Standard Life & Accident Insurance v. Tinney

73 Miss. 726 | Miss. | 1896

Woods, J.,

delivered the opinion of the court.

It appears from the transcript that the motion of appellee to exclude from the jury certain parts of the deposition of the witness, Hester Davenport, was confined, in its exact terms, to “ what Mrs. Tinney told or showed the witness.” No complaint is made by appellant touching the court’s action in sustaining the prayer of the motion, but the first assignment of error filed here complains of supposed error on the part of the court in its action sustaining the -motion, because not only “ what Mrs. Tinney told or showed the witness ” was excluded, but facts to which the deponent herself was an eyewitness were also excluded, and appeal is made to the bill of exceptions to-sustain this contention;

Careful examination of this deposition impresses us, as it did the learned court below, as not showing, as facts within the knowledge of the witness, that Tinney choked his wife, and that he kicked his wife. On the contrary, we put upon the language of the deposition that construction which the court below gave it, and which we are bound to infer counsel on both sides gave it, at the time the motion was made and acted on. The witness did not say that she saw Tinney choke and kick his wife, as we understand the transcript, but rather that Mrs. Tinney came to the kitchen, where the witness was, informed her of the injuries inflicted upon her, and exhibited to the witness the evidences borne upon her body of her husband’s violence. That the able judge who tried the case below so understood the witness, is manifest from his ruling; that the counsel for appellee so understood her, also, is not to be doubted, and we are bound to infer, from the record before us, that, at the time, counsel for appellant likewise so understood it. It is hardly conceivable, if the court’s action went beyond the prayer of the motion and excluded facts to which the witness deposed as within her own knowledge, that the watchful and accomplished lawyers who -fepresented the appellant, should not have, then and there, pointed out, in some mode, to court and opposing counsel, that the ruling had gone beyond the motion, and that facts to which the witness deposed as of her own personal knowledge were being erroneously swept out with the hearsay evidence objected to. Yet nothing of that sort anywhere appears in the record before us.

In any event, however, the best that can be said of the bill ■of exceptions for the appellant is that it is not clear whether Hester Davenport was speaking of her personal knowledge or rehearsing what Mrs. Tinney had informed her of. But this will not help the contention of appellant, for it should be able "to show by the bill of exceptions, with clearness and not ambiguously, that Hester saw the choking and the kicking. The first assignment is, therefore, nonmaintainable.

The second and third assignments may be considered together, and may be disposed of generally, by a determination of the meaning of § 1761, code of 1892. This section makes provision for taking the testimony of a party to a suit who resides •out of the state by the adverse party by filing interrogatories to that end in the clerk’s office, and by giving a copy of such interrogatories, with notice of their filing, to the nonresident party, or his attorney or solicitor, and, by way of certainly securing such testimony, it is declared further that, if he fail to answer such interrogatories within a reasonable time, his suit shall be dismissed, if he be plaintiff or complainant, and if he be defendant, his plea or answer may be taken off the file and judgment by default entered, or the bill be taken as confessed. The testimony thus taken upon interrogatories by the party desiring to examine his nonresident adversary, is not in form a deposition, nor has it the technical marks of a deposition, but in substance and effect it is simply a deposition, and a deposition which a party is required to make on pain of dismissal of his suit, if he be the plaintiff, or judgment by default entered, if he be defendant, simply on his failure to answer the interrogatories within a reasonable time. It is incredible that the legislative purpose was to arm one party to a suit with such powers, enforceable with such penalty, merely to gratify the adversary’s desire to know whether the party might chance to know something useful to such adversary. It is far more and other than a simple paper which may be used or not by the party procuring it to be taken. It is not testimony belonging peculiarly and solely to the party taking it, and which may be used or not, as it may turn out to be helpful or hurtful to him,, but not at all to be used by the other party. It is an informal deposition, and to be treated as any other deposition. Either party was at liberty to introduce it, and the party at whose instance it was taken might contradict the interested party by properly laying the foundation so to do. In the case in hand, after the appellant had failed and refused to introduce the appellee’s deposition, she was entitled to offer it on her own behalf, and inasmuch as no foundation had been anywhere laid to contradict the statements made by her in the deposition, the impeaching evidence was properly excluded. Under this view of the case, it seems to be unnecessary to say anything further on the other assignments of error.

Affirmed.