Rothrock v. Gallaher

1. The testimony of a witness once duly taken in a pending cause may afterwards be read in evidence in another cause between the same parties in regard to the same subject-matter, when in the interval the witness has lost his memory by reason of old age and ill health. 2. In a suit by an executor the defendant is not incompetent to testify to any fact occurring or existing after the death of the decedent, by reason that said testimony may inferentially tend to prove the same fact existed prior -to his death. 3. Where it is proposed to discredit a witness by proof of contradictory statements, whether his attention must first be called to the matter rests in the sound discretion of the court, and unless that discretion is abused, its exercise is not ground for reversal.

Error to the Court of Common Pleas of Franhlin county: Of May Term' 1878, No. 214. Trover and conversion by Joseph Rothrock, executor of Robert Gallaher, deceased, for use of Joseph H. Gallaher, against Jane Gallaher, for twenty-three United States bonds, of the value of $80,000, and one promissory note of the value of $150. The questions, as passed upon by this court, are sufficiently illustrated by the following offers of evidence in the court below, and the facts as stated by this court. At the trial before Rowe, P. J., defendant proposed to prove, that in a conversation witness had with S. Y. Shelly (whose deposition was produced by plaintiff), that Shelly told the witness in said conversation, that Seth Zeigler took that trunk himself (speaking of the trunk taken from Kauffman’s), and that the man that took the trunk took the bonds. This was offered to show: 1. That Shelly and Zeigler took these bonds themselves: 2. To show that Shelly charged another person than this defendant with taking the bonds in dispute. Objected to because when the deposition of Shelly was taken he was not asked about, nor was his attention turned to this conversation ; because Shelly did not, in his deposition, testify to any knowledge he had of the taking of the bonds or who had them, and therefore it is not a contradiction of his testimony; because these declarations were made out of the presence of Seth Zeigler, and are wholly irrelevant and collateral to the issue. The'court overruled the objections, on the ground that counsel had no knowledge of this testimony in the lifetime of Shelly. (8th assignment of error.) It was proposed to ask another witness whether Shelly ever’told him that he had opened the Gallaher safe, between the time of the death of Gallaher and the appraisement for Mrs. Gallaher, for the purpose of contradicting Shelly. Objected to, because the answer of Shelly on that subject was conclusive and cannot be contradicted, being a wholly collateral and immaterial fact. Objection overruled. (10th assignment.) The defendant also offered to prove, by John Wright, that he was examined in the case of Rothrock, executor of Gallaher, v. John Wright and Jane Gallaher, in the Court of Common Pleas of Juniata county, about the subject-matter of this controversy. That on that occasion he cannot say that he testified about the little memorandum-book, marked B. F. J., but if he did give testimony on the subject and the numbers on the two leaves torn out of the book, such testimony was correct and true, but that his memory has failed him now. Extract read to the witness and the jury, from the notes of his testimony taken- by Judge Junkin, on the former trial, as part of the offer, as follows: “John Wright. * * * When I went home, the paper that was shown me excited my curiosity, and I examined the book and the paper was gone. I saw where the paper had been. There were two leaves torn out of the little book. I had made a memorandum on that leaf of bonds that I was going to sell. They were the bonds sold to Jay Cooke & Co., and the coupons I sold to Saylor & Stevenson.” It was objected that the witness’ testimony could not be supplemented by such evidence. The court admitted the evidence, saying, “ This is a very old man, sick, and by reason of his old age, his memory, he says, has failed him in the matters inquired of. On principle,' he ought to be allowed to show that what he swore to, was true, with a view to its introduction afterwards from the judge’s notes.” (13th assignment.) On the part of the defence, it was proposed to ask Jane Gallaher, the defendant, whether the package, when opened by Mr. Wright, was in the same condition that it was in, from and immediately after the death of her husband. Objected to because the question necessarily involves the condition of the package at the moment of her husband’s death, and inferentially, its condition before his death, and this the witness is not competent to prove; and because the evidence goes to prove a delivery of the package to her in her husband’s lifetime, which she is incompetent to prove. The court overruled the objections. (14th assignment:) The verdict was for defendant, when plaintiff took this writ, among the assignments of error being those noted above. Evidence of statements contradictory to what & 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. 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 n-o 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.