Rudy v. Myton

Opinion by W. D. Porter, J., The plaintiff had called a living and competent witness who had testified adversely to the interest of defendants with regard to a certain matter which was relevant and which had occurred before the death of Margaret Rudy, the plaintiff, and in the. presence and hearing of such witness. The effect of this was to render the surviving defendants competent to testify with regard to that particular relevant matter, all the elements essential to bring the case within the operation of the. Act of June 11, 1891, P. L. 287, being present: Roth’s Estate, 150 Pa. 261; Krumrine v. Grenoble, 165 Pa. 98 ; Brumbaph v. Johnson, 187 Pa. 602; Robbins v. Farwell, 193 Pa. 37; Proper v. Campbell, 15 Pa. Superior Ct. 153. There was error in the "rejection of the testimony of Thomas K. Shipton as to the agreement,' with regard to which the witness, Elmer Coyle had testified," and the first specification of error is sustained. The offer of evidence, the rejection of which is the foundation of the second assignment of error, was to prove an immaterial fact, and the specification is not worthy of consideration. The paper, the admission of which in evidence is the subject of the third assignment of error, was certainly not admissible for the purpose for which it was offered, “ to show the division of the expense incurred, as it appears on the,paper, equally be [318] tween the three persons.” The paper does not show that the expense was equally divided between the three persons, nor does it show that either Margaret Rudy or Henry Rudy had any interest in the matters of account to which it related. It contains no charge or assertion of claim against either of said parties nor does it indicate that they were entitled to any credit. There was nothing from which the jury ought to have been permitted to draw the inference that the plaintiff had any interest in the matters to which this paper related. There was no evidence as to the date at which the writing upon the paper was done. The paper was not admissible as an account stated between the parties, for it did not even purport to be such. There was no evidence that Shipton had ever delivered this paper to any person so as to make it admissible as a declaration against interest upon his part. This loose scrap of paper could not be treated as a book of original entry: Hough v. Doyle, 4 Rawle, 290; Thompson v. McKelvey, 13 S. & R. 126; Wissahickon Mutual Fire Insurance Company v. Wannemacher, 16 Superior Ct. 680. The paper did not show upon its face that it had any bearing upon the matter in controversy, nor was there parol testimony to connect it with the matter in dispute. The third assignment of error is sustained. The defendants having attempted to discredit a witness of the plaintiff by showing that his testimony upon this trial was different from that which he had given upon a former occasion, it was proper to permit the plaintiffs to show what had been the entire testimony of said witness upon the former occasion, with regard to the particular matter as to which the alleged discrepancy in his testimony arose. The effect-of a witness’s testimony is to be gathered from all that he says, and it would be unjust to subject a witness to suspicion by showing a part of what he had said on a former occasion and excluding the explanation which he then gave. The fourth assignment of error is dismissed. We cannot say, in view of the relationship of the parties and of the facts with which they were acquainted as to the ownership of the various tracts of land, that there was no evidence from which the jury ought to have been permitted to find that it was understood between them that Henry Rudy was acting for Margaret Rudy in the negotiations which resulted in the [319] reconstruction of the pipe line. The fact was fairly open to doubt, but it was still for the jury. The fifth, sixth, seventh and eighth assignments of error are dismissed. Plaintiff’s eleventh point contained two distinct propositions and its refusal was not reversible error. The judgmentis reversed and a venire facias de novo awarded.