Butler v. Parrocha

• Decision Date: 09 June 1947
• Citation: 186 Va. 426,43 S.E.2d 1
• Parties: BUTLER et al. v. PARROCHA et al.
• Court: Virginia Supreme Court

43 S.E.2d 1

186 Va. 426

BUTLER et al.

v.PARROCHA et al.

Supreme Court of Appeals of Virginia.

June 9, 1947.

Appeal from Circuit Court, Middlesex County; J. Douglas Mitchell, Judge.

Action by Estelle Brown Parrocha and another against C. H. Butler and Calvin Butler to establish a boundary line. Judgment for the plaintiffs, and the defendants bring error.

Judgment reversed and final judgment for plaintiffs in error.

Before HOLT, C. J., and HUDGINS, GREGORY, BROWNING, EGGLESTON, SPRATLEY, and BUCHANAN, JJ.

W. M. Minter, of Mathews, Lewis Jones, of Urbanna, and Catesby G. Jones, of Gloucester, for plaintiffs in error.

Douglas S. Mitchell and John Paul Causey, both of West Point, for defendants in error.

HUDGINS, Justice.

This is a controversy over a boundary line. The jury rejected the contentions of both parties and by its verdict established a new boundary. From the judgment entered on the verdict, defendants were awarded this writ of error.

The boundary line in dispute is the line defined in the will of John Brim, probated November 23, 1887, dividing his farm between his grandson, John Edgar Broach, and his son, W. L. Brim. The pertinent provisions of this will are:

"Desiring to dispose of what property I have before my death, I will make this my last will.

"I give unto my son W. L. Brim the lot of land upon which he now resides during his life and at his death to be equally divided between his children.

"The said land is adjoining the land of Thomas Key and A. B. Evans. I want the line of said land to commence at the lower end of my farm and to run up on this side of the swamp to a cypress bush and thence up the bottom to a walnut tree and thence up said bottom to the main road.

"I give to my grandson John Edgar Broach all of the balance of my farm upon which I now reside and one yoke of oxen and ox cart and my chamber bed and bedstead and one cow, and the balance of my estate I wish to be equally divided between my children.

"As witness my hand and seal this 26 day of July, 1879.

"John, Brim"

The parties will be designated according to the positions they occupied in the trial court. Plaintiffs are now the ownersof that part of the John Brim farm devised to John Edgar Broach, and defendants are the owners of that part of said farm devised to W. L. Brim.

The plot, with surveyor's notations, exhibited below defines the boundary of the entire John Brim farm and the boundary line dividing the two tracts devised:

Plaintiffs contended in the trial court that the line designated on the plot A-B-E-H-D was the true boundary between the two tracts. Defendants contended in the trial court, and contend in this court, that the line A-B-C on the plot is the true boundary. The jury rejected both contentions and found the boundary line to be A-B-D. That part of the boundary line from A to B is not in dispute.

Defendants assign the following errors: (1) The action of the trial court in permit ting plaintiffs to call and cross-examine John Edgar Broach as an adverse witness under Code, sec. 6214; (2) the refusal of the trial court to admit testimony tending to prove the contents of a lost letter written by Broach to C. H. Butler, one of defendants, defining the boundary line as he understood it; and (3) the refusal of the trail court to set aside the verdict and enter judgment for defendants.

After the controversy over the boundary line had arisen, C. H. Butler, one of defendants, ascertained that J. Edgar Broach, who for more than 35 years had been living in Baltimore, knew the exact location of the line dividing plaintiffs' and defendants' tracts of land. Butler induced Broach to come to Middlesex county and point out this boundary on the ground. After Broach arrived in Middlesex and before he hadseen Butler, Mrs. Parrocha, one of plaintiffs, and W. H. Stiff, her surveyor, met Broach, and together they went over part of the boundary line in controversy. During this interview, plaintiffs claim that Broach made certain statements favorable to plaintiffs' theory of the case. Later, Broach went over the entire line with Butler. The attorney for defendants, in his opening statement to the jury, said that he expected to prove by J. Edgar Broach that the true boundary line between the two tracts was as shown on a plot filed as an exhibit with the grounds of defense.

