ORAL W. TUCKER, as Executor of the Estate of GEORGE P. LYMAN, Deceased, Appellant,
THOMAS S. REIL, Appellee
APPEAL from a judgment of the Superior Court of the County of Pima. Elbert R. Thurman, Judge. Judgment reversed and cause remanded with instructions.
Mr. Leslie B. Allen and Mr. Joseph W. Meek, for Appellant.
Messrs. Misbaugh & Fickett, for Appellee.
[51 Ariz. 360] LOCKWOOD, J.
Thomas S. Reil, hereinafter called plaintiff, brought suit against Oral W. Tucker as executor of the estate of George P. Lyman, deceased, hereinafter called defendant, to recover the sum of $1,887, which it was alleged said estate owed plaintiff for personal services rendered, and for groceries and other merchandise furnished, to the said George P. Lyman during his lifetime. Plaintiff alleged in his complaint [51 Ariz. 361] that defendant was the executor of the estate of George P. Lyman, deceased; that he had published a notice to creditors as required by law, and that plaintiff had, within the statutory period, presented his claim to the executor for services and merchandise furnished to Lyman in his lifetime as aforesaid, and that defendant had refused to approve the claim, and denied liability thereon. The defendant demurred to certain items set up in the complaint on the ground that it appeared they were barred by the statute of limitations, and then answered, admitting his official capacity as executor, and that the claim had been presented, but denying all other allegations of the complaint, and again set up the statute of limitations as to that portion of the claim which it was claimed was barred thereby.
The case was tried to the court sitting with a jury, and judgment was rendered in favor of plaintiff for the sum of $1,080.The usual motion for a new trial was made, and was denied on condition that plaintiff would remit a certain amount from the verdict, and this being done, the motion was overruled, whereupon this appeal was taken.
There are some twenty-three assignments of error, several of which contain more than one matter, but we think there are only two questions which we need consider in determining the appeal: (1) Did the court err in admitting evidence of the contents of the will of Lyman? and (2) did it err in permitting plaintiff to ask of a number of defendant's witnesses as to whether or not they were members of the Seventh Day Adventist Church?
The complaint was for a recovery of the reasonable value of services rendered and merchandise furnished to deceased during his lifetime. It would appear, therefore, that the only matters necessary for plaintiff to prove to make a prima facie case were that the services and merchandise set up were really furnished [51 Ariz. 362] deceased during his lifetime, and the reasonable value thereof. The only defenses which could be made against such a case were that the services and goods had not been furnished; that they were not of the value alleged; that they had been furnished gratuitously; or that they had been paid for. It was utterly immaterial, so far as the case was concerned, whether the estate of deceased was solvent or not, whether it was small or great, or how he had disposed of it by will. If the allegations of the complaint were true, and the services and goods were not paid for nor furnished gratuitously, plaintiff was entitled to have his claim established by the court, regardless of the nature of the will of deceased or the size of the estate. There is one theory, and one only, upon which the evidence of the class to which we have referred could have had any bearing upon the real issues of the case. It might be said that if the deceased had willed most of his property to the Seventh Day Adventist Church, then witnesses of that religious faith who testified on behalf of defendant might, perhaps, be biased in their testimony for the reason that an allowance of the claim of plaintiff would reduce the amount of the estate passing to the church to which they belonged. Evidence tending to show that a witness has an interest in the result of a case is usually admissible as bearing on his credibility, and while it is perhaps extending the rule to the extreme limit to hold that the interest of a church in the indirect result of a lawsuit is of a nature which permits such interest and membership by the witness in that church to be shown, if it were not for one thing it might, perhaps, be held admissible for what it was worth. That one thing, however, is the Constitution of Arizona. Section 12 of article 2 of that Constitution reads, in part, as follows:
[51 Ariz. 363] "No religious qualification shall be required for any public office or employment, nor shall any person be incompetent as a witness or juror in consequence of his opinion on matters of religion, nor be questioned touching his religious belief in any court of justice to affect the weight of his testimony." (Italics ours.)
