Harris v. Plant & Co. , 31 Ala. 639 ( 1858 )

WALKER, J.

— A ferry bond is not the bond of an officer, or a bond given in an official capacity; and, therefore, is not embraced by section 2154 of the Code, which authorizes suits upon certain bonds in the name of the person injured.

2. As the suit was commenced in the name of the person injured, an amendment, making it the suit of the probate judge, for the use of such person, was proper; and, being proper, was certainly permissible under section 2403 of the Code. — Governor v. Davis, 9 Ala. 917.

3. The complaint was against Mrs. Harris in her representative capacity, and not as an individual. The cause of action set forth in the complaint is against her in her representative capacity; and therein this case differs from those cited by the counsel for the appellant. The defendant is denominated administratrix, in the commencement of the complaint; and the cause of action is against her as administratrix, upon a liability of the intestate. The complaint contains all the requisites of a declaration at common law, charging the defendant in a representative capacity.

4. As the law existed before the Code, the representative of a deceased obligor and. the surviving obligor could not be joined as defendants in a suit upon a bond. — Gayle v. Agee, 4 Porter, 507; Murphy v. Bank, 5 Ala. 421; Bancroft v. Stanton, 7 Ala. 351. We do not decide, whether the law, in that particular, is changed by section 2143 of the Code. If the law in that respect is unchanged by the Code, the appellants cannot profit by the question ; because the complaint contains a substantial cause of action against both defendants, the objection was not made in the court below, where it might have been obviated by an amendment, and cannot be entertained when made for the first time on appeal. — Code, §§ 2403, 2143 ; Stewart v. Goode & Ulrick, 29 Ala. 476; Blount v. McNeil, 29 Ala. 473.

5. If we abide by the decision of this court, in the case of the Steamboat Farmer v. McCraw, 26 Ala. 189, we are bound to decide, that the court below erred in admitting the witness Skinner to testify for the plaintiff. In that ease, a witness, occupying precisely the same relation to the plaintiff with the witness in this case, was held incompetent, even under the rule adopted in section 2302 of the Code. In the absence of any statutory regulation, there are two classes of cases, in which, witnesses are incompetent from interest: 1st, cases in which the record may be used in evidence for or against a witness; 2d, cases in which the judgment will have-an immediate operation on his interests, otherwise than by becoming evidence for or against him. — Note to Bent v. Baker, 2 Smith’s L. Ca. 51. With the reservation that certain other provisions are not affected, section 2302 of the Code sweeps away entirely the latter of the two classes of cases, and makes the competency of witnesses, as to interest, depend upon the question, whether the verdict and judgment would be evidence for the witness in another suit. We decided, in Atwood v. Wright, 29 Ala. 346, that the test whether a verdict and judgment would be evidence for a witness, was the inquiry, would they be evidence against him if adverse to the party introducing him. That this is the correct test, there can be no doubt. “A person that hath no prejudice by the verdict can never give it in evidence, though his title turn upon the same point.” — Starkie on Evidence, part I., p. 196, § 62, and note n; 1 Greenleaf on Evidence, § 524.

If a verdict and judgment had been rendered against the plaintiff, in the case of the Steamboat Farmer v. McCraw, the record could not have been evidence in a subsequent suit by the same plaintiff against the owner of the flatboat, who had the plaintiff’s cotton in charge; nor could the judgment in this suit, in favor of the defendants, against the plaintiff!, have been evidence against the peddler, who had the plaintiff’s wagon and horses in charge. If the j udgment against the plaintiff were offered in evidence, to show that the loss of the cotton in the former case was not caused by the negligence of the steamboat officers, or that the loss of the wagon and horses in this case was not caused by the negligence of the ferry-keepers, the rejection of the evidence would be inevitable. The witness, being the defendant, could successfully maintain the inadmissibility of the record against him, upon the ground that the judgment was, as to him, res inter alios acta — that he was neither a party nor privy, and had had no opportunity to cross-examine witnesses, or to be heard. If the judgment had been against the plaintiff, it could not have been evidence, in a subsequent suit by the same plaintiff against the witness, to prove that the loss did not result from the negligence of the ferry-keeper; and so a judgment for the plaintiff could not have been evidence in a subsequent suit for the witness, to prove that the loss was occasioned by the negligence of the ferry-keepers, and, therefore, could not have been the result of his misconduct.

The three cases cited in support of the opinion in the Steamboat Farmer v. McCraw, are Farwell v. Hilliard, 3 N. H. 318; Gilmore v. Carr, 2 Mass. 171, and Witmer v. Schlatter, 2 Rawle, 359. We have no opportunity to examine the Pennsylvania case. In the New Hampshire and Massachusetts cases, it is simply decided, that where one has a distinct remedy for the recovery of a debt against two persons, a judgment against, and satisfaction by one, will discharge the other. In those cases, the judgment was evidence as a mere fact, necessary in making proof of payment, which was a good defense, with or without the judgment. In that sense, a judgment is evidence against all the world. But that is not the sense in which it must be evidence, in order to affect the competency of a witness under the Code.

The decision of this court, and the majority of the authorities elsewhere, are in favor of the proposition, that an agent or servant, having in his care the property of the plaintiff at the time when it is injured, is incompetent to testify for the principal or master, in a suit against a third person to recover damages for the injury, though there are respectable authorities the other way. — Otis & Jayne v. Thom, 23 Ala. 469; McGrew v. Governor, 19 Ala. 89; Bean v. Pearsall, 12 Ala. 592; Moore v. Henderson, 18 Ala. 232; Governor v. Gee, 19 Ala. 199; Barney v. Earle, 20 Ala. 465; Howell v. Cincinnati Ins. Co., 7 Ham. 401; Johnson v. Harth, 2 Bailey, 183; Dudley v. Bolles, 24 Wend. 465 ; see, also, the cases collected and discussed in the American note to Smith’s Leading Cases, vol. 2, p. 54; and see C. & H.’sNotes to Phillips on Ev. (Part I) 145-152.

The incompetency is placed, in the adjudged cases, upon the reason, given by this court in the case of Otis & Jayne v. Thom, supra, that a judgment for the plaintiff would contribute to place the witness in a state of security, against any action which the plaintiff might bring against him; and not that the verdict and judgment would be evidence for him. On the contrary, it is said by this court, in Bean v. Pearsall, supra, that the judgment would not be evidence for the witness; and we find the authorities cited below concurring with what is said in that case. — 1 Greenleaf on Ev. § 396 ; Harding v. Cobley, 6 Car. & P. 664 ; Mitchell v. Hunt, ib. 351; Harrington v. Caswell, ib. 352; Smith’s Leading Cases, supra.

We are thus led by authority, as well as our reasoning, to the conclusion, that the older case of Bean v. Pearsall is correct, in denying that the verdict and judgment would be evidence for the witness; and that the decision in the Steamboat Farmer v. McCraw, so far as it holds the contrary, is wrong. We, therefore, as to the point now under consideration, approve of and adhere to the doctrine of the older decision; and hold, that the court below did not err in ruling in favor of the competency of the witness.

7. The lessee of the ferry, tvho had charge of it under his lease, and was receiving tolls at the time of the loss of the plaintiff’s property, was certainly bound to indemnify the lessor against any damage resulting from his negligence ; and as the lessee had notice of the proceeding, he would not only be liable over to the defendants, but the verdict and judgment rendered against them -would be evidence against him, and, if otherwise, evidence for him, completely shielding him against any suit by the plaintiff. 1 Greenleaf on Ev. §§ 393, 394.

The judgment of the court below is affirmed.