Wakin v. Wakin, 119 Ark. 509

Wakin v. Wakin

119 Ark. 509 | Ark. | 1915

Lead Opinion

Wood, J.,

(1) (after stating the facts). Sam Hami-sey was 19 years of age. It must therefore be presumed that he had common discretion and understanding until the contrary appears. There is nothing in the record to show to the contrary. But his testimony does show that he had sufficient natural intelligence and had sufficient understanding to apprehend the nature and effect of an oath. When such is the case, a witness should be allowed to testify. See Flanagin v. State, 25 Ark. 92.

(2) The question of this witness’ competency was addressed largely to the discretion of the trial judge, and “in the absence of clear abuse or manifest error the judicial discretion is not reviewable.” Crosby v. State, 93 Ark. 158.

The presumption of competency was not 'overcome by an examination of the witness touching his sense of a moral responsibility to tell the truth'under oath, and nothing was elicited tending to show that the witness 'did not understand that he was under a moral as well as a legal obligation to tell the truth under oath. The court did not err therefore in admitting his testimony.

(3) The appellant contends that the court should have 'given a peremptory instruction in his favor. He contends that appellees were wholly disconnected with the contract which they alleged was broken and that a violation of the contract by Hamisey was not the proximate cause of any damage to them. In Mahoney v. Roberts, 86 Ark. 130, we held: “That persons who aid another to violate a contract -with a stranger, whether for the purpose of injuring the latter or for the purpose of obtaining some benefit for themselves at the latter’s expense, to his injury, are guilty of an actionable wrong and are liable for damages.”

The contract between Hamisey and the Kuhls and the State of Texas, evidenced by the bonds and the contract between the Kuhls and appellees were so interrelated that a violation of the obligations of the bond by a failure of Hamisey to make his appearance necessarily matured the liabilities of the appellees to the Kuhls under the mortgage. The testimony tended to show that the appellant and Hamisey knew that these contracts were made at the same time, and that they knew the purpose of both contracts. Therefore, when appellant induced Hamisey to violate the provisions of his bonds, as the jury were warranted in finding, this violation was the proximate cause of the damage which the appellees sustained by reason of the violation of such bond and for which, under the doctrine in Mahoney v. Roberts, supra, the appellant was liable. The instructions of the court were therefore correct.

We have considered the objection urged to certain remarks of counsel and find no reversible error in the ruling of the court concerning the same, and we do not deem them of sufficient importance to set forth in the opinion.

The judgment is correct and it is accordingly affirmed.

Dissenting Opinion

McCulloch, C. J.,

(dissenting). The majority of the judges hold appellants liable in this case upon the doctrine that a person who induces one of the parties to a contract to break it is liable to the other party for any damages resulting from such breach. That doctrine was first announced by one of the English courts in the case of Lumley v. Gye, 2 El. & Bl. 216, and has since been followed by a great many of the courts in England and in America. It was followed by this court in the case of Mahoney v. Roberts, 86 Ark. 130. It is, I think, pushing the doctrine too far to apply it to the facts of the present case. It has never 'been applied except in cases where one of the parties to an express contract was induced to break the contract. It is unsafe to carry it to the extent of holding that liability is created by inducing one to ;I>reak an implied contract, for there is always an implied ¡contract to discharge a legal duty, and to carry the doc-urine far enough to apply to contracts of that sort would fee too remote. There was no contract, either express or Implied, between appellees and Hamisey for the latter to break. Hamisey made no express contract with any one, «not even with the Kuhls, the sureties on his bond. If any contractual rights between the two existed, it was merely an implied contract. But the only contract which appel-lees entered into was with the Kuhls, and that was a personal one to indemnify the latter against loss on the bond which they executed for Hamisey’s appearance. There being no contract between appellees and Hamisey, the doctrine of the cases just referred to has no application.

Appellant’s alleged conduct in inducing Hamisey to run away did not cause a breach of any contract with ap-pellees. That conduct was entirely too remote to be the subject-matter of an action sounding in tort. One of the decisions of this court is, I think, in point on that question. In Gerson v. Slemons, 30 Ark. 50, this court held (quoting from syllabus) that “Where two persons contract with reference to an event that is contingent upon the act of a stranger, the latter can not be held liable for damages resulting from a failure of the contract, though it may have grown out of his omission to perform the act upon which the contingency depended.” Now, the application of that decision to the facts of the present case is this: Hamisey, by running away, did not render himself liable to the appellees, even though the loss resulted by his omission to appear according to the terms of ‘his bond. It follows, therefore, that if Hamisey himiself would not be liable, a fortiori, appellants would not be liable for inducing him to run away.

The question of remoteness is illustrated fay a decision of the Massachusetts court which I think is in point. Anthony v. Slaid, 11 Met. (Mass.) 290. The plaintiff in that case was the contractor for the support of the poor of a certain town and sought to recover damages from the defendant on the grounds that the latter’s wife (for whose acts he was responsible) had assaulted and injured one of the town paupers, thereby increasing the expenses of the plaintiff in performing his 'Contract. The court, in denying liability, said: “It is not fay means of any natural or legal relation between the plaintiff and the party injured, that the plaintiff sustains any ¡loss fay the act of the defendant’s wife, but fay means of the special contract fay which he had undertaken to support the town paupers. The damage is too remote and indirect. If such a principle he admitted, we do not ¡see why the consequence would not' follow, as stated in the argument for the defendants, that in a case where an assault is committed, or other injury is done to the person or property of a town pauper, or of an indigent person, who becomes a pauper, the town might maintain an action, with a per quod, for damages.”

Another reason why appellees are not entitled to. recover is that appellees were not required to make good their bond of indemnity fay paying the amount .thereof. Their damage accrued fay reason Of expenses incurred in bringing Hamisey back, so that there would be no liability on the bond. That state of the case renders the alleged wrongful act of appellants still more remote from plaintiff’s injury and still further lessens ground for liability.

I am unable to faring myself to the conclusion that there is any liability in this case, and I therefore record my dissent.