Fernandez v. Cadierno Hermanos , 10 P.R. Fed. 422 ( 1918 )

Hamilton, Judge,

delivered the following opinion:

Upon the trial of tMs case tire jury rendered a verdict for the plaintiff of $175. Plaintiff, being dissatisfied, moved for a new trial upon two grounds: Pirst, that he was prevented from having a fair and impartial trial, due to surprise which •ordinary prudence could not have guarded against, from defendant’s tampering with plaintiff’s witnesses; and, second, that the verdict is against the law and instructions given by the court, in that expenses proved amounted to $700.

1. The rule and practice of this court provide that matters of fact, upon application for a new trial, shall be shown in detail by affidavit. (Pule 62.) In the case at bar the application is a motion under oath of the plaintiff’s attorney. ISTo reason- is given, but the facts upon the trial show that the plaintiff himself resides in a distant part of the Island. As the defendant does not insist upon this point, it will not be further noted.

2. The accusation that the opposite party has tampered with •one’s witness is a serious one. It must be shown by clear evidence or it will not be regarded. In the case at bar the tampering is stated, upon the argument, to have consisted in the fact ■that the defendant obtained from the witnesses for the plaintiff a statement of the account which was the basis of the bank-xuptcy proceeding now complained of. The statements in question seem to have been taken from the books of witnesses .-as creditors of the plaintiff, and there is no allegation that the hooks had been falsified in any way. The point seems, therefore, to be the technical one whether, after a witness is subpoenaed by one party, the other can get any information from him. The safe rule is for one party to have nothing to do with the other party’s witnesses after subpoena is served. This cannot he taken as an absolute rule, however, because, if it is literally enforced, all a party would have to do would be to subpoena the witnesses supposed to b'e material to the opposing side, arnd then not use them. This would be an abuse of process of the court, and could not be sustained. In the case at bar the plaintiff’s witnesses, who gave the statements complained of, joined with the defendant in the original bankruptcy proceeding, and were, apparently, associates, if not friends, of the defendant himself. What would be the proper course to pursue if they had been merely witnesses to the transaction, without any special tie to the defendant, need not be inquired into. Here they were such associates, and all the evidence that is shown is taken from books to which either side could have had access by subpoena duces tecum or otherwise. It is difficult to see how any actual harm resulted. If there had been any tampering with the witnesses the point might be different; but there is no evidence of this except the statement of counsel, who, from the nature of the case, must be proceeding- upon hearsay and his own belief rather than actual knowledge of the facts. Tampering with a witness is too serious a charge to be substantiated in this way. Upon the whole, therefore, it does-not seem that this point of tampering has been made out, and cannot be said, therefore, to have resulted in any unfairness in the trial.

3. How the jury got at the verdict of $115 is not apparent. The couid, arguendo, told them that there was evidence of $200 transportation expenses, and $500 in fees paid, and contracted to be paid, to attorneys; but the court did not tell the jury and could not properly Rave told the jury that they must believe that those expenses were actually incurred. The jury would seem to have found that they were not properly incurred, except -possibly $150 actually paid attorneys, and $25 paid for automobile hire. Of the $150 paid his attorney there can be no reasonable question, and none that this was on account of the charge actually made of $500. The fact that $500 were agreed to be paid, however, did not bind the jury. They may have found with propriety that that charge was too large for the small bankruptcy proceeding, and that less was proper. This the court would he unwilling to- disturb.

It would seem, however, that more than $25 must have been paid for automobile hire from Naguabo to San Juan. The evidence is that there were a number of trips taken, and there is no evidence that the plaintiff could stay in San Juan foi nothing.

On the whole, the verdict could, on the evidence, have fairly been for at least $250. The court is without power to increase the verdict, hut an order will be entered that unless the defendant consents within ten days to such increase, and to a judgment for $250, a new trial will be granted.

It is so ordered.