Hillis v. Kessinger

• Decision Date: 09 November 1915
• Docket Number: 12672.
• Citation: 88 Wash. 15,152 P. 687
• Parties: HILLIS et ux. v. KESSINGER et ux.
• Court: Washington Supreme Court

152 P. 687

88 Wash. 15

HILLIS et ux. v. KESSINGER et ux.

No. 12672.

Supreme Court of Washington

November 9, 1915

Department 2. Appeal from Superior Court, Pierce County; Ernest M. Card Judge.

Action by John W. Hillis and wife against H. P. Kessinger and wife. Judgment for plaintiffs, and defendants appeal. Affirmed.

J. B Keener, of Tacoma, for appellants.

Warren H. Lewis, of Seattle, for respondents.

HOLCOMB J.

Appellants assign the following grounds of error: (1) The court erred in refusing to instruct a verdict for the appellants; (2) the court erred in denying appellants' motion for judgment notwithstanding the verdict; (3) the court erred in denying appellants' motion for a new trial. In argument it is stated by appellants that all the evidence covering these assignments of error is so intermingled that they can best be discussed together.

It is claimed that the only evidence introduced by the respondents in support of their allegations of conspiracy, misrepresentations, and fraud was that of one J W. Stout, whose testimony was taken by deposition in California, and was unsupported by any other testimony; that his whole testimony showed unfriendliness towards Mr Kessinger, which he admitted; that the testimony of respondent Hillis in regard to the transaction was unsupported by any other testimony produced or offered by respondents. With these contentions we do not agree. The record shows that the testimony of respondent Hillis alone, if the jury believed it in preference to the testimony of appellants and their witnesses, was sufficient to support their verdict. The testimony of Hillis was corroborated by the testimony of Stout in his deposition.

It is urged by appellants that, since Stout was not present in court at the trial, the jury who heard his testimony read had no opportunity to observe his conduct and demeanor while testifying, his interest, if any, in the result of the suit, his feeling, bias, or prejudice, if any is shown, his fairness or lack of fairness, and any other facts and circumstances appearing at the trial which will tend to credit or discredit his testimony; that therefore the court erred in giving the following instruction:

'The court instructs the jury to give to the testimony of a witness testifying by deposition the same credence and weight as if said witness were present and testified in open court before you.'

The deposition itself shows that the appellants were represented at the taking of the deposition, and conducted an extended cross-examination, whereby it was disclosed that the witness Stout was not a thoroughly indifferent witness, but was, to some extent, antagonistic to appellants, and disclosed his feeling and bias toward appellants whereby his fairness, or lack of fairness, and any and all other facts and circumstances appearing at the trial which would tend to credit or discredit him, saving and excepting only that the jury could not observe his demeanor while testifying, were clearly before the jury to govern them in considering the weight and credibility of his testimony. The instruction to the jury complained of manifestly meant no more than that the jury were to consider the testimony of the witness Stout, testifying out of court by a deposition, as the testimony of a witness in the trial, and that they might not disregard it, but were to give it such credence and weight as they would give to a witness testifying personally before them, but with the further qualifications, which the court gave in other instructions, that they were the sole and exclusive judges of the facts; that they were to reconcile the testimony of witnesses, if possible, on the hypothesis of the truth; that they were to take into consideration, in judging of the weight and credibility of the testimony, the conduct and demeanor of the witness while testifying, his interest, if any, in the result of the suit, his feeling bias, or prejudice, if any is shown; his fairness, or lack of fairness, and any other facts and circumstances appearing at the trial which will tend to credit or discredit the testimony of any witness in the case, and that if they believed that any witness knowingly and willfully testified falsely as to any material fact in the case, they were at liberty to entirely disregard such testimony, except in so far as the testimony was corroborated by other credible testimony, or by facts...