Bright v. Virginia & Gold Hill Water Co.

HUNT, Circuit Judge (after stating the facts as above). [1] The plaintiffs contend that the court erred in excluding the testimony of Mrs. Raffetta, called to prove that between 1880 and 1884, when she was living upon the ranch, which then belonged to her husband and herself, and afterwards passed to Garavanto, Mr. Raffetta and Gara-vanto and Mr. Overton, as superintendent of the defendant corporation, since deceased, made an oral agreement whereby the defendant corporation would give to Raffetta all the water he wanted for his ranch, provided Raffetta did not bring action to enforce damages done by overflow of one of defendant’s ditches. The District Court held that under section 477 of the Nevada statute (Rev. Daws, § 5419) the witness could not testify. Section 477 provides: “No person shall be allowed to testify (1) when the other party to the transaction is dead.” In Roney v. Buckland, 4 Nev. 56, the court, discussing an earlier, but somewhat similar, Nevada statute, said: “The answer is obvious: Because the Legislature, doubtless, deemed it injudicious and unjust to allow a person to testify in his own behalf about a transaction when the other person actually engaged in it is unable to appear by reason of death.” Crane v. Closter, 13 Nev. 280, and Vesey v. Benton, 13 Nev. 284, were also under earlier statutes and prior to the section as herein-before quoted. Burgess v. Helm, 24 Nev. 242, 51 Pac. 1025, was decided after 1881, and is to be distinguished, in that the testimony there admitted was not from a party to the transaction, but from a disinterested person as to admissions made by a party subsequent to the transaction. In Bagby, Adm’r, v. American Surety Co., 161 Ky. 78, 170 S. W. 492, the Supreme Court of Kentucky said of a generally similar statute: “The whole object of the Code provision is to place the living and the dead upon terms of perfect equality, and, the dead not being able to testify, the living shall not.” See Edmonds v. Scharff (Mo.) 213 S. W. 823. Some cases hold that one who acts as agent for another in the mak--ing of a contract is not a party thereto, within the meaning of a statute [413] forbidding the survivor to testify when one party to a contract or cause of action is dead, and hence such agent is competent. 40 Cyc. 2299; Clark v. Thias, 173 Mo. 628, 73 S. W. 616; Beaston v. Portland Trust & Savings Bank, 89 Wash. 627, 155 Pac. 163, Ann. Cas. 1917B, 488. But the better reasoning seems otherwise. Carroll v. United R. Co., 157 Mo. App. 247, 137 S. W. 303; Edmonds v. Scharff, supra; Williams v. Edwards, 94 Mo. 447, 7 S. W. 429. The underlying purpose of the statute being to prevent one from testifying in his own behalf about a transaction when the other person actually engaged in it is dead, we cannot see how a distinction may well be drawn between the agent of a corporation acting solely for his company and one acting in his individual capacity. See cases already cited. Jones on Evidence, vol. 4, § 785, considers the meaning of the word “transaction,” as used in a statute such as is under consideration, and defines the general policy as excluding the evidence of an interested witness concerning any transaction between himself and a deceased person, or in which the witness in any manner participated and all communication between the person deceased and the witness, including communication in the presence or hearing of the witness, if he in any way was a party thereto, or communications to either one of two or more persons, if all were interested. “Transactions and communications embrace every variety of affairs which conform the subject of negotiation, interviews or actions between two persons and include every method by which one person can derive impressions or information from the conduct, condition or language of another.” In view of the policy of the statute we must hold that there was no error in the ruling which excluded the proof offered. After excluding the evidence the court submitted to the jury such other evidence as there was upon the question whether there was an oral agreement as alleged between Garavanto and the defendant company, and charged that while there was no direct evidence of such an oral contract there was circumstantial evidence proper for their consideration. We need not detail the testimony, for the verdict of the jury #as against the plaintiffs, and thus it was determined that the oral contract did not exist. Plaintiffs say, however, that the Garavanto contract might and should have been disregarded “as surplusage,” in that it could amount to nothing more than a “waiver of tolls” and “of compliance with regulations, etc., exacted of ordinary customers,” and they argue that there was a relation of public service corporation and customer; that there was a “tortious diversion of the water,” which was actionable as a breach of public duty, regardless of the existence or nonexistence of any contract, and that there was a waiver of conditions in the four-inch contract. While the position just stated is a departure from that relied upon until after the court excluded the testimony of Mrs. Raffetta, we pass possible question of estoppel by reason of inconsistent attitudes, and briefly inquire into the merits of the contention. By the terms of the 4-inch contract as pleaded by way of counterclaim defendant was to furnish for plaintiffs’ ranch a limited quantity of water at a certain rental. Plaintiffs denied the existence of the alleged contract or that [414] •any water was furnished except under the agreement pleaded in their ■complaint. Defendant’s evidence, tending to support the fact that there was such a contract, was that defendant sold water, about 4 inches, to the Bright ranch for 11 years prior to the time of trial of an action, which had been brought in the state court, under an arrangement made between the water company and a Chinaman, formerly on the ranch, but that, when the agreement for the supply