Danville Bank v. Waddill's Adm'r

• Decision Date: 06 February 1879
• Citation: 72 Va. 469
• Parties: DANVILLE BANK v. WADDILL'S adm'r.
• Court: Virginia Supreme Court

72 Va. 469

DANVILLE BANK v. WADDILL'S adm'r.

Supreme Court of Appeals of Virginia.

February 6, 1879

I. On an exception to the refusal of the court to set aside the verdict and grant a new trial on the ground that the verdict is contrary to the evidence, if the evidence and not the facts is certified, the appellate court will not reverse the judgment unless, after rejecting all the parol evidence of the exceptor, and giving full faith and credit to that of the adverse party, the decision of the court still appears to be wrong.

II. If an instruction is given to the jury without objection at the time, and no exception, or notice of exception, is taken or given before the verdict is rendered, the giving the instruction cannot be a ground for setting aside the verdict and granting a new trial of the cause.

III. In an action of assumpsit to recover a sum of money in gold which had been delivered by the plaintiff to the defendant for safe-keeping, the only plea in the case was non assumpsit. There was no question as to the delivery of the gold to the defendant, but the defence was that he had been robbed of it, and the effort of the plaintiff was to prove a fraudulent appropriation of it by the defendant conspiring with another person--HELD:

1. Evidence of the general character of the defendant by him is not admissible, and therefore the failure to produce it is not any ground for an inference unfavorable to his integrity.

2. The counsel for the plaintiff in his argument before the jury having relied on the fact that the defendant had introduced no proof of his character, after the argument was concluded the court properly, of its own motion, instructed the jury that the character of the defendant as a party to the suit was not involved in the issue to be tried; that he had no right to introduce proof of his general character, and that the jury should disregard all argument made before them by the plaintiff's counsel, based on the failure of the defendant to introduce such evidence.

IV. A new trial properly refused, which was asked based upon the affidavit of two of the jurors, that they had misapprehended the instruction of the court, and thought it required them to give full credit to the testimony of the defendant who had given his testimony in the case; the instruction given by the court having been accompanied with the further instruction at the instance of the plaintiff, that the plaintiff might introduce evidence to impeach the defendant's character as a witness.

V. Before evidence of the acts or declarations of one who is claimed to have been a conspirator with another to commit any offence, or actionable wrong, the judge must be satisfied that, apart from them, there are prima facie grounds for believing in the existence of the conspiracy.

VI. In such a case, after the conspiracy has been consummated, the common purpose carried fully into effect, no subsequent declarations of any of the conspirators, not made in the presence of the others, are admissible as evidence against the latter.

VII. If a person to whom a sum of money has been entrusted for safe-keeping is robbed of it, he is not liable to the person who entrusted him with it for the money.

This is the sequel of the case of the Danville Bank v Waddill, reported in 27 Gratt. 448. Waddill having died whilst the cause was pending in this court, on its return to the circuit court of Danville it was revived against his administrator with the will annexed. The case was assumpsit, and the only plea non assumpsit, and the object of the suit was to recover the sum of $4,865 in gold, which the bank had put into the hands of Waddill for safe-keeping in April, 1865. There was no dispute as to the fact that the gold had been delivered by the directors of the bank to Pleasant Waddill for safe-keeping, it being the time when the enemy were approaching Danville. The ground of defence was that he had been robbed of it, and the only controversy before the jury was, whether he had been robbed or whether he had fraudulently appropriated the money to his own use. And the plaintiff endeavored to establish the fraudulent appropriation by evidence of the possession of considerable quantities of gold, from 1865 down to 1868, by his son, John M. Waddill, and of what he did with it, and said about it.

On the trial of the cause the court excluded this evidence from the jury, and there was a verdict and judgment for the defendant. And the plaintiff obtained a writ of error and supersedeas.

Four bills of exception were taken in the case, but they all seem to have been taken after the verdict was rendered, and it does not appear that any notice of intention to except to the ruling of the court was given at the time, or at any time before the verdict.

