Campbell v. Campbell

• Decision Date: 06 July 1909
• Parties: CAMPBELL v. CAMPBELL et al.
• Court: Rhode Island Supreme Court

73 A. 354

30 R.I. 63

CAMPBELL

v. CAMPBELL et al.

Supreme Court of Rhode Island.

July 6, 1909.

Exceptions from Superior Court, Providence and Bristol Counties; Charles F. Stearns, Judge.

Claim by Elisha J. Campbell against the estate of James Campbell, deceased, to which George E. Campbell and others filed objections. From an order of the superior court, on appeal from commissioners, denying complainant's motion for a new trial after verdict for less than the relief demanded, he brings exceptions. Sustained. Case remitted for new trial.

See, also, 29 R. I. 428, 71 Atl. 1058.

Green, Hinckley & Allen, for appellant.

James Harris and Irving Champlin, for appellees.

JOHNSON, J. The plaintiff filed in the municipal court in the city of Providence his claim against the estate of James Campbell, his father, late of said Providence, deceased, for $15,550. This claim was made up as follows: $10,000 due on a promissory note given for work and labor and money loaned by the plaintiff to his father; $4,050 due from his father for wages for two years and three months at $150 per month from April 1, 1902, to June 28, 1904; and $1,500 due for money loaned his father from April 1, 1902, to June 28, 1904. The estate having been declared insolvent and commissioners appointed, said claim of $15,550 was in part allowed by the commissioners to the extent of $2,700 for work and labor for two years and three months at the rate of $100 per month. From this allowance the plaintiff appealed to the superior court, where the jury awarded him a verdict for $3,024.

The plaintiff filed a motion for a new trial, which was denied, and the case is now before this court on the plaintiff's bill of exceptions; the exceptions being as follows: (1) To certain rulings of said justice at the trial of said action in respect to certain evidence, as shown on pages 133 and 252 of the transcript of testimony filed herewith. (2) To the ruling of said justice at the trial of said action not permitting a certain witness to testify, as shown on pages 602, 603, 610, 611, and 612 of said transcript of testimony filed herewith. (3) To the decision of said court denying the plaintiff's motion for a new trial, which motion was based upon the following grounds: (a) That said verdict and finding was against the law. (b) That said verdict and finding was against the evidence, and the weight thereof, in that said verdict and finding should have been for a much larger sum. (c) That said verdict and finding was against the evidence, and the weight thereof, in that the jury should have found, in addition to the amount they did, the amount of the note in said cause and interest thereon from the date of said note. (d) That said verdict and finding was against the law and the evidence, and the weight thereof. (e) That the amount of said verdict and finding was entirely inadequate and insufficient. (f) That the appellant had discovered new and material evidence, which he had not discovered at the time of the trial of said cause, and which he could not have discovered at said time by the exercise of reasonable care.

We think that the exception secondly set out in the bill, viz.: "To the ruling of said justice at the trial of said action not permitting a certain witness to testify, as shown on pages 602, 603, 610, 611, and 612 of said transcript of testimony filed herewith," should be first considered. To understand the exception, it is necessary to recur to page 610, where the witness was offered and the objection made. The record follows:

"Mr. Waterman: Mr. Bradford Campbell.

"Mr. Champlin: I shall have to object to the testimony of this witness. Mr. Waterman made an agreement with us and with the court last night, and I shall insist that that agreement is kept.

"Mr. Waterman: Now, if your honor please, at that time I said there might be one thing that I had overlooked in the testimony, in the haste of closing "up. There is one thing that I have overlooked, and that is the statement of Mrs. Rebecca Campbell as to Mr. Bradford Campbell coming up at one time and getting the signature to a note, and that is what I want to examine him about. I will limit my examination to that, although I would like to examine him as to Mr. James Campbell's condition during the time mentioned. We didn't have him here yesterday, because, as I said, I thought we had enough witnesses to fill the day up, and we did not go to undue expense to get him in.

"Mr. Champlin: This man is a son of Elisha J. Campbell, lives with him, and they could have had him here any time they chose. Last night your honor told Mr. Waterman that, unless he would name the witnesses, you would go ahead on this case last night, and you waited for him to name the witnesses. He insisted that he would put on whatever witnesses he could get. Your honor told him then you would go ahead with the trial last night unless he would name them, and you would hold him strictly to the agreement. He finally said that he would name three persons, and then eventually he got up and said he would take one of those persons out, and he would put on only those two persons, and he named those two persons. With that information we had from him, and with your honor's statement that you would hold him strictly to his agreement, we have made no preparation whatever to meet anything except the testimony of those two witnesses. We are not bound, under that agreement and under the ruling of your honor, to meet the testimony of this witness. He is going to contradict, perhaps, the testimony of Mrs. Rebecca Campbell. Mrs. Rebecca Campbell's deposition is in here. It would put us in the position to bring her in at the twelfth hour, and either make us go to the jury with an unfinished case, or ask your honor to take the deposition of Mrs. Rebecca Campbell.

