Littlefield v. City of Portland

The opinion of the Court, the parties having agreed that the members of the Court residing in Portland should sit in the case, was drawn up by

Tenney J.

— At the time of the accident, which was the *39cause of this suit, Stone, the witness for the plaintiff, was driving the wagon on which the property lost was loaded, as the servant of one Haskell, who owned the team.

The rule of law is well settled, that in an action against tho principal for damage arising from the negligence or misconduct of his servant or agent, the latter is not a competent witness for the principal; and where an action is brought for an alleged injury to the plaintiff’s property, while in the care and keeping of his servant or agent, the servant, or agent is not a competent witness for the plaintiff, because a verdict for the master would place the witness in a state of security against any action, which the master might otherwise bring against him. 1 Greenl. Ev. § 394 and 396. But the liability must be direct and immediate to the party; for if the witness is liable to a third person, who is liable to the party, such circuity of interest is no legal ground of exclusion. Ib. § 394. In Clark v. Lucas & al. 1 Car. & P. 156, the action was against the defendants as sheriffs of Middlesex, for a false return of nulla bona on a fi.fa. against one Gooding. It appeared, that some of the goods were removed during the time the man remained in possession under the execution, and the defendants insisted, that the removal was by the fault of the plaintiff, and to establish this fact, called as a witness the man who had been in possession ; he was objected to on the ground of interest. But Abbott C. J. remarked, that “ the judgment in the action by the sheriff against his officer, would be evidence against the witness, but not the judgment in this case and the witness was held competent by the Court. Union Bank v. Knapp, 3 Pick. 96.

The witness in the case at, bar, if answerable at all, was so only to Haskell his employer ; and the plaintiff’s claim would be against the latter. The interest was such as would go to his credit and not to his competency.

Exceptions overruled.