Plaintiffs, before they had introduced any evidence, asked the court's permission to call J. Edgar Broach and cross-examine him as a party "having an adverse interest" under the provisions of Code, sec. 6214.¹The ruling of the court, granting this permission over the objection of defendants, constitutes the first assignment of error.

The record discloses that in 1920, when Broach sold the tract of land now owned by plaintiffs, he described it as the identical tract devised to him by the will of his grandfather and stated that the land was sold in gross and not by the acre. It thus appears that the witness had no financial interest in the outcome of the trial. He was not related by blood or marriage to any of the litigants—in fact, he seems to have been a stranger to all parties to the action until after this controversy arose.

The decision of the question turns on the application of the provisions of Code 1942 (Michie), sees. 6214 and 6215, as construed by this court.

Sections 6213 and 6214 were originally parts of one act, Acts 1865-6, ch. 21. Section 1 of this act made every litigant a competent witness although having an interest in the outcome of the litigation, and compelled such litigant, if called, to give evidence on behalf of any party to such action, with certain exceptions not pertinent. The same language used in sections 3 and 4 ² of chapter 21, Acts 1865-6, was adopted by the Code revisors of 1887 as sections 3350 and 3351, and incorporated by the Code revisors of 1919 in sections 6213 and 6214. It is clear that the intent of the legislature was, first, to compel a litigant, if called by another party to the cause, to testify in behalf of such other party; and, second, to permit any litigant to call and cross-examine any person "having an adverse interest" in the outcome of the litigation, whether or not a party. The only conclusion to be drawn from the language of the act and the context of the words, "having an adverse interest, " is that the legislature intended to include, first, a party to the litigation, and, second, a person, though not a party, who had a financial or other personal interest in the outcome. The legislature did not mean to include a party merely because his testimony was or would be adverse to the party calling him. "Adverse interest" was used in its common and accepted meaning and was not used synonymously with "adverse testimony." Dinger V. Friedman, 279 Pa. 8, 15, 123 A. 641.

Sections 3350 and 3351 were construed in Ferguson v. Daughtrey, 94 Va. 308, 315, 26 S.E. 822, 825, where it was held that "where a party seeking to impeach a transaction for fraud calls as witnesses the parties to the transaction, which, owing to the exigencies of the case, he is obliged to do, and proves by them facts from which the law infers fraud, or which are inconsistent with good faith, and outweigh and overcome their denial of the fraud, effect must be given to the facts so proved, and the transaction annulled."

The substance of this holding is that an admission of a party to the cause against his interest is substantive evidence and in the proper case may overcome positive testimony of the same party.

Section 3351 of the Code of 18S7 was amended by chapter 117 of the Acts of 1899-1900. The pertinent provision of this amendment was codified by the 1919 Code revisors as section 6215 and is as follows: "A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but he may, in case the witness shall in the opinion of the court prove adverse, by leave of the court, prove that he has made at other times a statement inconsistent with his present testimony, but before said last-mentioned proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement. Tn every such case the court, if requested by either party, shall instruct the jury not to consider the evidence of such inconsistent statements, except for the purpose of contradicting the witness."

It is to be noted that the words "adverse interest" are not used in this section, but the language is "in case the witness shall in the opinion of the court prove adverse." Here "adverse" is also used as an adjective to describe the word "witness, " meaning his testimony. The distinction between "adverse interest" and "adverse testimony" has not always been observed in the cases cited below construing these three sections.

The history of these statutes was reviewed at some length by Judge Keith in McCue's Case (McCue, v. Commonwealth), 103 Va. 870, 49 S.E. 623, and the provisions of the statutes were held to be applicable to criminal as well as civil cases. However, it will be noted that the trial court in McCue's Case instructed the jury that the evidence of inconsistent statements made by the son of the accused in that case was admitted for the sole purpose of enabling "the jury to judge whether or not the witness is entitled to credit."

Wigmore criticizes the limitations placed upon these provisions of the statutes and concludes that all limitations on this kind of evidence should be eliminated. III Wig-more on Evidence, 3 Ed, sec. 905.

The trend of Virginia decisions is to relax the strict rules of evidence in the interest of developing the whole truth on all issues. The general rule adopted gives great latitude to the discretion of the trial court as to the order in which witnesses may be called and the manner of their examination. The exercise of this discretion will not be disturbed unless it has been abused or...