plaintiff also asked the court to interpret the writing, to wit, Defendant’s Exhibit ‘C,’ and not to submit the same to the jury as a matter of fact, and plain*663 tiff was granted an exception to the refusal of the court to give the jury the legal effect of said writing and submit the same to the jury on the question of whether the same constituted a settlement of account. ’ ’
If the plaintiff had desired a particular instruction relating to the legal effect of the document, he should have framed it and submitted it to the court. Not having done so he cannot complain.
The plaintiff’s appeal is not well taken and the judgment must be affirmed.
Affirmed. Rehearing Denied.