Satre v. Woodyard

• Decision Date: 16 November 1909
• Citation: 66 W.Va. 288,66 S.E. 320
• Court: West Virginia Supreme Court
• Parties: SATRE. v. WOODYARD.

(66 W.Va. 288)

66 S.E. 320

SATRE.

v.WOODYARD.

Supreme Court of Appeals of West Virginia.

Nov. 16, 1909.

1. Appeal and Ebkor (§ 692^*—Harmless Ekbor—Exclusion of Evidence.

Although a question propounded a witness, objection to which was sustained below, shows on its face the relevancy and materiality of the evidence called for, error in the ruling thereon will not be available here unless it appears what the answers would have been, or what was proposed to be proven thereby; the test here being whether the error complained of was prejudicial to the complaining party.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 2908; Dec. Dig. § 692.*]

2. Evidence (§ 317*)—Admissions—Person Not Party.

Alleged admission to the opposite party of the same facts testified to by a witness, whose deposition has been suppressed at the trial, cannot be shown in evidence on the cross-examination of such opposite party to supply the loss of the deposition suppressed.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1174-1192; Dec. Dig. § 317.*]

3. Witnesses (§ 240*)—Evidence (§ 471*)— Examination—"Leading Questions"—Action for an Accounting—Admissibility of Evidence.

A question propounded plaintiff as to whether two items in an account previously rendered defendant and offered in evidence by him. viz.— "September 4, 1898. To notes I gave him to collect. $470.50." "March 15, 1900." To notes I gave him to collect, $438.55"—represented or was intended to represent the notes sued on, was rightfully rejected as being leading, and otherwise improper.

[Ed. Note.—For other cases, see Witnesses, Cent. Dig. §§ 838, 839; Dec. Dig. § 240;* Evidence, Cent. Dig. § 2157; Dec. Dig. § 471.*

For other definitions, see Words and Phrases, vol. 5, pp. 4040, 4041.]

4. Witnesses (§ 140*)—Competency—Transaction with Decedent—Person Interested in Result.

After the assignment of a promissory note and death of the assignor oi payee, the "maker is a competent witness, in an action by the assignee against the administrator of the assignor, to prove assignment and payment of the note to the latter as agent of the former in his lifetime.

[Ed. Note.—For other cases, see Witnesses, Cent. Dig. § 612; Dec. Dig. § 140.*]

5. Depositions (§ 83*) — Suppression — Grounds.

If a deposition contain competent evidence on matters in issue at the time it was taken, the fact that the amended declaration, on which the trial was had, put in issue additional matters, is not good ground of objection to the evidence therein pertaining to the matters in issue when taken; and is not good ground for suppressing the deposition, in whole or in part, after trial begun on such amended declaration.

[Ed. Note.—For other cases, see Depositions, Cent. Dig. § 221; Dec. Dig. § 83.*]

(Syllabus by the Court.)

6. Witnesses (§ 94*)^Competency—"Interest."

In determining the competency of a witness for "interest, " the test is not whether the witness may be interested in the question in issue, or may entertain wishes on the subject, or may even have occasion to test the same question in a future suit, but whether the proceeding can be used as evidence for him in some pending or future suit. He must have an interest to be affected by the result of the suit, or by force of the adjudication.

[Ed. Note.—For other cases, see Witnesses, Cent. Dig. §§ 249-257; Dec. Dig. § 94.*

For other definitions, see Words and Phrases, vol. 4, pp. 3702-3706.T

Error to Circuit Court, Wirt County.

Action by V. E. Sayre against R. H. Woodyard, administrator of E. R. Wood-yard, deceased. Judgment for defendant, and plaintiff brings error. Reversed.

