Carwille v. Franklin

SAYRE, J. Appellant, a.s the administrator of Z. T. Carwille, deceased, sued appellee for the hire of a pair of mules, wagon and harness. The deposition of Mrs. Fitzgibbons was taken by plaintiff, and in her cross-examination it appeared that she was the next of kin to plaintiff’s intestate. After the deposition had been read in evidence by plaintiff, then on defendant’s motion so much of it as related to the making of an alleged verbal contract , of hiring between plaintiff’s intestate and the defendant was excluded by the court, on the ground that-the witness had a.pecuniary interest in •the- result of the suit -and was disqualified by the statute. — Section 4007 of - the Code of 1907. It - is not denied that the testimony would have been subject [545] to a timely objection; but it is said, that tlie objection bad been waived, because not made before tlie trial was entered upon. Section 4042 of the Code requires all objections to the admissibility of the entire deposition to be made before entering on the trial, unless the ground of objection appears after the commencement of the trial. It has been held that the general incompetency of the witness, as, for example, that he has been convicted of a felony, is such an objection as must be made under the statute. — Planters’ & Merchants’ Insurance Co. v. Tunstall, 72 Ala. 142. But the witness here had testified to other material facts, and the objection was to a part of his testimony only. Clearly,'then, the statute had no application. But the objection was directed against the competency of the testimony and incompetent under the statute first above referred to it was admitted to be. The administrator must have known the fact when he propounded interrogatories. The testimony ivas illegal, and could not be cured by a re-examination of the witness. The reason, therefore, of the rule which requires objections to the admissibility of evidence to be made at the earliest opportunity does not obtain. It was the duty of the court at any stage of the proceeding to exclude irrelevant or illegal evidence, for the reason that its infirmities were not capable of being removed. — McCreary v. Turk, 29 Ala. 244; Whilden v. M. & P. Bank, 64 Ala. 31, 38 Am. Rep. 1; Sowell v. Bank of Brewton, 119 Ala. 92, 24 South. 855. Cases like Gray v. Brown, 22 Ala. 262, cited by appellant — there are a number of them — were decided before the amendment of the statute concerning the competency of witnesses as affected by interest, which enacted that an incompetent witness should not make himself competent by transferring his interest to another. The reason given for those decisions was [546] that the party offering the deposition should have an opportunity to release the witness, which he might do at any time before the examination was completed, bal of which right he would be deprived if induced to repose upon the legality of the testimony by the failure of the opposite party to object until the trial. The reason of those cases having failed, they can no longer be regarded as authority. Plaintiff filed interrogatories to the defendant under the statute. The defendant, answering, stated facts which, if true, destroyed plaintiff’s asserted right to recover. But these facts had not been asked for. At the trial plaintiff moved to strike those parts of the deposition which was not responsive. On reasons which will be found stated at considerabel length in Saltmarsh v. Bower, 22 Ala. 221, it was held that a party had the right to state facts pertinent to his suit or defense when examined by his adversary, though not responsive to interrogatories propounded. That case was followed until the decisions in First Nat. Bank v. Leland, 122 Ala. 289, 25 South. 195, and Garrison v. Glass, 139 Ala. 512, 36 South. 725. In Sullivan Timber Co. v. L. & N. R. R. Co., 163 Ala. 125, 50 South, 941, the Leland and the Garrison! Cases were overruled. And in Prestwood v. Carlton, 162 Ala. 327, 50 South. 254, the court repeated the reasoning and the conclusion of the earlier cases. They are not cited in the opinion, but all the previous cases were considered by the court. Something, the writer thinks, may be said in favor of either position; but the question involved relates to a matter of practice, which it is more important to have settled than that it should be settled exactly as it ought to be. It is settled. There Avas no error. The evidence which the court finally took into consideration shoAved only that after the death of plain [547] tiff’s intestate defendant was found in possession of tin-wagon and team, and that a little later he returned them to the custody of the plaintiff. There was no proof that defendant came into possession wrongfully, or of the terms upon which he came into possession. The burden of proof rested upon the plaintiff. The court could not assume that defendant's possession was wrongful, or that he held possession under an agreement to pay for the use of the property. As consistently with the evidence the defendant held the property as a bailee without hire. Affirmed. Dowdell, O’. L, and Anderson and Evans, JJ., concur.