Johnson v. Henderson , 3 Cal. 368 ( 1853 )

Heydenfeldt, Justice,

delivered the opinion of the court. Murray, Chief Justice, concurred.

The declaration is evidently in tort, .and the defendants are charged as joint tort-feasors. This being so, it is urged that the court erred in refusing the evidence of the defendants for one another.

The defence is the same, both admitting that they drove the horses, and simply denying that they drove unreasonably or violently. It is very certain, then, that this was the point to be established by their evidence, as they must have been confined to the issue. They were together, each driving in separate vehicles, going the same journey in the same time, and the evidence of each one must have availed himself as much as his co-defendant. When this happens, we have always held the witnesses incompetent. It is probably seldom, in actions of tort, that this will occur, and when it does, it must generally result from the state of the pleadings.

Judgment affirmed.