Leftwich v. Casualty Co. , 123 W. Va. 577 ( 1941 )

I am in full accord with the majority opinion with the exception of its treatment of the testimony showing the defendant's payment of ten dollars to Leftwich. The defendant objected to this testimony because waiver had not been specially pleaded by the plaintiff and therefore payment could not be shown as constituting an admission of liability and a waiver of known defenses. Instead of controverting the legal question thus raised, the plaintiff stated that the testimony concerning payment, including a post card mailed by the defendant to him referring to the payment of ten dollars, was offered, not for the purpose of showing waiver of defenses on the part of the company, but in order to credit the defendant with the amount paid as against the amount sought to be recovered. It was not objected to by the defendant as being inadmissible for that purpose, and the defendant made no effort, by instruction or otherwise, to limit the effect to be given it by the jury, as was its right if it cared to do so. The plaintiff having stated the purpose for which the testimony was tendered, and there being no specific objection covering its admissibility for that purpose, I am under the impression that the duty of seeing that the jury was properly informed as to the limitations upon its use and effect became and was a matter of defense, and for that reason did not rest upon either the plaintiff or the trial judge.

It is well established that where the objection to the admission of testimony is based upon some specified ground, the objection is then limited to that precise ground and error cannot be predicated upon the overruling of the objection, and the admission of the testimony on some other ground, since specifying a certain ground of objection is considered a waiver of other grounds not specified. Jones on Evidence (2nd Ed.), page 4990. By analogy, a general objection could not serve to exclude testimony properly admitted upon any theory. Curfman v. WestPenn, etc., Co., 113 W. Va. 85, 166 S.E. 848, and Parr v.Coca-Cola Bottling Works, etc., 121 W. Va. 314, 3 S.E.2d 499. The objection to testimony is addressed to the court and, in theory, a ruling dealing with its admissibility, as distinguished from the testimony itself, does not reach the jury. Being of the opinion that it devolved upon the defendant to see that the effect to be given to the testimony by the jury was properly limited, in the absence of that effort I do not believe that it could be regarded as prejudicial error for either the trial judge or the attorney representing the plaintiff to fail to see that the jury limited the effect of the testimony. However, with all deference, I do not agree with the position taken by the majority of the court, as I understand it, to the effect that a mere discussion or colloquy between the trial judge and the attorneys representing the plaintiff and the defendant concerning the purpose for which evidence is admitted should be regarded as preventing the jury from being misled or as in any way affecting its conduct. I am under the impression that these statements contained in the majority opinion constitute a wide departure from well settled principles of jury deliberation and that if followed hereafter, the consequence will be quite confusing.