Hightower v. Sholes

• Decision Date: 12 March 1917
• Docket Number: 230
• Citation: 193 S.W. 257,128 Ark. 88
• Parties: HIGHTOWER v. SHOLES
• Court: Arkansas Supreme Court

193 S.W. 257

128 Ark. 88

HIGHTOWER v. SHOLES

No. 230

Supreme Court of Arkansas

March 12, 1917

Appeal from Fulton Circuit Court; J. B. Baker, Judge; reversed.

Judgment reversed and cause remanded.

Ellis & Jones, for appellant.

1. It was error to permit plaintiff and Tom Skidmore to testify as to statements made to them by Denny Reed. This was hearsay merely, and inadmissible. 75 Ark. 463; 78 Id. 220; 86 Id. 448; 96 Id. 387; 99 Id 488; 107 Id. 280; 109 Id. 130; Hughes on Ev., pp. 51 to 56, 57.

2. It was error to require defendant to answer questions asked her in cross-examination over her objection. The matters were not covered by the direct examination. Hughes on Ev. 352; 40 Cyc 2501; 14 Pet. 461; 100 U.S. 625; 174 Id. 727; 90 Ark. 398, 405; 14 Id. 558, 563.

3. The letter read to the jury was improperly admitted. 4 Enc. Ev 808; 14 Id. 744; 105 Ark. 130.

Lehman Kay, for appellee.

1. The cases cited are not applicable. Statements of relevant facts made by persons identified in legal interest with a party to the record by reason of privity are competent evidence. 16 Cyc. 985, 996; 46 Ark. 378; 35 Id. 248; 79 Id. 414; 78 Id. 212; 43 Id. 307. Declarations of a deceased owner of personal property, etc., are admissible. 86 Ark. 488; 86 Id. 145; 16 Cyc. 985, 996.

2. But, if incompetent, appellant can not complain, for the error was invited. 86 Ark. 48; Ib. 145; 75 Id. 267; 66 Id. 588; 69 Id. 140; 88 Id. 138; 86 Id. 315. Appellant let "down the bars."

3. If inadmissible, it was not prejudicial, as the facts were proved by Mrs. Sholes. 75 Ark. 251; 103 Id. 87; 99 Id. 597.

4. They were admissible to contradict what she said. Kirby's Digest, § 3138.

5. The letter was competent. 85 Ark. 430.

6. The evidence sustains the verdict.

OPINION

SMITH, J.

This is a suit between two sisters over the distribution of the estate of Denny Reed, their father, and involves also a controversy over a balance of unpaid purchase money alleged to be due appellee, who was the plaintiff below, by appellant.

The only question we need now consider is the competency of the evidence by which appellee sought to show the amount of property owned by her father at the time of his death.

The estate which formed the subject-matter of this litigation was not a valuable one. Appellee alleged that her father owned, at the time of his death, $ 360 in money, and various notes, payable to his order, a list of which is set out in the complaint, and it was charged that appellant had appropriated this money, as well as the proceeds of several of the notes which she had collected, and that the uncollected notes were in appellant's possession and claimed by her individually.

The sheriff of the county was appointed administrator of Reed's estate, and, in a conversation with appellant about the assets of the intestate, was told that he had hardly left enough money to pay the funeral expenses. Appellant became a witness in her own behalf, and, upon her cross-examination, was compelled to make certain damaging admissions in regard to statements contained in a letter written by her to the administrator in regard to the amount of money in her father's possession at the time of his death, and her ownership of certain of the notes. She was not interrogated about any of these matters in her direct examination; and it is insisted that error was committed in permitting a cross-examination thereon, it being urged that, for this purpose, the witness should have been called by appellee and made her own witness. A witness named Skidmore was permitted, over appellant's objection, to testify that Reed told him, two years before his death, that he was worth between seven and eight hundred dollars, but that no one was present at the time but Reed and himself.

Appellee was asked, while upon the witness stand, how she knew how much property her father owned at the time of his death, and answered, "My father told me," and she was then asked, "How much did he say he had?" But an objection was sustained to this question, and no answer was given. Upon her cross-examination, she was asked, "How do you get your information as to how much money and notes your father owned, that you allege in your complaint he owned, at the time of his death," and answered, "My father told me." Whereupon, the court held that, since the witness had stated, in response to the question by appellant, the source of her information, she might also answer the question asked by appellee to which the objection had been sustained, and she then stated that her father told her he owned the money and notes set out in the complaint, and that the conversation occurred some time before his death.

It is argued by appellee that this question by appellant "threw down the bars," and rendered competent the testimony in regard to Reed's declarations concerning the amount of property owned by him. We can not agree, however, that such was its effect. Appellant had the right to ask the source of the information upon which appellee based a statement of fact. It is true the witness had already answered the question, but no objection was made to it when asked by appellant on account of the fact that it was being asked the second time. The answer to the question disclosed that the facts recited in the complaint were hearsay, and the development of this fact did not justify proof of the details of this hearsay evidence. But such evidence was admitted when the court permitted appellee to testify what her father had said, and in permitting Skidmore to testify concerning the statements alleged to have been made to him.

We think no error was committed in permitting appellee to cross-examine appellant upon questions which had formed no part of the subject-matter of the direct...