Norris v. Clinkscales

• Citation: 47 S.C. 488,25 S.E. 797
• Parties: NORRIS. v. CLINKSCALES et al.
• Decision Date: 26 October 1896
• Court: United States State Supreme Court of South Carolina

25 S.E. 797
47 S.C. 488

NORRIS.
v.
CLINKSCALES et al.

Supreme Court of South Carolina.

Oct. 26, 1896.

Appeal—Review—Witness—Transactions with Deceased—Discretion— Secondary Evidence op Lost Instruments—Claim and Delivery— Verdict—Damages—Necessity op Proof—Constitution—Construction—Instructions.

1. Where evidence is excluded on an entirely different ground from that of the objection interposed by counsel, the appellate court on review must consider, not the grounds of objection submitted by counsel, but only the reasons expressed by the court.

2. Under Code Civ. Proc. § 400, providing that certain persons shall not be examined in regard to any transaction or communication between such witness and a person at the time of the examination deceased, "as a witness against a party then prosecuting or defending the action as executor, * * * where such examination or any judgment or determination in such action or proceeding can in any manner affect the interest of such witness or the interest previously owned or represented by him, " to disqualify a witness the examination must not only be in regard to a transaction with deceased, and his testimony or the event of the trial affect the present or previous interest of the witness, but the action or proceeding must be one against or by one of the designated classes of persons.

3. The exercise by the trial court of its discretion in the exclusion of secondary evidence to prove the contents of an instrument claimed to have been lost or destroyed is reviewable on appeal.

4. On the issue as to the admissibility of secondary evidence to prove the contents of lost instruments, there was evidence that the instrument, which had been intrusted to G., one of defendant's counsel, was sent by him to M., another of defendant's counsel; that ineffectual search had been made by G. and defendant in the offices of both G. and M., who was dead. Held, that it was error to exclude the secondary evidence for failure to examine G., who was at the time of the trial in attendance at the legislature, as to the existence of the instrument.

[25 S.E. 798]

5. In claim and delivery against co-defendants not jointly liable, a verdict for plaintiff for certain property, valued at a certain sum, with damages or detention, is too indefinite, as it should in such case be against each defendant separately for the specific property, or its value, wrongfully in his possession.

6. To entitle plaintiff to damages in claim and delivery, he must give proof thereof. Mere proof of a wrongful detention is insufficient.

7. In the construction of an amendment to a section of the constitution, the section amended should be considered.

8. Under Const. 1895, art. 5, § 26, providing that "judges shall not charge juries in respect to matters of fact, but shall declare the law, " which deprived judges of the former constitutional authority "to state the testimony, " the judge in his charge can only state disputed facts hypothetical-ly, without reference to the testimony, or intimation of his opinion of its effect.

Appeal from common pleas circuit court of Abbeville county; Earle, Judge.

Action by Jane Estelle Clinkscales, as executrix, against A. J. Clinkscales and another. On the death of plaintiff, E. B. Norris, as executor, was substituted in her stead. There was a judgment for plaintiff, and defendants appeal. Reversed.

F. B. Gary and Parker & McGowan, for appellants.

Graydon & Graydon, for respondent.

BENET, Special Judge. This action for claim and delivery was brought by Jane Estelle Clinkscales to recover from the defendants certain personal property covered by a mortgage of which she was the assignee. After the commencement of the suit the plaintiff died, and her father and executor, E. B. Norris, was substituted as plaintiff. The cause was heard at Abbeville at the January term, 1896, before his honor, Judge Earle, and a jury, and resulted in a verdict for the plaintiff. The defendants appeal to this court from the rulings and charge of the circuit judge, and from the verdict of the jury, upon various grounds, which are set forth in the case in the form of ten exceptions. The conclusions arrived at by this court render it unnecessary to pass upon more than five of the exceptions, and these we will take up and consider in order.

