Rothrock v. Gallaher.

• Decision Date: 06 October 1879
• Citation: 91 Pa. 108
• Parties: Rothrock, Ex'r., <I>versus</I> Gallaher.
• Court: Pennsylvania Supreme Court

91 Pa. 108

Rothrock, Ex'r., versus Gallaher.

Supreme Court of Pennsylvania.

June 6, 1879.

October 6, 1879.

June 6th 1879.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY and STERRETT JJ. WOODWARD, J., absent

Error to the Court of Common Pleas of Franklin county: Of May Term 1878, No. 214.

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E. S. Doty and J. McDowell Sharpe, for plaintiff in error.— Evidence of statements contradictory to what a witness has testified to, on the trial of a cause, are inadmissible to discredit him unless he is first examined as to such statements: Wright v. Cumpsty, 5 Wright 102; McAteer v. McMullen, 2 Barr 32; Wertz v. May, 9 Harris 279.

The witness, Wright, did not refresh his memory by reference to the notes of the former trial. His memory was a blank, and could not be refreshed. This would have opened the way for the admission of a memorandum made by himself, as independent proof, provided he could swear to its accuracy when it was written. But no such memorandum was produced. In lieu thereof a portion of the judge's notes was read, to supply omissions in his testimony, the result of a faded recollection. We submit that this was going beyond any recognised authority, and, if sanctioned, will inaugurate a dangerous precedent.

To allow Mrs. Gallaher to testify that the package was in the same condition when opened by Mr. Wright and herself, as it was immediately after her husband's death, was tantamount to permitting her to swear as to its condition at and before his death. If the package was in the same condition the very instant of his death, it would be an inevitable inference that the condition was the same the instant before his death.

E. D. Parker, L. E. Atkinson, F. M. Kimmell and T. M. Mahon, for defendants in error.—The admission of evidence of the declarations of a witness for the purpose of discrediting him, without a previous examination of the witness to the same matter, is in the discretion of the court: Walden v. Finch, 20 P. F. Smith 460.

The notes read were a deposition taken in court in a former trial, and the plaintiff had the opportunity of cross-examination. The case is in principle the same as if the witness was dead, insane or sick, or out of the jurisdiction of the court. If the witness had been deceased at the time, the notes of the learned judge would have been admissible: Moore v. Pearson, 6 W. & S. 51; Rhine and Robinson, 3 Casey 30.

So of an absent witness: Wright v. Cumpsty, 5 Wright 102. The notes of counsel, showing what a deceased witness testified on a former trial between the same parties, are evidence when proved to be correct in substance, independently of his recollection: Rhine v. Robinson, supra; Philadelphia & Reading Railroad Co. v. Spearen, 11 Wright 300; 1 Greenl. on Ev., 11 ed., sect. 168. If, in cases of disqualifying interest, the witness has previously given a deposition in the case, the deposition may be read in chancery, as if he were since deceased, or insane, or otherwise incapacitated: Jack v. Woods, 5 Casey 378; Emig v. Diehl, 26 P. F. Smith 359.

The language of the Act of the Assembly, April 1st 1870, is "that no interest or policy of law shall exclude any party to the record from testifying to matters occurring since the death of the person whose estate, through a legal representative, is a party to the record." There is no difference in the meaning of the two expressions, "since the death" of a person, and "from and immediately after the death" of a person. "Immediately" refers to time, "after the death." The moment the breath was out of the body of Mr. Gallaher, "from the time of," that moment, the mouth of Mrs. Gallaher was opened to testify to any matter occurring subsequently.

Mr. Justice MERCUR delivered the opinion of the court, October 6th 1879.

This was an action by the executor of Robert C. Gallaher, to recover for the alleged conversion of certain United States bonds. At one time during the life of the decedent, they were owned by him, and were in his possession. The plaintiff attempted to prove that the defendant had purloined them either a short time before Gallaher's death or soon thereafter. The defendant alleged they had been taken by some of the plaintiff's witnesses. In a previous suit by the plaintiff against the defendant for the same subject-matter, and after witnesses had testified, the plaintiff took a nonsuit. Many of those witnesses testified again on the trial of this cause. There was no direct evidence of the taking or conversion of the bonds. The plaintiff sought to prove the taking by showing the defendants had access to the safe in which the bonds were kept and had actually caused it to be opened. This attempt as well as the effort to show that some of the witnesses had sworn differently on the former trial, gave a wide range to the evidence. Under all the circumstances we see no error in the court having admitted evidence of the declarations as well as of the acts of the persons sought to be inculpated.

The case was so well and carefully tried that we do not deem it necessary to consider all the assignments in detail. We will briefly consider the thirteenth and fourteenth. The thirteenth is to the admission of the evidence of Wright given on the former trial. His evidence was then taken down by the judge before whom the case was tried, and on the present trial the judge testified to the correctness of his notes of evidence. That evidence was of entries which he testified he had made in a small book, of bonds and coupons, which he was going to sell and did sell. Those entries showed in figures the various numbers and amounts of twenty bonds. Two...