E.E. Yarbrough Turpentine Co. v. Taylor

• Decision Date: 18 April 1918
• Docket Number: 3 Div. 317
• Citation: 78 So. 812,201 Ala. 434
• Parties: E.E. YARBROUGH TURPENTINE CO. v. TAYLOR.
• Court: Alabama Supreme Court

78 So. 812

201 Ala. 434

E.E. YARBROUGH TURPENTINE CO. v. TAYLOR.

3 Div. 317

Supreme Court of Alabama

April 18, 1918

On Rehearing, May 30, 1918

Appeal from Circuit Court, Autauga County; Leon McCord, Judge.

Action by the E.E. Yarbrough Turpentine Company against Alice V Taylor for damages for the institution and prosecution of an injunction suit. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

See also, 73 So. 458.

W.A Gunter, of Montgomery, and Alexander & Tucker, of Prattville, for appellant.

A.A. Evans, of Montgomery, and Gipson & Booth, of Prattville, for appellee.

SOMERVILLE J.

It is a rule of universal recognition that "the mere fact that testimony has been given in the course of a former proceeding between the parties to a case on trial is no ground for admitting it in evidence. The witness must be produced under such circumstances just as much as one testifying de novo. If for any reason, however, it is impossible to produce the witness and have him testify in the subsequent proceeding the rule may be otherwise." 10 R.C.L. § 143, p. 966; Wisdom v. Reeves, 110 Ala. 418, 18 So. 13; Long v. Davis, 18 Ala. 801; Smith v. Keyser, 115 Ala. 455, 22 So. 149. In Doe v. McLoskey, 1 Ala. 708, 746, it was specifically ruled that depositions taken in a suit in chancery between the same parties are not proper evidence on the trial of an action at law, unless the witnesses are dead or cannot be produced at the trial. Upon considerations of convenience or necessity, the exception to the general rule was extended to certain cases where the witness who testified in the former case was or had become disqualified at common law by reason of having a pecuniary interest in the result of the suit, or from some other cause. Hence it was generally held that the defendant in an action for malicious prosecution could show what he had sworn to on the trial of the criminal charge. McNahan v. Armstrong, 2 St. & P. 151, 23 Am.Dec. 304. And for the same reason the defendant was allowed to show what his wife testified to before the committing magistrate. Gardner v. Randolph, 18 Ala. 685.

Referring to this rule, Mr. Greenleaf says:

"So, upon the trial of an action for malicious prosecution, in causing the plaintiff to be indicted, proof of the evidence given by the defendant on the trial of the indictment is said to be admissible in proof of probable cause." 1 Greenl. on Ev. § 352.

With the removal of the common-law disqualification of witnesses in civil cases because of their interest in the result of the suit (Code of 1852, § 2302; Code of 1907, § 4007), the reason for this exception to the rule of exclusion has disappeared, and hence the exception is no longer allowed.

In the case of Thompson v. Richardson, 96 Ala. 488, 11 So. 728, which was an action for malicious prosecution of a criminal charge before a justice of the peace, the trial judge allowed the plaintiff to show, by the justice of the peace himself, what testimony was before him on the trial. This court there said:

"The testimony of the witness Pringle as to the evidence introduced on the trial of Richardson before the justice of the peace should have been excluded. Conceding that the facts deposed to on that trial were admissible on this, on the issue of probable cause vel non, they should have been proved here by witnesses cognizant of them, and not by evidence that such witnesses deposed to them at another time and place and in another case and court. This was the merest hearsay; there being no question of impeachment, and apparently no purpose thereby to show conduct, testimony, and the like on the part of Thompson at that trial which would afford an inference of malice."

The language above quoted is equally applicable here, and the conclusion of prejudicial error in the admission of these depositions is clear; there being no proof offered that any of the witnesses so deposing could not be produced to testify ore tenus at this trial. It is to be observed, of course, that the exclusion is based upon the hearsay rule, and it is quite immaterial whether the testimony on the former trial was oral or written. If the hearsay rule were avoided, as it might contingently have been, then certainly the depositions would in this case have been the best evidence of the testimony to be proven; but that question is not here concerned.

Although charge 1 given for defendant may be misleading, especially to one not accustomed to discrimination in the use of legal terms, its giving cannot be pronounced reversible error. As said by Stone, J., in Jordan v. A.G.S.R.R. Co., 81 Ala. 220, 226, 8 So. 191, 192:

"Malice may be defined to be any 'indirect motive of wrong.' Any motive, not a bona fide purpose, or not associated with a bona fide purpose, of bringing a person to punishment as a violator of criminal law, is a malicious motive on the part of the person who acts under its influence."

And in the same case he said that "both the malicious motive and the absence of probable cause must coexist." If plaintiffs feared the jury might have interpreted the charge as meaning that defendant was not liable unless she was actuated by specific ill will, they should have requested an explanatory charge. As a matter of fact, the whole subject was made unmistakably clear to the jury by other instructions given to them.

If defendant's husband, G.W. Taylor, had instituted the injunction suit at his own discretion, but within the scope of his authority as agent for his wife, it would seem, on principle, that she would be legally responsible for his malice therein, if he was so actuated. See 2 C.J. 854. We are not advised, however, that defendant's husband instituted the injunction suit as her agent, and the instruction that his malice could not be visited upon his wife was proper on the facts of the...