The appellants' second exception alleges error "because the circuit judge erred in excluding the testimony of T. L. Clinkscales, Jr., under section 400 of the Code, when (1) that section of the Code had no application at all; and, (2) even if it had been applicable, the door was opened by Mrs. Estelle Clinkscales in her testimony, and the witness had the right, under the said section, to give his version of the transaction in reply to her." On the threshold of the main question involved in this exception the respondent's counsel make the objection that the testimony was excluded, not under section 400, but because it was contrary to the assignment the witness T. U. Clinkscales had made on the mortgage. In support of this view, the case does certainly show that the testimony was objected to by respondent's counsel "on the ground that this testimony is contrary to the assignment that the witness had made." This objection was overruled and the testimony admitted. But when court opened next morning the trial judge stated that he had some doubts as to the ruling of the previous day, and he decided to reverse it and "rule the testimony out, except so much of it as negatived the payment of the money as these plaintiffs show." It is manifest, however, that, although the motion to exclude was not grounded on section 400, the exclusion itself was placed upon no other ground. The circuit judge said: "The court rules that the testimony of T. L. Clinkscales must be expunged from the record, so far as it refers to any transaction between him [the witness] and J. P. Clinkscales. He is permitted to testify that Mrs. Estelle Clinkscales paid him no money for his assignment, inasmuch as she testified that she paid him $700 for it, but the court will not allow him to testify as to any transactions between him [T. L.] and J. P. Clinkscales." When it is borne in mind that the inhibition of section 400 refers particularly to testimony as to "any transactions" between the witness and a person deceased, and that J. P. Clinkscales was a person deceased, and that the testimony expunged was that part of T. L. Clinkscales' testimony which recounted "transactions" between him and the deceased person, and that the circuit judge in excluding it made use of the term "transaction" five times, —a word made technical by the Code, in section 400, and used by the judge in its technical sense, —there can be no doubt that the learned judge based his exclusion of the testimony upon section 400. If any further light were needed, it would be found In the charge to the jury, where the judge, again referring to the expunged testimony, said: "You can consider nothing as to any transactions between this defendant, T. L. Clinkscales, and J. P. Clinkscales. The law is that in a case like this no conversation or transaction like this witness here, between the witness and a deceased person, can be given in evidence." While, therefore, it is true that plaintiff's counsel moved that the testimony be excluded "on the ground that this testimony is contrary to the assignment that the witness made, " it is also true that in excluding it the presiding judge did so upon an entirely different ground, namely, upon section 400 of the Code. Consequently, in deciding the question whether or not the exclusion of the testimony was error of law, we must consider, not the grounds submitted by the counsel, but the reasons expressed by the judge.

It may seem strange that after having been on our statute book for nearly 30 years, and after having been construed and elucidated by this court in innumerable appeals, section 400 of the Code should still appear to be hard to understand, and difficult to apply as a rule of evidence. And yet it is not strange when one regards the abnormal length of its periods, and the intricate involutions of its phraseology.

[25 S.E. 799]

We can readily believe that no other rule of evidence gives as much trouble in the trial of causes as does the proviso of section 400. The first part of it reads as follows: "That [1] no party to the action or proceeding; nor [2] any person who was a legal or equitable interest which may be affected by the event of the action or proceeding; nor [3] any person who, previous to such 'examination, has had such an interest, however the same may have been transferred to, or come to, the party to the action or proceeding; nor [4] any assignor of anything in controversy in the action, shall be examined [a] in regard to any transaction or communication between such witness and a person at the time of such examination deceased, insane, or lunatic, as [b] a witness against a party then prosecuting or defending the action as executor, administrator, heir-at-law, next of kin, assignee, legatee, devisee, or survivor of such deceased person, or as assignee or committee of such insane person or lunatic, when [c] such examination, or any judgment or determination in any such action or proceeding, can in any manner affect the interest of such witness or the interest previously owned or represented by him." For the purpose of simplifying this very complex provision of the Code, we have inserted the figures 1, 2, 3, and 4, and the letters a, b, and c. A careful analysis of this proviso of section 400 shows that its purpose as a rule of evidence is to exclude the testimony of a witness who may belong to any one or more, or to all, of the classes indicated by the figures 1, 2, 3, and 4, but only when his testimony belongs to all three of the kinds described in the divisions a, b, and c. it describes four classes of persons, and three characteristics of testimony. The four classes of persons are these: (1) A party to the...