Bates & Bates v. Steamboat Madison , 18 Mo. 99 ( 1853 )

RviAND, Judge,

delivered the opinion of the court.

1. From the statement in the case, it will appear, at once, that the facts of this case are very similar to those of the case of Wells against the Steamboat Madison, reported in 14 Mo. Rep. 360, and decided by this court at the March, term, 1851. The questions arising here are, in some respects, the same as those in the case of Wells v. Steamboat Madison — the admissibility of the witness, Sturgeon, and the witness Thomaá Rawlings. In delivering the opinion of the court, in the case of Wells and the Boat, I used the following language : ££I am satisfied that, under the provisions of the new code of practice in courts of justice, the witness, Sturgeon, was competent, and his testimony ought to have been received. This, too, without any other substitution in the forthcoming bond. Sturgeon was not a party; he was only liable upon a contingency, and this liability affected only his credibility ; did not extend his competency.”

2. In the opinion of this court, the witness, Sturgeon, was, without doubt, competent. He had no direct interest in the event of the action; it was not prosecuted for him. In any event his liability was but contingent. The new code has done away with the objection to a witness on account of his interest. He must be a party to the action, or a person for whose immediate benefit it is prosecuted or defended; or an assignor of a thing in action, assigned for the purpose of making him a witness, in order to be incompetent as a witness. Now, neither Sturgeon nor Thomas Rawlings stand in this condition before the court. They were, then, competent witnesses, each one. The design of the new code, in this particular, being to do away with the objection to witnesses, on account of interest, in order to support such an objection, the party offered must stand in the attitude mentioned in the statute, before he can be legally excluded as such. He must be a party, or one for whose immediate benefit the suit is prosecuted or defended, or an assignor, as pointed out in the act. This court will not add to this list of incompetency, nor seek to embrace doubtful cases within the range or circle of the list. These points, then, are ruled for the defendant below.

3. The instructions given by the court to the jury sufficiently explained the law of the case to them. These instructions properly left the case, with the law thereon arising, fully and fairly explained to the jury, and they were enabled to determine the controversy between the parties, understandingly. Such being the case, this court will not interfere. The judgment of the court below is, therefore, affirmed,

with the concurrence of the other judges.