Westfall v. Wait

• Decision Date: 18 April 1905
• Docket Number: 20,447
• Citation: 73 N.E. 1089,165 Ind. 353
• Parties: Westfall v. Wait et al
• Court: Indiana Supreme Court

73 N.E. 1089

165 Ind. 353

Westfall v. Wait et al

No. 20,447

Supreme Court of Indiana

April 18, 1905

Rehearing Denied October 24, 1905.

From Marion Circuit Court (10,150); John S. Berryhill, Special Judge.

Action by Harriet Westfall against Joseph Wait and others. From a judgment for defendants, plaintiff appeals.

Affirmed.

William V. Rooker, for appellant.

Samuel Ashby and William S. Christian, for appellees.

OPINION

Montgomery, J.

This action was brought by appellant against appellees to contest the will of Clark Wait, deceased, and to revoke the probate of said will. A judgment in favor of appellant upon a former trial was reversed by this court for the reason that want of evidence rendered the verdict contrary to law. Wait v. Westfall (1904), 161 Ind. 648, 68 N.E. 271. The cause was remanded, and upon another trial the court directed the jury to return a verdict in favor of appellees, and upon that verdict the judgment was rendered from which this appeal is taken.

The assignment of errors calls in question the action of the court in taxing the costs of the former trial to appellant and in refusing to tax to appellees the cost of lay witnesses in excess of three in number, who were subpoenaed by them and testified only to facts upon which to express an opinion as to the mental condition of the testator, and in overruling appellant's motion for a new trial.

The former judgment was reversed at the cost of the appellee therein, and the mandate directed a retrial of the cause. Section 676 Burns 1901, § 664 R. S. 1881, provides that upon the reversal of a cause "the appellant shall recover costs in the Supreme Court, and in the court below, to the time of the first error for which the judgment is reversed." The reversal of this cause carried the parties back to the point where they were prior to the former trial, and carried with it all the costs of that trial. The appellants in that appeal, by virtue of the reversal obtained, were entitled to recover of appellee therein, all costs incurred and properly taxable in the lower court upon the former trial, and there was no error on the part of the court in rendering judgment as to costs accordingly. Doyle v. Kiser (1857), 8 Ind. 396; Reed v. Thayer (1857), 9 Ind. 157; Winton v. Conner (1865), 24 Ind. 107; Eigenmann v. Kerstein (1880), 72 Ind. 81; Shoemaker v. Smith (1885), 100 Ind. 40.

Section 496 Burns 1901, § 488 R. S. 1881, provides: "If any party summon more than three witnesses to prove the same fact, he shall pay the costs occasioned by the additional number of witnesses, unless the court shall otherwise order." This statute does not apply to lay witnesses who detail facts and circumstances within their personal knowledge, upon which they may base an opinion as to mental condition, where such detailed facts and circumstances given by the several witnesses are not the same. It is a matter of common knowledge that such witnesses usually testify to different facts, occurring at different times and places, although tending to prove the same conclusion; and in such cases a party is not restricted by this statute to three witnesses, and chargeable with the costs occasioned by summoning any witnesses in excess of this number. Fromer v. State (1875), 49 Ind. 580.

Appellant's motion to tax the costs of witnesses in excess of three to appellees was supported by affidavit, and was met by counter-affidavits denying that more than three witnesses were summoned or used by appellees to testify to the same facts. The trial court, upon the issue of fact thus joined, found against appellant, and as the question is presented to us by the record we can not say that there was any error in this decision. This court will not search through the evidence contained in the general bill of exceptions, make comparisons, and thus retry this issue of fact, and determine whether the testimony of the witnesses named in the motion was in all respects the same. Reader v. Smith (1882), 88 Ind. 440; Louisville, etc., R. Co. v. Dryden (1872), 39 Ind. 393. No error in the taxation of costs being shown by the record, we must indulge the presumption that the action of the court below in this matter was proper and right.

Appellant's motion for a new trial embraced seventy-seven specifications or reasons, the first sixty-eight of which related to the admission and rejection of evidence, the next seven to the giving of a peremptory instruction in favor of appellees, and the last two were, respectively, that the verdict is not sustained by sufficient evidence, and is contrary to law. It would be manifestly impracticable to treat each of the specifications in the motion for a new trial separately without extending this opinion beyond all reasonable bounds. We have examined each of the reasons relating to the admission and rejection of evidence assigned in the motion for a new trial, and find the larger number of them unimportant, and the rulings of the court with respect to the same proper.

A large number of the reasons urged for a new trial are founded upon an alleged abuse of the rules governing the cross-examining of witnesses. In these instances appellant introduced witnesses, for the obvious purpose of supporting the charge that the decedent, Clark Wait, was of unsound mind at the time of making the will in question, who testified to their acquaintance with him, and to certain acts and conversation of the testator, together with the attending circumstances. Upon cross-examination of these witnesses appellees were permitted to inquire more fully into the extent of their acquaintance with the decedent, and to bring out other facts and circumstances relating to his acts and conduct, the tendency of which was to disprove the charge that the testator was of unsound mind; and, finally, upon all the facts thus elicited, appellees were permitted to ask the opinion of the witnesses whether the testator was of sound or unsound mind.

It is a familiar rule of practice in this State that cross-examination must be confined to the subject-matter of the examination in chief; but when the direct examination opens on a general subject, the cross-examination may go into any phase of that subject, and can not be restricted to mere parts of a general and continuous subject which constitutes a unity. The general subject of the examination in chief of these witnesses was the testamentary capacity of Clark Wait at the time of making the will in suit. The cross-examination was upon the same general subject, and was designed to meet and overthrow the effect upon the jury intended by the examination in chief, and to prevent the jury from drawing unwarranted inferences from the statements of the witnesses. It will not be necessary in this case to determine whether the cross-examination exceeded proper limits, inasmuch as that fact, upon the evidence elicited, would not constitute reversible error. Appellees were entitled to make these witnesses their own, and to prove upon direct examination all the facts brought out upon cross-examination and objected to by appellant. The sum of the objection, then, is that evidence pertinent to the issue and proper in itself was admitted at a premature time and in an improper way. Appellant was allowed upon reexamination of these witnesses to bring out all the details of the facts and statements to the admission of which objections were made. Ordinarily, where, as in this case, it does not appear that appellant's rights were affected by the admission of this evidence upon cross-examination, in any manner or to any extent other than they would have been had the same evidence come in from the same persons, as appellees' witnesses, upon direct examination, the error, if any error was committed, is harmless. Osburn v. State (1905), 164 Ind. 262, 73 N.E. 601, and cases cited.

The trial court directed a verdict in favor of appellees, and this is assigned and urged upon us as error. If the evidence was of such a character as to make it clear to the court that a verdict, if returned for appellant, upon whom the burden of the issue rested, could not stand, then it became the duty of the court...