Opinion
Department One
APPEAL from an order of the Superior Court of the City and County of San Francisco admitting a will to probate. J. V. Coffey, Judge.
COUNSEL:
The court erred in excluding the certified copy of the certificate of death. (Pol. Code, secs. 3023-25; Code Civ. Proc., sec. 1920; Swamp Land Dist. v. Gwynn , 70 Cal. 566; People v. Grundell , 75 Cal. 303; Reclamation Dist. v. Wilcox , 75 Cal. 448; People v. Fairfield , 90 Cal. 186.) The court erred in refusing to allow the executor to be cross-examined in reference to the original answer. (Johnson v. Powers , 65 Cal. 180; Collins v. Scott , 100 Cal. 453.) Exclusion of proper testimony is always ground for reversal. (Jolley v. Foltz , 34 Cal. 321; Estate of Toomes , 54 Cal. 517; 35 Am. Rep. 83; In re Carpenter , 79 Cal. 386.)
H. W. Hutton, for Appellant.
Wheaton, Kalloch & Kierce, and Stephen L. Sullivan, for Respondents.
No prejudice or injury appears from any ruling of the court, and the judgment must therefore be affirmed. (Mecham v. McKay , 37 Cal. 165; Ponce v. McElvey , 51 Cal. 223; Morris v. Lachman , 68 Cal. 112; Stern v. Loewenthal , 77 Cal. 343.) There is now no presumption that error is prejudicial. (Code Civ. Proc., sec. 475, in effect February 26, 1897.)
JUDGES: Garoutte, J. Harrison, J., and Van Fleet, J., concurred.
OPINION
GAROUTTE, Judge
The present action arises upon a contest of the probate of a will. The contestant appeals, and we find but two questions disclosed by the record demanding special consideration. One Behan was named as executor, and signed and verified the original answer to the contestant's pleading. This answer was subsequently superseded by an amended answer. In the original answer Behan admitted that at about the hour of 10 A. M., July 17, 1896, "said decedent [O'Connor] was attacked by a stroke of apoplexy." The will was made upon the same day, but the particular hour is not shown by the record. At the trial Behan testified that the deceased was of sound and disposing mind at the time he made the will. Upon cross-examination he testified that the deceased was not suffering from a stroke of apoplexy at the time the will was made. For the purpose of impeaching the credibility of the witness the contestant offered the aforesaid admission taken from the original answer of Behan. Under objection this evidence was ruled out, and this ruling is now assigned as error. We are satisfied that the trial court was clearly right. To impeach a witness upon the ground of inconsistent statements, the impeaching testimony must be plainly inconsistent with that already given. Behan in the pleading stated the decedent's physical condition at about 10 A. M., July 17th. In his testimony he stated his physical condition at the time he made the will. That time may have been many hours after 10 A.M. Indeed, it may have been before 10 A. M. The evidence of the witness upon the stand was directed to the condition of the deceased at a particular time, and the impeaching evidence to be admissible should have been directed to the same time. It may be further suggested that the fact of the pleading being superseded by another furnished no valid ground for rejecting the admissions therein contained when offered for impeachment purposes. The statements of fact therein made by the party stood exactly as though found in any other written document made by him, and were entitled to be used against him for impeachment purposes, if they were such as to serve that purpose. (See Johnson v. Powers , 65 Cal. 179.)
Contestant attempted to introduce in evidence the death certificate furnished by the attending physician to the health officer, for the purpose of showing that the cause of death was apoplexy. This offered evidence was rejected. Conceding the certificate to be competent evidence by virtue of the provisions of section 1920 of the Code of Civil Procedure relating to public records, still we fail to see how contestant was prejudiced by the ruling. The evidence given at the trial is not before us. There is nothing in the record to show the materiality of such evidence as that proposed to be offered. It is for the appellant to show substantial injury by the ruling of the court, and here it is not shown. Apoplexy, as a rule, comes without warning. In no sense is it considered a slow and insidious disease; and it is impossible to say by the record that this attack came upon deceased prior to the making of the will. If the shock of apoplexy which caused his death -- conceding such to be the cause of his death -- fell upon him after the will was made, then certainly the fact that he died from the effects of such shock was entirely immaterial to the investigation then before the court. We see nothing further in the record demanding consideration.
For the foregoing reasons the judgment is affirmed.