James Rutherford, Appellant, v. Leopold Krause, Respondent, Impleaded with John Geldrich and Others

James Rutherford, Appellant, v. Leopold Krause, Respondent, Impleaded with John Geldrich and Others. Evidence, offered by one defendant, of declarations of his co-defendant made in the plaintiff’s absence. Iij an action to recover damages for injuries to a carriage and team owned by the plaintiff, while in use by the defendants, in which one of the main issues is whether the defendant Krause was one of the parties who hired the team, it is error to permit Krause to testify to a conversation had prior to the trip, and in the absence of the plaintiff, between himself and his co-defendant Geldrich, in which the latter stated that he hired the team and invited Krause to accompany him. It is also error to allow the defendant Krause, upon the cross-examination of a witness, to prove declarations of the defendant Geldrich, that he, Geldrich, had hired the team, where there was nothing in the direct examination to render such evidence proper. Appeal by the plaintiff, James Rutherford, from a judgment of the Supreme Court in favor of the defendant, Leopold Krause, entered in the office of the clerk of the county of Delaware on the 11th day of September, 1895, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 1st day of October, 1898, denying his motion for a new trial made upon a case and exceptions. Robert T. Johnson, for the appellant. George W. Youmans, for the respondent. [MAJORITY — Merwin, J.:] Merwin, J.: One of the main issues in this case was, whether the respondent Krause was one, of the parties who hired of plaintiff the team and Carriage, for injuries to which, on a trip taken by the defendants, the action was brought to recover damages. The respondent Krause was permitted, over the objection and exception of plaintiff, to testify in his own behalf to a conversation between himself and the defendant Geldrich, prior to the trip and in the absence of the plaintiff, to the effect that he,- Geldrich, hired the team himself and invited Krause to go with him. This evidence was incompetent, and we cannot say that it did not affect the result. The respondent was also'allowed, upon the cross-examination of the witness Martin, and over the objection and exception of plaintiff, to prove declarations of defendant Geldrich that he had hired the team. Martin had not testified to anything on his direct examination that made this proper as cross-examination. These declarations were not competent against plaintiff; he was not present. For these errors the judgment should be reversed. All concurred. Judgment and order reversed and a new trial granted, costs to abide the event.