Wakin v. Wakin ( 1915 )

Wood, J.,

(1) (after stating the facts). Sam Hami-sey was 19 years of age. It must therefore be presumed that he had common discretion and understanding until the contrary appears. There is nothing in the record to show to the contrary. But his testimony does show that he had sufficient natural intelligence and had sufficient understanding to apprehend the nature and effect of an oath. When such is the case, a witness should be allowed to testify. See Flanagin v. State, 25 Ark. 92.

(2) The question of this witness’ competency was addressed largely to the discretion of the trial judge, and “in the absence of clear abuse or manifest error the judicial discretion is not reviewable.” Crosby v. State, 93 Ark. 158.

The presumption of competency was not 'overcome by an examination of the witness touching his sense of a moral responsibility to tell the truth'under oath, and nothing was elicited tending to show that the witness 'did not understand that he was under a moral as well as a legal obligation to tell the truth under oath. The court did not err therefore in admitting his testimony.

(3) The appellant contends that the court should have 'given a peremptory instruction in his favor. He contends that appellees were wholly disconnected with the contract which they alleged was broken and that a violation of the contract by Hamisey was not the proximate cause of any damage to them. In Mahoney v. Roberts, 86 Ark. 130, we held: “That persons who aid another to violate a contract -with a stranger, whether for the purpose of injuring the latter or for the purpose of obtaining some benefit for themselves at the latter’s expense, to his injury, are guilty of an actionable wrong and are liable for damages.”

The contract between Hamisey and the Kuhls and the State of Texas, evidenced by the bonds and the contract between the Kuhls and appellees were so interrelated that a violation of the obligations of the bond by a failure of Hamisey to make his appearance necessarily matured the liabilities of the appellees to the Kuhls under the mortgage. The testimony tended to show that the appellant and Hamisey knew that these contracts were made at the same time, and that they knew the purpose of both contracts. Therefore, when appellant induced Hamisey to violate the provisions of his bonds, as the jury were warranted in finding, this violation was the proximate cause of the damage which the appellees sustained by reason of the violation of such bond and for which, under the doctrine in Mahoney v. Roberts, supra, the appellant was liable. The instructions of the court were therefore correct.

We have considered the objection urged to certain remarks of counsel and find no reversible error in the ruling of the court concerning the same, and we do not deem them of sufficient importance to set forth in the opinion.

The judgment is correct and it is accordingly affirmed.