Columbia Realty Inv. Co. v. Alameda Land Co.

• Decision Date: 08 January 1918
• Citation: 168 P. 440,87 Or. 277
• Parties: COLUMBIA REALTY INV. CO. v. ALAMEDA LAND CO.
• Court: Oregon Supreme Court

168 P. 440

87 Or. 277

COLUMBIA REALTY INV. CO. v. ALAMEDA LAND CO.

Supreme Court of Oregon

January 8, 1918

Department 2.

Appeal from Circuit Court, Multnomah County; Robert G. Morrow Judge.

On petition for rehearing. Rehearing denied.

For former opinion, see 168 P. 64.

Loyal H. McCarthy and J. Le Roy Smith, both of Portland for appellant. Fulton & Bowerman, of Portland, for respondent.

McCAMANT J.

We have given mature consideration to the exhaustive petition for a rehearing which plaintiff has filed. It is directed to so much of our opinion as sustains the action of the trial court in rejecting plaintiff's offer of proof on rebuttal. We held the offer was properly rejected, because no witness was on the stand to whom appropriate questions were asked, and also because the offer was couched in general terms and failed to specify the facts to be proved.

Plaintiff claims that these grounds of objection are untenable, because the offer in the lower court was objected to only on the general ground that the testimony offered was incompetent, irrelevant and immaterial. Many authorities are cited to the effect that, when testimony is admitted over this general objection, the appellate court will not review an assignment of error based thereon, unless the testimony is obviously inadmissible for any purpose. This principle is well established and is recognized by our own decisions. State v. Martin, 47 Or. 282, 292, 83 P. 849, 8 Ann Cas. 769; Hildebrand v. United Artisans, 50 Or. 159 91 P. 542; Ferrari v. Beaver Hill Coal Co., 54 Or. 210, 222, 94 P. 181, 95 P. 498, 102 P. 175, 1016. In the case at bar, however, the testimony was excluded. The presumption is that there was no error, and the burden therefore devolves on plaintiff to show that the testimony offered was admissible, and that plaintiff was prejudiced by its exclusion. In 1 Wigmore on Evidence, p. 59, the rule is stated thus:

"When a general objection is sustained by the trial court, it may be presumed that the reasons were apparent to all parties without statement; and, as the exception is here to be taken by the proponent of the evidence, it is fair to require him to make clear therein the basis of his claim for its admissibility, if he had rested on any specific ground; hence, the general objection will suffice, if on the face of the evidence and the rest of the case there appears to be any ground of objection which might have been valid (or, otherwise stated, if there is any purpose for which the evidence would conceivably be inadmissible)."

In 5 Jones on Evidence, 377, it is said:

"The rule that the objection should be specific has no application, however, where a general objection is sustained; in that case, the party against whom the ruling was made cannot urge that objection as too general."

The text quoted is supported by the following adjudications: Tooley v. Bacon, 70 N.Y. 34; Baldwin v. Threlkeld, 8 Ind. App. 312, 34 N.E. 851, 35 N.E. 841; Leach v. Dickerson, Adm'r, 14 Ind.App. 375, 42 N.E. 1031; Haas v. Cones Mfg. Co., 25 Ind.App. 469, 58 N.E. 499; Rosenberg v. Sheahan, 148 Wis. 92, 133 N.W. 645; Hurlbut v. Hall, 39 Neb. 889, 58 N.W. 538, 540; People v. Graham, 21 Cal. 261, 266; Spottiswood v. Weir, 80 Cal. 448, 22 P. 289. The industry of counsel for plaintiff has discovered some cases to the contrary, as McKinnon v. Johnson, 57 Fla. 120, 48 So. 910, and Rush v. French, 1 Ariz. 99, 25 P. 816, 824. These cases are out of harmony with the weight of authority, and we are forbidden by our statute from following them. Section 556, L. O. L., provides that a judgment "shall only be reversed or modified for errors substantially affecting the rights of the appellant." The rights of an appellant are not injuriously affected by the exclusion of inadmissible testimony, even though the objection reserved thereto is too general, or is otherwise inadequate.

Several additional authorities are cited to the effect that, when the trial court settles a bill of exceptions reciting offer of proof, it will be assumed on appeal that the witnesses were present and the evidence was properly offered; for example, Biddick v. Kobler, 110 Cal. 191, 196, 42 P. 578, and Tathwell v. Cedar Rapids, 114 Iowa, 180, 86 N.W. 291. We do not think that the certification of a bill of exceptions should be given the effect contended for. It is the practice in this state to incorporate in a bill of exceptions the objections to questions and the offers of proof in language taken from the reporter's transcript, and a trial court refusing so to do would be regarded as unfair to the unsuccessful litigant. The certification of the bill does not import a waiver by the trial court of the calling of witnesses in connection with an offer of proof. The rule announced on the subject in the former opinion is supported by the following additional authorities: Eschback v. Hurtt, 47 Md. 61, 67; Chicago Co. v. Carroll, 206 Ill. 318, 328, 329, 68 N.E. 1087; Stevens v. Newman, 68 Ill.App. 549, 552; Robinson v. State, 1 Lea (Tenn.) 673. The reasons for insisting on the calling of witnesses and propounding suitable questions are stated in the first two cases cited.

There can be no doubt that the offer of proof was properly rejected on the ground that it was general in terms and did not specify the evidence available. In Reynolds v. Continental Ins. Co., 36 Mich. 131, 144, Mr. Justice Graves says:

"In submitting propositions of proof, it is requisite that counsel should be distinct and clear. A proposition should embody the specific fact or facts in such connection, and in such terms as to be apprehended and ruled in the intended sense by the trial judge, and be examined and applied in the appellate court in the proper light to test the accuracy of the ruling if an adverse one. * * * The facts proposed ought to be indicated with sufficient clearness in regard to identity and sense to enable the court and adverse counsel to judge intelligently concerning their admissibility."

In 9 Enc. Evidence, 165, it is said:

"In making an offer to prove, it is requisite that counsel should be distinct and clear. The offer should embody the specific fact

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