Daniels v. Stock

• Decision Date: 10 March 1913
• Citation: 23 Colo.App. 529,130 P. 1031
• Parties: DANIELS et al. v. STOCK.
• Court: Colorado Court of Appeals

130 P. 1031

23 Colo.App. 529

DANIELS et al. v. STOCK.

Court of Appeals of Colorado

March 10, 1913

Appeal from District Court, Jefferson County; Charles McCall, Judge.

Action by Sarah A. Stock against William P. Daniels and others. From a judgment for plaintiff, defendants appeal. Reversed.

Redd, Stidger & Benson, of Denver, for appellants.

H.N Hawkins, of Denver, for appellee.

MORGAN J.

Appellee recovered a judgment on a verdict for $2,000 in the Jefferson county district court May 26, 1909, on account of an alleged wound on the front part of her leg between the knee and the ankle, which she claimed to have received while bathing in one of appellants' bathtubs in their public bathhouse at Idaho Springs, in this state, and caused, as she alleges, by appellants' negligence in permitting a rough-edged piece of copper, covered with dirt and verdigris, to protrude from the lining of the tub in such way as to inflict the wound which she alleges resulted in blood poisoning and the consequent injury complained of.

An examination of this appeal presents three predesignate issues of fact necessary to a logical discussion and determination of the legal issues involved: (1) Was the appellee injured as she alleged? (2) Was appellants' negligence the cause thereof? (3) Was the alleged damage the result? These three issues were determined by the jury in favor of the appellee but such determination was doubtless the result of errors of law that occurred at the trial, manifestly and materially affecting appellants' substantial rights, as that term is construed by the courts of other states as well as our own. Our Code provides that: "The court shall in every stage of an action disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the parties, and no judgment shall be reversed or affected by reason of such error or defect. *** Any error, defect or abuse of discretion manifestly and materially affecting the substantial rights of any party to the action may be received and corrected by the Supreme Court on appeal or writ of error, whether occurring before, at, or after the final judgment." Section 78, Mills' Ann.Code. It is not so difficult to ascertain that there was error in the proceedings as to determine whether such error manifestly and materially affected the substantial rights of the appellants.

The case was tried three times, resulting in two verdicts for appellee and one disagreement. On the last trial, certain testimony was read to the jury that had been given by a witness at a former trial and transcribed by the stenographer, who took it down; and the testimony of two witnesses was rejected tending to prove that the testimony so admitted and read was obtained by offering to give the witness an interest in whatever judgment was obtained. The testimony so admitted, and that which was rejected, bore materially upon the first two, and indirectly upon the third of the aforesaid issues of fact.

The rule is quite generally established, even in the absence of a statute, that the testimony of a witness at a former trial, transcribed by the court stenographer and reporter who took it down, may be proved in a subsequent trial between the same parties and involving the same issues, by introducing such report thereof, provided that the witness is dead, insane, beyond the jurisdiction of the court, or is sick and unable to testify, or cannot be found after diligent search, or appears to have been kept away by the adverse party. 1 Greenleaf on Ev. 234. But, as stated in Emerson v. Burnett, 11 Colo.App. 86, 90, 52 P. 752, 753: "The courts all agree that conditions may exist which would authorize the introduction of the former testimony of an absent witness, but they disagree as to the character of the conditions; and, while some hold that the fact that he is out of the jurisdiction is enough, it is the doctrine of others that the party desiring his testimony must first use due diligence to procure his deposition." The question here is concerning the diligence used to procure the attendance of the witness, as it was admitted that the evidence transcribed was correct in all respects, and no question arose as to taking her deposition. Such testimony is the best proof obtainable as to what a witness swore to on a former trial, but not so good in all respects as a deposition, as the witness, whose deposition is taken, either reads or has the deposition read over to him before he signs the same, and an opportunity is then given to correct any errors in taking it down or transcribing it.

The sufficiency of the showing to excuse the absence of the witness, and to admit the offered testimony, is largely within the discretion of the court; and it is only upon an abuse of such discretion that the appellate courts will interfere.

