Hurlburt v. Hurlburt's Est. , 63 Vt. 667 ( 1890 )

ROWELL, J.

Ic is immaterial whether the offer of testimony from the witness Churchill was too broad or not, for his testimony itself was entirely in defendant’s favor. It is not the offer that vitiates, but the improper testimony obtained under it.

The court’s allowing the party calling the witness to impeach him by showing that he had made statements inconsistent with his testimony, is criticised, for that the court did not think the witness adverse, but only his testimony. But the court held the “ witness’s testimony ” adverse “ within the meaning of the statute relating to the impeachment of adverse witnesses.” The fair meaning of this is, that the court regarded the witness himself adverse and not his testimony merely.

Besides the presumption of death arising from unexplained absence for seven years, courts hold that certain other facts afford ground on which an inference of death more or less strong may be based; and one is, the cessation of communication with friends by letter. 2 Whart. Ev. §1277. The admission of the returned letter came within this rule, and was proper.

Defendant objected “to the substance” of French’s deposition, but pointed out no part of it as objectionable. This objection was too general, as a portion of the deposition was clearly admissible. In such case the court is not bound, on a general objection like this., to look into the deposition further, certainly, than to see that some of it is admissible ; but it is the duty of counsel to point out what they object to, and to state the ground and reason of their objection, that the court may know precisely what it is asked to rule upon. Webb v. Richardson, 42 Vt. 465.

We think that the testimony of the detective as to what the gambler and the bridgeman told him was inadmissible as being heresay.

When the question is whether a person acted prudently, wisely, or in good faith, the information on which he acted, whether true or false, is original and material evidence. 1 Greenl. Ev. §101. This is often illustrated in actions for malicious prosecution, and in cases of agency and of trusts.

So when the question is whether -one has acted with the requisite diligence, the information on which he acted may be shown. Thus, the question being whether an officer made due search to find a defendant to attach his body, it was held admissible to show what inquiries he made and what answers he received and that he searched accordingly. Phelps v. Foot, 1 Conn. 387.

So the statements of third persons may be received to show why certain action was taken, when the reason for the action is the thing to be proved. Thus, the question being why the witness refused a compromise proffered by the defendant and sued to collect his debt, it was held admissible to show that he did it because a correspondent wrote him that he believed the defendant could pay. Lewis v. Manly, 2 Yeates (Pa.) 200.

And Bacon says that speeches and discourses may be made use of by way of inducement or illustration of what is properly evidence. Abridgment, Evidence (K.) Thus, in Morris v. Lessee of Harmer's Heirs, 7 Pet. 554, a witness said he had heard Z “speak of the situation of the lots” in question; and this, being inconsequential, was treated as merely the introductory language of the witness.

But the statements under consideration do not come under any of these heads. They were used as the foundation of the search, and to give it added weight as evidence tending to show death at the time of disappearance, which they could not do except upon the ground and theory that they were true in point of fact. And we think that what the court said when they were admitted left the jury at liberty to act upon them as true if they believed them; for although the court said at first that they were not received as evidence of theiy truth, yet it also said that any facts relating to disappearance might be shown by reputation, and that the jury would have to weigh them for what they were worth, and on the whole say whether the man was dead or not.

But without this, the question'being whether dead or not, it was error to allow the witness to relate the story of his search based upon statements not proved nor admitted to be true. This was misleading and liable to result in a wrong finding. The truth of those statements, upon which the value of the search depended, should have been shown by proper evidence, and then those facts would have given legitimate weight to the search based upon them. Blit the statements themselves could not do this, nor show whether the search was intelligent or diligent, valuable or worthless, unless their truth was assumed.

Judgment reversed and cause remanded.