Rees versus Livingston

Supreme Court of Pennsylvania1861-11-18

41 Pa. 113

Summary · law.co

Holding. The judgment of the lower court is affirmed. The trial court properly admitted Thompson Bell and William B. Scaife as witnesses, and the defendant waived his right to object to Scaife's testimony when he used it in his own argument without moving to strike it upon discovery of the conflict of interest.

The court addressed whether certain witnesses were properly admitted in a trial involving competing claims to a fund. Thompson Bell was unquestionably competent as a witness because he had no direct stake in the outcome. William B. Scaife was initially objected to on grounds of interest, but the court properly allowed his testimony while instructing the jury to disregard it if they found his interest favored the plaintiff. When it was later discovered that Scaife's wife had an interest in profits from the fund, the defendant failed to move for the exclusion of Scaife's testimony at that time. Instead, the defendant used the testimony in argument before both the court and jury, thereby waiving any objection to it.

The court held that once the defendant strategically employed Scaife's testimony for his own purposes without timely objecting to the newly discovered conflict, he could not later complain that the jury was not instructed to disregard it. A question posed to witness Bradley about the purchase of goods for the trust before controversy arose was also proper. The lower court's judgment was therefore correct.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Competency of witnesses based on interest in the outcome
Waiver of objections through use of testimony
Effect of discovering a witness's disqualifying interest after testimony is given
Jury instructions regarding testimony of interested witnesses

Procedural posture

The case was tried in the lower court, and the defendant appealed on assignments of error regarding the admission and treatment of witness testimony.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

The opinion of the court was delivered,

by Strong, J.

That Thompson Bell was a competent witness for the plaintiff below, admits of no doubt. When called to testify, he had no direct interest in the event of the suit, and no rule of policy exists which would have justified his exclusion: see Gillespie v. Miller, 1 Wright 247.

The principal difficulty in the case arises out of the facts that William B. Scaife was admitted as a witness for the plaintiff, and that his testimony was not withdrawn from the jury at the request of the defendant. He was first objected to on the ground of interest alone, and the objection was overruled. It is far from being clear that if he had any interest at all, he had not a greater interest on the side of the defendant. It would rather seem that he had. There must be a certain and preponderating interest to justify the exclusion of a witness. Such, it is certain, was not shown in this case, and the court was, therefore, right in permitting the witness to testify, at the same time instructing the jury that if they found his interest in favour of the plaintiff was greater than any which he had in favour of the defendant, they should reject the testimony altogether.

A graver question subsequently arose, after his testimony had been given. In a late stage of the trial, it appeared that the witness had a wife living, who was interested, not in the fund which the plaintiff claimed, but in profits which it might yield after the payment of interest. Probably she would not have been a competent witness for the plaintiff on account of her interest, and, of course, her husband would not have been, on account of the policy of the law.

But, if the defendant desired to avail himself of this newly discovered disability, then, when the fact was revealed that the witness had a wife interested, was the time at which he should have moved the court to strike out the testimony. Instead of doing so, he undertook to use it. He permitted the case to close, and argued upon the effect of what the witness had stated both to the court and to the jury. After having done that, he cannot complain that the court, in their charge, refused to instruct the jury to disregard it. Having used it for his own purposes, without raising the objection which he knew to be fatal to it; having taken the chance of influencing the jury by it favourably to himself, he thereby waived his objection, and passed his time. We think, under the circumstances, the action of the court was right.

The question addressed to the witness Bradley was entirely proper. It related to the purchase of the goods for the trust, before tbe execution of the defendant was issued, and before any controversy had arisen, and it sought only a disclosure of a part of the circumstances of the purchase.

The fourth and fifth assignments of error are disposed of by that class of cases, beginning with Holdship v. Patterson, 7 Watts 547, and ending with Brown v. Williamson, 12 Casey 388. The assignments are not sustained.

Judgment affirmed.