Lenoir Car Co. v. Smith

• Decision Date: 24 November 1897
• Citation: 42 S.W. 879,100 Tenn. 127
• Parties: LENOIR CAR CO. v. SMITH.
• Court: Tennessee Supreme Court

42 S.W. 879

100 Tenn. 127

LENOIR CAR CO. v. SMITH.

Supreme Court of Tennessee.

November 24, 1897

Error to Loudon circuit court; A. J. Blair, Judge.

Action between the Lenoir Car Company and J. H. Smith. From a judgment for the latter, said company brings error. Reversed.

Chambers McQueen & Nicholas and Lucky, Sanford & Tyson, for plaintiff in error.

J. E Cassady, A. S. Henderson, G. W. Fox, and Washburn, Pickle & Turner, for defendant in error.

BEARD J.

On the trial of this case the circuit judge was asked by plaintiff in error to except from the operation of the rule excluding witnesses, which was invoked and enforced, an officer of the corporation, whose testimony was important as bearing on the issues involved, and yet whose presence during the trial was essential to the proper presentation of its case. This the court declined to do; and when the officer was subsequently offered as a witness, with an affidavit showing the character of his testimony, the trial judge refused leave for him to testify. In Wisener v. Maupin, 2 Baxt. 356, it had been held that parties were equally subject, with other witnesses, to be put under the rule. This case led, no doubt to the passage of the act (chapter 107, Acts 1871) found carried substantially into the Code (Shannon's Code) at section 5599. This section is placed, and properly, in the article of the Code entitled "Competency of Witnesses," and is as follows: "Nothing in any section of this article shall be so construed as to require parties, or either of them, to be put under the rule, when witnesses in any cause, in which the rule has been applied for and granted." It is true that it was the corporation which was a party to the present litigation; yet if the view maintained by the trial judge is correct, and the letter of the statute is to be adhered to, corporations will be excluded from its benefits altogether. They can only be present by their representatives; and if it be that they are not, and adversary parties are, entitled to exemption from the rule, it is apparent that the statute will operate with inequality, and often with great unfairness. We see no reason for adopting a construction which would work such partial results. We hold, therefore, that the officer of a corporation, charged with the duty of looking after its interests in a pending trial, falls within the spirit of the act in question. For error in this regard, and for other...