"By the Court: I shall hold you to your agreement, Mr. Waterman.

"Mr. Waterman: Will your honor note my exception?

"By the Court: I note your exception."

As the court's ruling refers to and is based upon an agreement made by Mr. Waterman, the appellant's attorney, it becomes necessary to find out what the agreement was. Recurring to page 602 of the transscript of evidence, we find the following record:

"At 4:50 p. m. counsel for appellant asks that the trial of the case be adjourned until the following morning, and states that he has been unable to reach other witnesses whom he intends to procure in behalf of the appellant in rebuttal.

"By the Court: How many more witnesses are you going to call to-morrow?

"Mr. Waterman: We expect to get Mr. Collins, of course; Mr. Hawkins and Mr. Vial we intend to see; and that is all that I can say definitely about now.

"By the Court: I shall hold you pretty rigidly to your number of witnesses to-morrow, because I am ready to go on now, and I certainly— Of course, you understand the situation. I do not desire to handicap your case in any way, but it is a simple necessity on my part. I want a distinct understanding, before we separate to-night, the case is to be held down very close to-morrow morning on the number of witnesses. I don't think I am unfair in asking you to specify now exactly what you propose to do in the morning.

"Mr. Waterman: In order to expedite the matter, if your honor please— Of course, I will state that I didn't know the court was going to sit overtime to-night, and I thought we had enough testimony to fill up the time until adjournment, and did not like to ask business men, who would not be needed today, to come twice. In order to expedite the matter, I will agree to put on simply those that I know about—Mr. Collins and Mr. Hawkins. They will both testify as to his condition.

"By the Court: Now, then, gentlemen on the other side, you understand what you have to meet, and I shall expect you to go on with your case, too, as soon as they have finished theirs. On that condition, we will stop now till half-past 9 to-morrow morning."

It is well settled that the trial court, in the exercise of a sound and reasonable discretion, may limit the number of witnesses that may be allowed to testify on a given point. "If it were otherwise, the length of a trial could be protracted to an unreasonable and unwarrantable extent, and the time of the court consumed by the useless and unnecessary reiteration of testimony." Outcalt v. Johnston, 9 Colo. App. 519, 49 Pac. 1058. "But the discretion must be reasonably exercised, so as to deprive the parties of no material rights, and an abuse of it in this respect will be reversible error." Burhans v. Norwood Park, 138 Ill. 147, 27 N. E. 1088; Ragsdale v. Southern Ry. Co. (C. C.) 121 Fed. 924; Jones v. Glidewell, 53 Ark. 161, 13 S. W. 723, 7 L. R. A. 831; Huett v. Clark, 4 Colo. App. 231, 35 Pac. 671; Union National Bank v. Baldenwick, 45 Ill. 375; Mueller v. Rebhan, 94 Ill. 142; Mergentheim v. State, 107 Ind. 567, 8 N. E. 508; Butler v. State, 97 Ind. 378; Kesee v. Chicago, etc., R. Co., 30 Iowa, 78, 6 Am. Rep. 643; State v. Pratt County, 42 Kan. 641, 22 Pac. 722; Burt-Brabb Lumber Co. v. Crawford, 27 Ky. Law Rep. 798, 86 S. W. 702; Cushing v. Billings, 2 Cush. (Mass.) 158; State v. Whitton, 68 Mo. 91; Biester v. State, 65 Neb. 276, 91 N. W. 410; Anthony v. Smith, 4 Bosw. (N. Y.) 503; Powers v. McKenzie, 90 Tenn. 167, 16 S. W. 559; Meier v. Morgan, 82 Wis. 289, 52 N. W. 174, 33 Am. St. Rep. 39; Bunnell v. Butler, 23 Conn. 65; Nolton v. Moses, 3 Barb. (N. Y.) 31. "Where the point in dispute is collateral to the main issue, as in the case of impeaching or sustaining a witness, or in the case of impeaching or sustaining the character of a party whose character is not directly in issue, the trial court has wide discretion in the matter of limiting the number of witnesses." 8 Am. & Eng. Ann. Cas. 829, note.

In St. Louis R. Co. v. Aubuchon, 199 Mo. 352, 97 S. W. 807, 9 L. R. A. (N. S.) 426, 116 Am. St. Rep. 499, 8 Am. & Eng. Ann. Cas. 822, at page 823, the court says: "On collateral and incidental...