The diligence shown by the record here is that the witness, after she gave her testimony on the former trial, went to an adjoining county, and from there to another county, in this state; that appellee wrote to her prior to a former trial, and received a letter from her while she was in the latter place, and answered it, but received no reply; that appellee asked her attorney to cause a search to be made for the witness, but the attorney merely had a subpoena issued in the name the witness bore when she testified, and delivered it to the sheriff of Jefferson county, and no return was made thereupon; that appellee had never heard of the witness' being in any other place in the state, and that she inquired of the postmaster at the place where she wrote as above stated; it appeared also that the witness had married since her testimony was given, and was thereafter known by a different name. The court, in ruling upon the objection interposed to the insufficiency of this showing, said: "The Court: It appears that this witness has testified that, after making some search, she was unable to find this party in this county; that she in all probability is not in the county. I will overrule the objection." This ruling discloses a mistaken idea of what is required. The county is not the limit of the jurisdiction of the district court. A subpoena issued in the name the witness bore at the time, and directed to the sheriff of the county in which she lived when last heard from, might have reached the witness, so far as anything definite can be determined from the record. The admission of this testimony materially affected the substantial rights of the appellants, and the showing made to excuse her absence was insufficient. 5 Enc. of Ev. 936, 964; 1 Greenleaf on Ev. 234; Sou. Ry. Co. v. Bonner, 141 Ala. 517, 37 So. 702; Wabash Ry. Co. v. Miller, 158 Ind. 174, 61 N.E. 1005; Reynolds v. Fitzpatrick, 28 Mont. 170, 72 P. 510. We might not disturb the conclusion of the lower court, reached, within its discretion, that the showing was sufficient, were it not for the peculiar circumstances of this case in reference to the impeaching testimony rejected, and the consequent importance of the presence of the absent witness in order that she might be cross-examined and a foundation laid for the introduction of the impeaching testimony.

The testimony of the two witnesses that was offered and rejected tended to prove that the witness, whose former testimony was admitted, stated, prior to the date of her testimony at the former trial, that the appellee promised to give her $300 for testifying, if she won the suit. The testimony of the absent witness was that she saw the appellee in the bathtub after the wound had been inflicted, examined the protruding piece of copper on the bathtub, and later saw the swollen and inflamed condition of the appellee's leg. This was the only testimony, aside from the testimony of the appellee, tending to prove that the wound was inflicted as alleged. But if her testimony was obtained wholly or partly by reason of an agreement between her and the appellee that she was to receive part of whatever might be recovered, her testimony would have less weight, and the testimony of appellee would be materially affected by the damaging consequences of such an agreement. The only objection made to the introduction of the impeaching testimony was that it was incompetent, irrelevant, and immaterial, and for the reason that no ground for impeachment had been laid. It appeared, furthermore, that the impeaching testimony was not ascertained until after the trial at which the absent witness testified. There is no doubt that the evidence offered, impeaching the former witness on account of bias, interest, and corruption, was competent, material, and relevant; but its admissibility, without first having laid a foundation for it, is extremely questionable under the authorities. It could hardly be considered substantive evidence, but was in relation to an extrinsic matter impeaching the former witness on account of interest, bias, or corruption.

Extrinsic evidence, such as this, may always be admitted to prove the bias, interest or corruption of a former witness. Wigmore on Ev. §§ 948, 956, 966; Phenix Ins. Co. v. La Pointe, 118 Ill. 387, 8 N.E. 353.

The great weight of authority, however, on the question that a foundation must first be laid for all testimony of an impeaching character, is to the effect that some question must be asked, on cross -examination of the witness to be impeached, concerning the testimony to be offered of an impeaching character, so that the witness may have an opportunity to admit, deny, or explain such impeaching testimony. 1 Greenleaf on Ev. (4th Ed.) § 462; 3 Jones on Ev. § 848; Ryan v. People, 21 Colo. 119, 40 P. 775; Lerum v. Geving, 97 Minn. 269, 105 N.W. 967, 969.

However under the conditions here, and leaning toward the position taken...