The first exception is to the refusal of the court to grant the plaintiff a new trial on the ground that the verdict was contrary to the law and the evidence; and on the motion of the plaintiff the court certified the evidence. Waddill had given his evidence on the former trial, and his testimony as then given was proved on this, and there was the testimony of other witnesses which corroborated his statements.

The second exception relates to an instruction given to the jury. The plaintiff asked for a new trial on the ground that after the argument had been concluded, in which argument the counsel for the plaintiff relied upon the fact that the defendant had offered no proof of the character of Waddill before the retirement of the jury the court of its own motion instructed the jury that the character of Pleasant Waddill the original defendant in the cause, was, as a party to the suit, not involved in the issue to be tried, and that the defendant had no right to introduce proof of the general character of said Pleasant Waddill as a party to the suit originally; that the jury should disregard all argument made before them by the counsel for the plaintiff based upon the failure of the defendant to introduce before the jury testimony as to the general character of Pleasant Waddill as a party to the suit. But the court, at the request of the plaintiff's counsel, accompanied the instruction with the following explanation to the jury, to-wit: that as the said Pleasant Waddill had testified as a witness at a former trial, and as this testimony at said former trial was proved before the jury at the present trial by a witness who heard it given, the plaintiff had a right at the present trial to introduce evidence before the jury to impeach the said P. Waddill as a witness by proving his general character; the plaintiff, by counsel, insisting that this instruction given by the court of his own motion was erroneous and calculated to mislead the jury, moved the court because of said improper instructions to set aside the verdict and award a new trial; but the court overruled the motion.

After the foregoing motion had been overruled the plaintiff renewed the motion, and offered to read in support thereof the joint affidavit of two members of the jury which rendered said verdict. In their affidavit they say they were induced to believe that the law required the plaintiff to prove that Pleasant Waddill was not robbed; that the said Waddill having stated in his testimony that he was robbed, in consequence of what the court said to the jury about the argument of counsel as to the character of Waddill, we were bound to give full credit to Waddill's testimony; we therefore concurred in the verdict of the jury for the defendant, which we would not have done if we had believed that we were authorized to discredit Waddill's testimony. But the court refused to receive the said affidavit, or permit it to be read, because the jury had been instructed that evidence might have been offered to impeach the character of Waddill as a witness, and overruled the motion. This was the third exception.

The fourth exception is to the refusal of the court to admit the deposition of P. A. Hay, offered by the plaintiff. This witness makes various statements in reference to the possession of gold by John M. Waddill, the son of Pleasant Waddill, and of what John M. Waddill stated to the witness. After the refusal of the court in the first instance to admit the deposition, the plaintiffs withdrew their offer of said deposition and introduced evidence tending to show that Pleasant Waddill, who was a man of large estate, had given to his son, the said John M. Waddill, $1,700 of said gold subsequent to the 11th of April, 1865, viz: in 1866, 1867, and after having introduced said evidence the plaintiff again offered to introduce said deposition; to the introduction of which deposition as a whole, and to each question and answer thereof, the defendant objected. Whereupon the court examined said deposition, and struck from the same every question and answer asking or detailing any statements or admissions of said John M. Waddill. To the striking out which questions and answers the plaintiff objected; but the court overruled the objection; and the plaintiff excepted.

J. Alfred Jones and E. Barksdale, for the appellant.

Ould & Carrington, for the appellee.

BURKS J.

This is the second time this case has been before this court.

At the first trial of the issues on the pleas of non-assumpsit and the act of limitations, the only pleas as shown by the record ever filed in the cause, there was a verdict and judgment thereon for the defendant. That judgment, on writ of error, was reversed by this court on the single ground that the circuit court erred in refusing to give a proper instruction to the jury bearing on the act of limitations. No other question was made by the record or decided by this court. 27 Gratt. 448. While the cause was pending here the defendant died. After...