Pelkey v. Hodge

DOOLING, J.,

pro

tem.

These two cases have been consolidated on appeal because they involve complaints based upon identical facts and contain identical allegations. Demurrers were sustained to the amended complaints in each case and appeals are prosecuted from the judgments which followed.

The complaints in substance allege that plaintiffs and appellants were witnesses to a certain will and were called as witnesses at the trial of the contest of such will before a jury, at which trial they were in attendance for about three weeks; that they had not received their witness’ fees, and that after the case had gone to the jury and while the jury was deliberating, they demanded their witness’ fees, and that defendants then stated to plaintiffs “that if they would waive all claim against defendants for their fees while attending court at said trial, if the verdict of the jury then out would be returned favorable to defendants, and if they won their case, that defendants would upon receiving their money from the estate pay to” plaintiffs the sum of $10,000 each. It is further alleged that this offer was accepted and the witness’ fees waived; that the jury returned a verdict favorable to defendants herein and that the will was accordingly admitted to probate and the defendants received from the estate a sum in excess of $200,000 .and that they paid to each plaintiff the sum of $2,000 and no more.

The sole question presented on appeal is whether the contract as alleged is against public policy and therefore void.

It is well settled that a contract to pay a witness for testifying where the payment is made contingent upon the success of the litigation is against public policy, since such a contract offers an inducement to perjury and tends to prevent the administration of justice.

(Dawkins

v.

Gill,

[426]

10 Ala. 206;

Laffin

v.