Patty v. Salem Flouring Mills Co.

Mr. Justice Moore delivered the opinion of the court. It is contended by defendants’ counsel that the court erred in permitting testimony given at the trial of an action in which the plaintiff herein was not a party to be read in evidence. The bill of exceptions shows that Dr. F. E. Smith testified that as a practicing physician he had visited Mr. Werner Breyman, who at the trial of this cause was too ill to attend as a witness. M. E. Pogue stated upon oath that as a stenographer he reported the case of Savage v. Salem Mills Co., 48 Or. 1 (85 Pac. 69), at the trial of which Mr. Breyman appeared as defendant’s witness, whose testimony was not disputed by counsel for the party calling him, though they might have claimed, in argument, that his sworn declarations were erroneous. Pogue was permitted, over objection and exception, to read from his stenographic notes the entire testimony so given, the material parts of which related to an alleged custom of the defendant with respect to receiving wheat from farmers and issuing to them receipts therefor, and detailed the manner in which the mill company, the defendant in both actions, usually disposed of such grain. The plaintiff’s counsel maintain that this testimony was admissible under a clause of our statute, to-wit: “Evidence may be given on the trial, of the following facts: * * 3. A declaration, or act of another, in the presence and within the observation of a party, and his conduct in relation thereto.” Section 718, B. & C. Comp. 1. This enactment recognizes a well-established rule of evidence, which is to the effect that when a declaration is made in the presence and hearing of' a party, who understands the full import thereof and is at liberty to reply thereto, and the utterance is made by such a person and under such circumstances as naturally to call for an answer, a failure to deny an assertion that is adverse to the known rights or interests of such party is tantamount to an implied admission of the truth of [354] the affirmation: 1 Am. & Eng. Enc. Law (2 ed.) 672; 16 Cyc. 956; 1 Enc. Ev. 367; Elliott, Ev., § 230; Gillett, Ind. & Col. Ev., § 5; Greenleaf, Ev., § 197; Jones, Ev., § 291. “Declarations or statements,” says Mr. Justice Martin, in People v. Koerner, 154 N. Y. 355, 374 (48 N. E. 730, 736), “made in the presence of a party are received in evidence, not as evidence in themselves, but to ascertain what reply the party to be affected makes to them. If he is silent when he ought to have denied, the presumption of acquiescence arises.” It is the spontaneity of a party’s denial of a declaration made in his presence and hearing, injuriously affecting his interests, that rebuts any inference of acquiescence as to the truth of an accusation or the assertion of an adverse right. A party might be so indignant at the production of adverse testimony which he knew was false, or which he asserted was untrue, as vociferously to declare that the witness was a deliberate liar. The use of the supposed emphatic observations might repel any implication of acquiescence that could arise from the testimony received; but the interruption of the orderly proceedings of a trial by a party would manifest his contempt for the court, and properly subject him to such reasonable punishment. as might be imposed. As the methodical course of procedure cannot be disturbed without incurring liability for the annoyance, a party who is entitled to his day in court ought not to be bound by the undisputed testimony introduced by himself or his adversary at a former trial, so as to render such evidence admissible at another trial, where a different party is interested in the judgment or decree that’ may be given. Thus in Hovey v. Hovey, 9 Mass. 216, a deposition taken to be used in another action in which a different party was plaintiff was, over objection, received in evidence on the ground that, as the defendant had procured the written declaration under oath, he thereby admitted the truth of the facts stated. It was held, however, that [355] such evidence was inadmissible; the court saying: “It cannot be inferred, from the defendant’s procuring the deposition, that he is bound to admit the statement contained in it. Besides, consequences of the most mischievous kind might be apprehended from allowing such a precedent to be established.” So, too, in Wilkins v. Stidger, 22 Cal. 231 (83 Am. Dec. 64), a similar conclusion was reached. In that case a Dr. McDaniel had assigned to the plaintiff a demand against the defendant upon which the action was based. Mr. Justice Crocker, speaking for the court in rendering the decision, says: “It seems that the professional services sued for were given in attending to injuries sustained by the defendant, caused by the upsetting of a stage-coach of the California Stage Company, in which the defendant was a passenger. The defendant’s claim for damages against the stage company was referred to arbitrators, and at the trial before them the defendant introduced McDaniel to prove the amount and correctness of his bill for services, being the same in controversy in this suit, as an item of the damages to which he was entitled against the stage company. The plaintiff in this action offered evidence to prove this fact, of the use of McDaniel and his bill as testimony by the defendant, and it was admitted under the exception of the defendant. To support this ruling of the court it is urged that as McDaniel testified that his bill was correct, and as the defendant was present and did not deny the statement, but used the evidence and bill in the trial before the arbitrators as a true and correct account, it is evidence of an admission by him, and that his silence is to be deemed an acquiescence. It is clear that this evidence is not of such a character as to conclude the defendant, or to estop him from controverting it, for the plaintiff was not influenced thereby to do any act to his injury. His remaining silent and not denying or contradicting his witnesses, when giving this evidence before the arbitrators, cannot be held as [356] estopping him, or deemed an acquiescence. His remaining silent did not injure the plaintiff, or operate as a fraud upon him. It is clear that a party to a suit is not bound by, or held to admit as true, every statement made by his witnesses during the trial of a cause, because he does not deny or contradict them at the time. A denial or contradiction under such circumstances would produce great confusion, and cause continual wrangling between the party and the witnesses. There is a certain regularity, order, and decorum required in such proceedings, which precludes parties from interposing with denials and objections as they could in common conversations. There are circumstances under which statements may be made, which, if not denied by the party at the time, he is deemed to have admitted; but this does not properly come within that rule.” To the same effect, see Broyles v. State ex rel. De Long, 47 Ind. 251; Horan v. Byrnes, 72 N. H. 93 (54 Atl. 945: 62 L. R. A. 602: 101 Am. St. Rep. 670). 2. Our statue regulating the manner of proving certain matters contains this provision, to-wit: “Evidence may be given on the trial of the following facts: * * (8) The testimony of a witness, deceased or out of the State, or unable to testify, given in a former action, suit, or proceeding, or trial thereof, between the same parties, relating to the same matter.” Section 718, B. & C. Comp. As the trial herein was not between the same parties as in the Savage case, though the issue there involved related to the same matter as in the case at bar, the testimony so objected to was inadmissible. For the error committed in permitting Mr. Breyman’s testimony to be read in evidence, the judgment is reversed, and the cause remanded for a new trial. Reversed.