of water expired, Overton, deceased superintendent of the defendant company, declined to make further agreement with the Bright ranch, or with the Chinaman, though the defendant continued to supply the same quantity of water to the ranch from year to year on the same basis as theretofore. The water supplied, according to the testimony of Superintendent Leonard, was under the lease; it came from tanks, the intake of which ran across Washoe Valley, about 2 miles ábove^ the Raffetta ranch. From the tanks defendant had a flume, about 4,000 feet long, which took the water from the overflow and carried it into a canyon, and from the canyon it ran down to the Raffetta ranch. Witness said that there had been difficulty concerning the water between Raffetta and the company, and that he knew water was needed for irrigation in 1913, and that four inches of water were not sufficient to irrigate the land; that often more than 4 inches flowed; that the water was brought down from a lake to the intake of defendant’s syphon, where there is an overflow box; that it flowed down from the overflow point when plaintiffs pay for it, but that defendant ceased to continue to deliver, because the Bright people were in arrears in the sum of $98 for 1911 and 1912 rentals, and that, although the owners were notified that if the bill was not paid the company would not supply water for 1913, nothing was done by the ranch owners; that in 1913 water was low; that explanations were made to Mrs. Bright at the time, and that effort was made to arrange with her to take the 4 inches of water from a hose connection at Lakeview, but that she declined it, and ordered- water shut off, with the result that she lost her crop. The superintendent also said that the surplus water which came from the flume in 1913 would not reach the ranch in the summer, and that an overflow had to be created from Marlette Lake in order to deliver water to either one of the ranches. [2] The court did not overlook the relationship of the defendant as a public service corporation, for it carefully instructed that to the extent of its ability defendant was under obligation- to supply water to those who demanded it and paid therefor; that the consumer had a right to have water and as long as he paid current installments and otherwise conforms to reasonable regulations governing the supply; but that where the price of water had been agreed upon the law would presume a promise to pay the rate as agreed, and if the consumer refused to pay the company would be justified in shutting off the water. Again, the court charged that if the defendant notified the plaintiffs that, unless the amount due under the agreement, if there was such agreement, was not paid, defendant would not furnish any more water, and that if plaintiffs failed to pay defendants could not be held liable for damages. The court also charged that the defendant [415] could not deprive the plaintiff of such water merely because the company did not have sufficient waste water or sufficient water to supply all its customers, provided the jury found that plaintiffs were entitled to the water claimed by them in their complaint. The jury found that the 4-inch contract was made, and that under it plaintiffs owed defendant $98.53. We cannot see that there was any waiver of the obligations under the contract. There was evidence that plaintiffs in July, 1913, asked for as much water as possible to be furnished by hose discharge from Lake View station to augment tank overflow, and that defendant’s superintendent by letter consented, provided it was not to be construed as an admission of plaintiffs’ right to have the water when defendant needed it for its business. Surely the act of defendant’s superintendent was not a waiver of any of its rights in this litigation, and the requested instruction to the effect that merely furnishing water in 1913 constituted a waiver would have been misleading. The court was right, we think, in refusing requests presenting general rules concerning the appropriation of water, and the general obligations of public service corporations with respect to the furnishing of water.- The duty of defendant in the premises was sufficiently defined in the charge given, which was relevant, to the issues of the case on trial. Other requested instructions included the proposition that, while public service corporations could make and enforce reasonable rules and regulations, the question of the observance or violation of rules or regulations was not a matter involved in the case and could not be considered by the jury. In view of the issues presented by the pleadings, our opinion is that the request did not state the law correctly, and that the court was right in charging that defendant was justified in refusing to furnish the water, if, after notice, plaintiffs refused to pay, provided the contract existed as pleaded. By another request plaintiffs asked the court to charge that the question involved was whether plaintiffs were entitled to water from the water system, and not whether or not any water delivered to or used by plaintiffs from defendant’s water system was waste water, and, furthermore, that if plaintiffs were entitled to water, it was immaterial whether the watef was waste or live water, and that if defendant had not sufficient waste water to supply plaintiffs’ right, if any right they had, up to the limit thereof, it was defendant’s duty to let down and discharge live water to plaintiffs up to said limit. There was no error in refusing the request, because the court instructed fully that, if the defendant made a contract for delivery of water to the plaintiffs, it must live up to it, unless by the refusal of the plaintiffs to pay the rental the defendant rightfully cut off the water after notice that, unless the arrears were paid up, the supply would be shut off. We have, carefully considered other points presented, and find no ground for disturbing the judgment. The judgment is affirmed.