Victor Talking Mach. Co. v. Straus

PER CURIAM. At trial plaintiffs in error asked certain witnesses certain questions; objections being made, the questions were disallowed. In assigning these rulings for error there has been added to each assignment a statement (in substance) of what it was hoped or expected the witness would have said, had he been permitted to answer. These are the statements against which this motion is directed. At no time did plaintiffs in error present to the trial court any “offer of proof” or “offer of evidence” covering the substance of what it was hoped or expected to prove by answer to the questions rejected. The statements in question have been inserted in assumed compliance with rule 11 of this court (150 Fed. xxvii, 79 C. C. A. xxvii), which declares that— “Wien the error alleged is to the admission or to the rejection of evidence, the assignment of errors shall quote the full substance of the evidence admitted or rejected.” This language is found in the rule of most, if not all, of the Circuit Courts of Appeals, and is taken almost word for word from rule 21 of the Supreme Court of the United States (32 Sup. Ct. x). It has been construed in Smith v. Hopkins, 120 Fed. 921, 57 C. C. A. 193, and cases cited; and the twenty-first rule of the Supreme Court is treated in Buckstaff v. Russell, 151 U. S. at 636, 14 Sup. Ct. 448, 38 L. Ed. 292. The substance of these rulings is that, where the evidence rejected is documentary, or an offer of evidence is made by the excepting party and rejected by the trial court, such document or offer must be embodied in the assignment of errors based upon the rejection. But where a question is asked, and no answer is permitted, there is no evidence to “quote,” and the question for the reviewing court is whether the excluded question was “so framed as to clearly admit of an answer favorable to the claim or defence” of the interrogating party. The statements complained of are clearly not rendered necessary by the rule and should be stricken out. Motion granted.