Warren v. Gabriel

| Ala. | Jun 15, 1874

PETERS, C. J.

The paramount question raised on this record is the right of a party introducing a witness to assail his veracity, without assigning some special reason therefor. It is certainly well settled, that when a party offers a witness in proof of his cause, he thereby, in general, represents him as worthy of belief, and the law will not permit him afterwards to impeach the general character of the witness for truth, or to impugn his credibility by general evidence tending to show him to be unworthy of belief. 1 Greenl. Ev. § 442. This principle has been applied by this court to a party who has introduced the testimony of his adversary, elicited on an examination upon interrogatories under the provisions of the Revised Code for the examination of parties by interrogatories. Rev. Code, §§ 2731-8; Wilson v. Maria, 21 Ala. 359" court="Ala." date_filed="1852-06-15" href="https://app.midpage.ai/document/wilson-v-maria-6504879?utm_source=webapp" opinion_id="6504879">21 Ala. 359. This is the case at bar. The first, second, and third charges given conform to this principle, as applied in the case above cited. They were, therefore, free from error. The explanatory charge, given in connection with them, rescued these charges from any imputation of misleading the jury. It instructed the jury, in effect, that a resort to this mode of obtaining evidence does not preclude the party from adducing other proof of the same facts, or from contradicting the evidence elicited on the examination by interrogatories.

2. I am not able to perceive any error in the fourth charge given. Fraud consists in acts, or omissions to act, which involve a breach of legal duty, trust, or confidence, which are injurious to the party complaining. Kennedy v. Kennedy, 2 Ala. 571. These acts or omissions must be established by proof, but very great latitude in the range of the evidence for this purpose is allowed. Snodgrass v. Br. Bank at Decatur, 25 Ala. 161" court="Ala." date_filed="1854-06-15" href="https://app.midpage.ai/document/snodgrass-v-branch-bank-at-decatur-6505353?utm_source=webapp" opinion_id="6505353">25 Ala. 161. It may be positive, or it may be circumstantial. 1 Greenl. Ev. § 13. But, whatever the form of the proof may be, it does not release a party, who insists on the existence of fraud, from the burden of establishing it by competent evidence. The proof is upon him who alleges a fact, not upon him who denies it. 1 Greenl. Ev. § 74. There was, then, no error in this charge.

The record shows no error hurtful to the appellants, and the judgment is affirmed.