T. A. Brown, for plaintiff in error.

D. C.Casto and H. A. Sommerville, for defeudant In error.

MILLER, P. The plaintiff's amended declaration in assumpsit contained the common counts, and a special count upon three notes made by S. B. Rathbone, Jr., the first, May 9, 1898, payable 21 months after date, to the order of Nimrod Wiseman, for $68.74; the second, November 15, 1899, payable 90 days after date, to E. R. Woodyard, for $219; the third, May 9, 1898, payable 21 months after date, to the order of Nimrod Wiseman, for $106.51; and charged that the first and third of said notes, for a valuable consideration, had been indorsed, transferred, and turned over by Wiseman to Woodyard, and by him, for a good and valuable consideration, together with said second note, indorsed in blank, and delivered to plaintiff, and that she on the—— day of February, 1900, had redelivered said notes to the said Woodyard for collection and accounting of the proceeds to her; that Wood-yard had received and accepted said notes from her in that behalf, and then and there promised plaintiff to collect the same, and, when collected, to pay over the proceeds thereof to her; that Woodyard had in his lifetime in fact collected said notes, but had converted the proceeds to his own use, and had not in his lifetime, nor had his administrator after his death, paid or accounted therefor, or for any part thereof to plaintiff. The amended declaration is substantially the same as the original, except that the third note counted upon is not called for in the original, and the amount demanded upon said notes in the original declaration is $369.02, while in the amended declaration the amount demanded is $454.25, principal, with interest to January ——, 1904, aggregating $563.27. On the trial below the verdict and judgment was for the defendant. The points relied on are errors alleged to have been committed in the trial, and saved by numerous bills of exceptions.

Harry Sayre, son of and witness for plaintiff, was asked a number of questions relating to a note which plaintiff claimed had been executed by Mrs. Rathbone to Wood-yard by way of security for the notes sued on. The court below sustained objections to these questions, and would not permit them to be answered. The record fails to show what the answers would have been, or what was intended to be proven by them. A rule many times declared by this court, lastly perhaps in Delmar Oil Co. v. Bartlett, 62 W. Va. 700, 708, 59 S. E. 634, is that the refusal of the court below to permit a witness to answer such questions will not, on a motion for a new trial, be available as prejudicial error, unless the expected answer be disclosed before the time of the ruling. Counsel, mindful of this rule, nevertheless insists that these questions show upon their face that the answers must have been material to the issues involved, and are therefore brought within some supposed exception to the general rule. No authority establishing such an exception is cited, however, and we know of none. Even if the questions did indicate the materiality of their answers, materiality is not the test. The test is whether the answers would have aided the complaining party, and their rejection was consequently prejudicial to his interests. We cannot in reviewing a judgment on writ of error assume that answers favorable to the exceptor would have been given. Delmar Oil Co. v. Bartlett, supra, point 5 of the syllabus.

Another question propounded to the same witness was: "Harry, what effort do you know, if any, has been made to get the original note executed by Mrs. Rathbone to E. R. Woodyard?" He answered: "Well my mother—she promised my mother—I heard her promise my mother she would look for it, and send it to her if she could possibly find it." The plaintiff complains that this question and answer were ruled out. It is doubtful whether this note was material; it was not one of the notes sued upon; the plaintiff did not claim this note; there was no controversy about it. The most that plaintiff did claim was that it had been taken by Woodyard as security for the notes assigned to her. The failure of the plaintiff to procure Mrs. Rathbone's testimony, and to produce the original note in evidence, could not have been cured in this way.

Complaint is made that answers were not permitted to a number of questions, objected to, propounded to R. H. Woodyard, administrator, on cross-examination. The evident object of these questions was to cover the loss of the deposition of S. B. Rathbone, Jr., suppressed, by showing certain supposed admissions or declarations, by Rathbone to the witness, of facts testified to by him in his deposition. Answers to these questions would clearly have been hearsay, and the evidence objectionable on this ground if no other. Rathbone was not a party to the suit. What he may have said or admitted to the witness would not have bound the estate of E. R. Woodyard.

Another point is the refusal of the court to permit the witness Woodyard to testify as to what, if anything, was shown by a record book kept by his father with reference to the note of Mrs. Rathbone referred to. This clearly would have been error. The book was the best evidence, was in existence, and, if it contained material evidence and the plaintiff desired it, the proper process of the court should have been employed to produce it. Its contents could not be proven in the way proposed.

Another point relates to the admission inevidence by defendant of two notes executed by the plaintiff in favor of E. R. Wood-yard in October and November, 1901, subsequent to the date of the alleged assignment by Woodyard to her of the notes sued upon, and discounted in bank by him, and paid by her. The purpose of defendant in introducing these notes evidently was to discredit the plaintiff's evidence as to the fact of the assignment to her of the notes sued on, and for this purpose we think there was no error in admitting the notes in evidence.

Another point made is that the court below erred in not permitting Mrs. Sayre to answer a question propounded to her respecting items in a statement of account rendered by her to the administrator prior to the institution of the suit, offered by defendant, and admitted in evidence, as follows: "September 4, 1898. To notes I gave him to collect, $470.50." "March 15, 1900. To notes I...