Nixon v. Shaver

• Decision Date: 30 October 1934
• Docket Number: No. 7748.,7748.
• Citation: 176 S.E. 849
• Court: West Virginia Supreme Court
• Parties: NIXON. v. SHAVER.

176 S.E. 849

NIXON.

v.SHAVER.

No. 7748.

Supreme Court of Appeals of West Virginia.

Oct. 30, 1934.

Syllabus by the Court.

1. Declarations of a person now deceased are admissible as evidence for the purpose of establishing a relevant fact, where it appears that the declarant had peculiar means of knowing the fact stated, and no interest to misrepresent it, and it was opposed to his pecuniary or proprietary interest.

2. Ordinarily, a party against whom a writing is sought to be used as a standard for comparison of handwriting may be required, for the purpose of establishing its genuineness, to testify as to whether or not he wrote the same.

3. Whether a jury, after retirement, may, upon their request, have a particular portion of the evidence read to them, is ordinarily a matter resting in the sound discretion of the trial court. The exercise of that discretion is reviewable on appeal.

Error to Circuit Court, Marion County.

Action by Carl V. Nixon, as administrator of the estate of Lucinda R. Nixon, deceased, against Letha M. Shaver. To review an adverse judgment, plaintiff brings error.

Judgment reversed and new trial awarded.

G. W. Ford and James C. Holt, both of Grafton, for plaintiff in error.

W. P. Samples, of Grafton, for defendant in error.

WOODS, President.

This action is based on an assignment by the National Bank of Fairmont to Carl V. Nixon, as administrator of the estate of Lucinda R. Nixon, deceased, of any rights the former may have against the person or persons receiving money on a certain certificate of deposit issued by it on the 16th day of March, 1929, in the name of Lucinda R. Nixon. The assignee seeks a recovery against Letha M. Shaver of the value of the certificate, with interest, on the theory that she had forged or indorsed without authority the name of the payee and obtained the money thereon. From an adverse judgment, plaintiff brings error.

Plaintiff's decedent died November 12, 1930, at the age of eighty-eight years. It appears that she resided with her brother J. J. Nixon from the early nineties until 1917, when she went to Joshua R. Nixon's (another brother). She lived with the latter until his death, March 6, 1929. Both brothers had looked after their sister's financial affairs. The former stated that he had placed "her money, $500.00, in the bank, and kept it there"; and that she "didn't have no mind to do business." Carl V. Nixon testified that his father, Joshua R. Nixon, had looked after Lucinda's business for years; that witness had been with his father when the latter renewed certificates for Lucinda; that such certificates were taken from the same box, in the press, in which his father kept his own certificates; that his aunt "wasn't capable of attending to business"; "wasn't able to get to town." Lucinda lived with the defendant (a daughter of Joshua) from March 9 to June 30, 1929, and with Carl V. Nixon from June 30 to December 8, 1929. On March 16, 1929, a certificate, in the name of Lucinda, having become due and payable, was presented to the National Bank of Fairmont by some one, and a new six months' certificate issued in its place. On September 21, 1929, the last-mentioned certificate was paid by the bank. The nameof "Lucinda R. Nixon" indorsed on both certificates is in the same handwriting. The evidence of plaintiff is that Lucinda could not write her name;--of defendant, that she could.

R. L. Janes was summoned as a witness on behalf of plaintiff for the purpose of showing that any certificate, or certificates, formerly held by Joshua R. Nixon for his sister passed into possession of the defendant on March 1, 1029. Inasmuch as Janes failed to make his appearance on account of sickness, the plaintiff and defendant agreed to stipulate what such witness' evidence would be, without admitting the truth thereof, and at the suggestion of the court, the same was made on the record, being taken in shorthand by the reporter.

Such stipulation was to the effect that Janes was at the home of Joshua R. Nixon on Monday (February 26, 1929), at which time Nixon had his private papers in a shoe box and among them were certain certificates of deposit "which the said, Joshua R. Nixon told the witness belonged to him and to Lucinda R. Nixon, and that he was paying taxes on certificates of d posit and money in her name and his own money amounting to eight thousand dollars; that he mentioned that he had told Lucinda she should convey one of these certificates to somebody to look after her, and that Lucinda had refused to do so; that thereupon the said Joshua R. Nixon replaced these certificates in the shoe box and tied a string around the box; that this box was placed in an oak press standing in the bid loom"; that on the day Nixon left for the hospital, to wit, March 1, 1929, the latter, in the presence of witness, told the defendant, Le ha M. Shaver, to get his private papers and keep them for him until he returned; that defendant thereupon took the box, "still tied with what looked to be the same string, and thereupon left the house with it, " etc. After a part of his evidence had been introduced, the plaintiff requested that the stipulation be read to the jury. On motion of defendant and over objection of plaintiff, the court struck that portion of the stipulation which we have italicized, as hearsay, and had the remainder read to the jury.

Plaintiff claims that it was error not to read the entire stipulation; especially in view of defendant's contention that her father had delivered certain certificates of deposit in his own name to her for safe-keeping on February 10, 1929 and the further testimony that when the administrator of...