Opinion
No. 2912
August 6, 1932.
APPEAL from Second Judicial District Court, Washoe County; G.A. BALLARD, Judge presiding.
Frame Raffetto, for Appellant:
W.M. Kearney and Sidney W. Robinson, for Respondent:
It was manifestly error for the trial court to deny plaintiff's challenge to juror Caton. It is clear that the prejudice existing in the mind of the juror against common-law marriages was such as to amount to actual bias, and the juror should have been excused upon that ground. Also, the business relations existing between the juror and the defendant, together with the fact that an officer of the bank in which the juror was employed and of which defendant was a patron testified as a witness in behalf of defendant, are likewise sufficient and did constitute implied bias, sufficient to raise a just inference that the juror would not be entirely impartial. While plaintiff did challenge the juror Caton peremptorily after the denial of her challenge for cause, this was the fourth and last peremptory challenge the plaintiff had.
In view of the fact that the juror Yori was disqualified for actual bias upon the same ground as juror Caton, having also expressed a prejudice against common-law marriages, and, in addition to this, inasmuch as Mr. Kearney, one of the attorneys for defendant, represented a holding corporation composed of Mr. Yori and members of his family, which in reason and justice and to all intents and purposes showed the existence of the relation of attorney and client, the same was sufficient to raise the just inference that the juror would not be entirely impartial. Therefore it was error prejudicial to plaintiff to deny her challenge to the juror Yori, inasmuch as her challenge to the juror Caton exhausted the peremptory challenges of plaintiff, and she did not have any to exercise on Yori.
It was prejudicial error to admit the testimony of the witnesses Reber and Harrington. We contend that defendant cannot be permitted to hold out and act out and make apparent a status that did not exist in fact, and then, by his uncorroborated declarations, destroy the effect of that which by his acts he had solemnly declared. Keezer on Marriage and Divorce, sec. 74, pp. 91, 92; Clark v. Clark, 44 Nev. 44, 189 P. 676; Stripe v. Meffert, 229 S.W. 762; Hummel v. State, 126 N.E. 444; State v. Hughes, 12 P. 28; McClurkin v. McClurkin, 90 So. 917; Jackson v. Jackson, 113 A. 495; Mickle v. State, 21 So. 66.
Neither of the talesmen, Mr. Caton nor Mr. Yori, served upon the jury, Mr. Caton being challenged on the first and Mr. Yori having been challenged on plaintiff's second peremptory challenge. There is no showing whatever of any prejudice; no showing that because of the exercise of these challenges the statutory number of peremptory challenges was exhausted.
The application for insurance was a writing exclusively between Mr. Quinn and the insurance company; Mrs. Quinn, the appellant, was not a party to it. In such cases the law is well settled that a third party cannot complain if either party to the writing gives oral testimony to contradict the statements on the face of the writing. Travis v. Epstein, 1 Nev. 94; Goodman v. Reinowitz, 95 N.Y.S. 534.
A writing which does not vest, pass, nor extinguish any right, either by contract, operation of law, or otherwise, but is used as evidence of a fact, and not as evidence of a contract or right, may be susceptible of explanation by extrinsic circumstances or facts. In Re Baird, 245 Fed. 504; Smith v. Natl. Surety Co., 149 P. 1040; Winter v. Friedman, 97 N.Y.S. 733; Davidge v. Velie, 160 N.Y.S. 820.
Where the writing, as here, merely included the mistaken fact, it would seem that abstract justice would permit the explanation given in the deposition of Mrs. Harrington. Thompson v. McClenachan, 17 Serg. R. (Pa.) 110.
It seems to be well settled that declarations of a man that he was not married are proper evidence of his intent. Sharon v. Sharon, 22 P. 26, 131; Henry v. McNeilly, 50 P. 37; Dowdy v. Hesters, 130 Ga. 161, 60 S.W. 451; Topper v. Perry, 95 S.W. 203; Imoden v. St. Louis Trust Co., 83 S.W. 263; Crawford v. Blackburn, 77 Am. Dec. 323; Barnum v. Barnum, 42 Md. 251; Central Trust Co. v. Culver, 83 P. 1064; Stall v. People, 30 P. 64; Denver v. Jacobson, 30 P. 246; Mutual Insurance Co. v. Hillmon, 145 U.S. 285.
