Patty v. Salem Flouring Co.

• Decision Date: 28 July 1908
• Citation: 53 Or. 350,96 P. 1106
• Parties: PATTY v. SALEM FLOURING CO.
• Court: Oregon Supreme Court

96 P. 1106

53 Or. 350

PATTY v. SALEM FLOURING CO.

Supreme Court of Oregon

July 28, 1908

Appeal from Circuit Court, Marion County; Geo. H. Burnett, Judge.

Action by Reuben Patty, administrator of J.H. Patty, deceased against the Salem Flouring Company. From a judgment for plaintiff, defendant appeals. Reversed, and remanded for new trial.

This is an action by Reuben Patty, as administrator of the estate of J.H. Patty, deceased, to recover the alleged value of wheat delivered to the defendant by the plaintiff's intestate and by Thomas David, respectively; the latter claim having been assigned to the plaintiff. The material averments of the complaint, the contradiction thereof, the allegation of facts constituting separate defenses, and the denial of such new matter are substantially the same as set forth in the pleadings in the case of Savage v. Salem Mills Co., 48 Or. 1, 85 P. 69, except in certain particulars that differentiate the causes. The case at bar was tried, and the plaintiff secured a judgment, from which the defendant appeals.

Sanderson Reed, for appellant.

W.M Kaiser, for respondent.

MOORE, J.

It is contended by defendant's counsel that the court erred in permitting testimony given at the trial of an action in which the plaintiff herein was not a party to be read in evidence. The bill of exceptions shows that Dr. F.E. Smith testified that as a practicing physician he had visited Mr. Warner Breyman, who at the trial of this cause was too ill to attend as a witness. M.E. Pogue stated upon oath that as a stenographer he reported the case of Savage v. Salem Mills Co., 48 Or. 1, 85 P. 69, at the trial of which Mr Breyman appeared as defendant's witness, whose testimony was not disputed by counsel for the party calling him, though they might have claimed, in argument, that his sworn declarations were erroneous. Pogue was permitted, over objection and exception, to read from his stenographic notes the entire testimony so given, the material parts of which related to an alleged custom of the defendant with respect to receiving wheat from farmers and issuing to them receipts therefor, and detailed the manner in which the mill company the defendant in both actions, usually disposed of such grain. The plaintiff's counsel maintain that this testimony was admissible under a clause of our statute, to wit: "Evidence may be given on the trial, of the following facts: *** 3. A declaration, or act of another, in the presence and within the observation of a party, and his conduct in relation thereto." B. & C. Comp. § 718.

This enactment recognizes a well-established rule of evidence which is to the effect that when a declaration is made in the presence and hearing of a party, who understands the full import thereof and is at liberty to reply thereto, and the utterance is made by such a person and under such circumstances as naturally to call for an answer, a failure to deny an assertion that is adverse to the known rights or interests of such party is tantamount to an implied admission of the truth of the affirmation: 1 Am. &amp Eng.Ency.Law (2d Ed.) 672; 16 Cyc. 956; 1 Ency.Ev. 367; Elliott, Ev. § 230; Gillett, Ind. & Col.Ev. § 5; Greenleaf, Ev. § 197; Jones, Ev. § 291. "Declarations or statements," says Mr. Justice Martin, in People v. Koerner, 154 N.Y. 355, 374, 48 N.E. 730, 736, "made in the presence of a party are received in evidence, not as evidence in themselves, but to ascertain what reply the party to be affected makes to them. If he is silent when he ought to have denied, the presumption of acquiescence arises." It is the spontaneity of a party's denial of a declaration made in his presence and hearing, injuriously affecting his interests, that rebuts any inference of acquiescence as to the truth of an accusation or the assertion of an adverse right. A party might be so indignant at the production of adverse testimony which he knew was false, or which he asserted was untrue, as vociferously to declare that the witness was a deliberate liar. The use of the supposed emphatic observations might repel any implication of acquiescence that could arise from the testimony received; but the interruption of the orderly proceedings of a trial by a party would manifest his contempt for the court, and properly subject him to such reasonable punishment as might be imposed. As the methodical course of procedure cannot be disturbed without...