Chew v. F. P. O'Hara & Co.

Waterman, J. [83] The first question raised is on the bill of exceptions. Within the time allowed therefor a bill of exceptions was signed by the judge who presided at the trial but as he refused to incorporate in it some matters which plaintiff claimed occurred between the judge and the jury, when that body was called into court during its deliberation [84] ■on the verdict, plaintiff procured another bill to be signed by two court bailiffs, who claim to have been bystanders, setting out those particular facts according to their version. We find the matter, contained in the bill signed by the bystanders, differs materially from that which was set forth in the one to which the judge refused his signature. Bystanders cannot certify a bill of exceptions unless the judge has refused to do so. The bill which they sign must show affirmatively that the judge has refused to indorse the correctness of its statements. Section 2835, Code 1873. The bill signed by the bystanders must be disregarded and in making this disposition of it we dispose, also, of the claimed errors founded upon, remarks by the court to the jury, when it was called in during its deliberations. No such Blatter appears in the bill signed by the judge. 2 I. We take up now the various errors in the order in which they are discussed. Plaintiff, the defendants, one Oowgill, and Mr. Lacey, an attorney, were in a room in the court house together at tire time when it is claimed the wrongful acts were done upon, which this action is based. Plaintiff testified that he was told at that time by some of the defendants that Lacey was not brought there as an attorney, but as a friend of the plaintiff. He was then asked by his counsel, “When you talked with Mr. Lacey, in that room, did you consider him there as between the parties?” An objection to this was sustained, and rightly What the witness considered was manifestly improper to go to the jury. 3 II. Plaintiff was asked whether he was not in the habit of conversing with a fellow clerk on the subject of lewd women. An objection to the question was overruled. If there was error in this ruling it was without prejudice, for plaintiff answered that he was not. [84] III. Defendant O’Hara was permitted over plaintiff’? objection, to state circumstances calculated to awaken, suspicion against plaintiff, which were told him by others. This [85] action is based on wantonness and malice. The motives of defendants were important to be shown. They had a right to show what caused them to act, even though this was something told by others. Van Tuyl v. Quinton, 45 Iowa, 459; 1 Greenleaf Evidence, section 101; 3 Addison Torts, 766. It is also insisted that it was- incompetent for this witness .to state that he 'believed, from what he heard and- knew, that plaintiff had stolen the money. His belief was an element of his defense, and he had a right to state it. 2 Greenleaf Evidence, 455; Browne v. Hickie, 68 Iowa, 330; Watson v. Chesire, 18 Iowa, 202. 5 IY. A witness was asked, on cross-examination by plaintiff, a number of questions with relation to a supposed embezzlement by one Ralph O’Hara from certain insurance companies. The court ruled out many of the questions. It might well have so disposed of all of then!. Ralph O’Hara was neither a party to, nor witness in, this action, and the offense inquired about, if any such was committed, had no connection with that charged against plaintiff. We may sa.y here there was no error in the court’s ruling that Epperson, one of the defendants, could not be asked as to what advice he received from his attorney, and that no foundation was laid for contradicting the witness Timbral in the matters, so far as material, asked of the witness Chew. 6 Y. The court instructed the jury in one paragraph that plaintiff could not recover save on proof of a conspiracy.. The case went to the jury as against the firm of El. P. O’Hara & Co. and the individual members only.. Each count of the petition was based on a conspiracy. The undisputed evidence shows that both members of the firm were present and took part in the transaction of which complaint is made. If anything unlawful was done by defendants on this occasion, it must have been through a combination such as the trial court told the jury Would be a conspiracy. It is urged by plaintiff that he should have [86] been allowed to recover the sum of one thousand dollars, if taken from him by duress. But, under the conceded facts, if there was duress it was on the part of all the defendants acting together in an unlawful combination. If the jury found there was duress, it followed, of course, that they must have found a conspiracy. The instructions could not have prejudiced plaintiff’s case. We find no substantial error in the record and the judgment is affirmed. Granger, J., not sitting.