This is a direct prohibition against questioning any witness as to his religious belief, for the purpose of affecting his credibility. The language is positive and explicit. The only possible reason which can be advanced that it is inapplicable to the present situation is that an inquiry as to one's membership in a particular church is not questioning him "touching his religious belief." We think
such an argument untenable. The fact that a man belongs to a certain church is certainly presumptive evidence that he believes in the fundamental principles of that church. When, therefore, a witness is asked in regard to his membership in a particular church, he is, in effect, being questioned in regard to his religious belief. It was, therefore, erroneous for the court to permit plaintiff's counsel to question any of defendant's witnesses in regard to their religious affiliations. The only possible purpose of such a question would be to attack the credibility of such witnesses, and this the Constitution expressly prohibits. This being the case, it also follows that it was equally error to permit evidence to be introduced to the effect that the deceased had willed the bulk of his property to the Seventh Day Adventist Church, for except as a preliminary to the questioning of the witnesses as to their religious faith for the purpose of showing their interest, any reference to the terms of the will is irrelevant to any of the legal issues of the case. Indeed, counsel for plaintiff, on oral argument, did not seriously contend that the admission of such evidence was not erroneous, buy confined himself to insisting most vigorously that this error had been [51 Ariz. 364] waived by defendant through a failure to object at the proper time to the asking of the questions, and by himself introducing evidence of a similar character.
It is the general rule that unless objection is made to the admission of evidence it cannot be urged on appeal that it was error for the court to admit it. Santa Rita Land & Min. Co. v. Mercer, 3 Ariz. 181, 73 P. 398; In re Schuster's Estate, 35 Ariz. 457, 281 P. 38. It is also the usually accepted rule that where counsel has himself injected a certain issue into the case, he may not object because the other party also introduces evidence of a similar nature. Murphy v. Whitlow, 1 Ariz. 340, 25 P. 532; 64 C.J. 172, and notes. Let us, therefore, examine the transcript of the evidence to determine the proper application of the different rules of law which we have stated. Plaintiff called defendant for cross-examination witness as his first witness, under section 4416, Revised Code 1928, which reads are follows:
"Cross-examination of adverse party. A party to a civil action or proceeding, or a person for whose immediate benefit such action or proceeding is prosecuted or defended, or the directors, officers, superintendent or managing agent of a corporation which is a party, may be examined upon the trial thereof by the adverse party as if under cross-examination, and the party examining shall not be concluded by the examination. Such witness when so called may be examined by his own counsel, only as to the matters testified to on such examination."
We think that many counsel have misunderstood the true meaning of this statute. Its only effect is to permit the party calling the witness to ask leading questions, and to provide that he is not concluded by the answers of the witness, and in no other respect does it change the usual rules applying to the examination of witnesses. In other words, the witness is conclusively presumed to be a hostile witness [51 Ariz. 365] and the rules of law governing witnesses of this nature are applied. When, therefore, defendant was called under the statute, any questions which were asked of him by counsel for the plaintiff were subject to the same objections as to their competency, relevancy, or materiality as though plaintiff himself were testifying, and when he was cross-examined by his own counsel after plaintiff's counsel had finished the examination, such examination was subject to the same rules as though he had been plaintiff's own witness in the first place. Counsel for plaintiff asked the defendant as to whether he knew of anyone who had taken care of Lyman during his lifetime, except plaintiff, to which he answered there was one, a Mr. Kime. Thereupon the following questions and answers appear in the record:
"Q. He was a minister, ordained minister in the Seventh Day Adventist Church?
"Mr. Allen: I object to that as immaterial, your Honor, having no bearing whatever on this case.
"The Court: It might have a bearing to show that there was nobody else out there. If it does, I don't know.
"Mr. Allen: What does the occupation of this person who was out there have to do with whether he was there and rendered any services or not?
"Mr. Fickett: We want to identify who the man was.
"The Court: It is identification of the party who was there, that is all I can see. ...