OPINION
This is a suit for a divorce tried with a jury. It was alleged that the parties entered into a common-law marriage in October, 1924, they having theretofore had a ceremonial marriage which was dissolved by a decree of court in September of the same year.
The plaintiff in the court below being the appellant here, the parties will be referred to as they were designated in the trial court.
The jury having brought in a verdict in favor of the defendant and judgment having been entered accordingly, an appeal was taken.
It is contended that the court erred in denying plaintiff's challenges for cause to jurors Caton and Yori, in admitting the deposition of Mabel Harrington, and in admitting the testimony of the witness Reber.
1, 2. While we do not think the court erred in overruling the challenges, we do not find it necessary to decide the point, for the reason that it appears from the record that both of the jurors mentioned were peremptorily challenged by the plaintiff and it does not appear from the record that plaintiff exhausted her peremptory challenges before the jury was accepted. In this situation she cannot complain. State v. Hartley, 22 Nev. 342, 40 P. 372, 28 L.R.A. 33. Nor could there have been any prejudice if an impartial jury was obtained, which is not denied. State v. Larkin, 11 Nev. 327; Sherman v. S.P. Co., 33 Nev. 385, 111 P. 416, 115 P. 909, Ann. Cas. 1914A, 287.
3. The court did not err in admitting in evidence the deposition of Mrs. Harrington. In April, 1926, she obtained from defendant an application for life insurance, in which the plaintiff is named as beneficiary. The application states that the beneficiary was the wife of the defendant. Mrs. Harrington testified that the application was written entirely by herself, except the signature of the defendant. She also testified that in response to the question in the application, "What is the relationship of the beneficiary to you?" she wrote, "Wife"; that he (the defendant) "said not to put wife. They were divorced. * * * But I put it anyway. I should have put `ex-wife' or `divorced wife,' but I didn't think fast enough."
Mrs. Harrington's testimony is objected to on the ground that it tends to contradict a written instrument and that it is self-serving. We do not think the statement can be said to be objectionable as a self-serving declaration, for the reason hereinafter given in relation to the testimony of the witness Reber. Nor do we think it is objectionable on the ground that it tends to contradict a written instrument. The rule relied upon applies to writings signed by both parties to the litigation or their representatives, and by which both are bound. The plaintiff did not sign the application and was not bound by the statement of the defendant. Bank of California v. White, 14 Nev. 373; 2 Abbott's Trial Enc. (4th ed.) p. 883. See, also, 5 Wigmore on Ev. (2d ed.) sec. 2446.
4. We do not think the court erred in admitting in evidence the testimony of the witness Reber. The witness testified that at the time at which the conversation to which he testified to was had with the defendant, which was about six months after the divorce, the plaintiff was running the Vendome Hotel, and the defendant the Grand; that he was rooming at the Grand; and that on the occasion in question he stated to the defendant, "You look to me as though you are sneaking back," to which the defendant replied: "Not by a damned sight. There is no such thing as a marriage for me again."
While the authorities are divided on the question, the decided weight of authority is in favor of the admission of such declarations, though they are held to be entitled to but little weight when not made in the presence of the other party. 1 Abbott's Trial Ev., sec. 154; Beck v. Utah-Idaho Sugar Co., 59 Utah, 314, 203 P. 647; Coleman v. James, 67 Okla. 112, 169 P. 1064; In Re Foley's Estate, 76 Colo. 286, 230 P. 618; Topper v. Perry, 197 Mo. 531, 95 S.W. 203, 114 Am. St. Rep. 777.
For the reasons given it is ordered that the judgment be affirmed.
ON PETITION FOR REHEARING
December 12, 1932.
Rehearing denied.