GEORGE O. LEONARD v. GEORGE L. KINGSLEY, 50 Cal. 628

By the Court: The letters from Howard, put in evidence by the plaintiff against the objection of the defendant, were improperly admitted. Howard was not a party to the action, but had been examined as a witness in the cause on behalf of the defendant, and his deposition had been put"in evidence. If the plaintiff desired to use the letters as evidence, he should have called the attention of the Avitness to them, and have afforded the defendant an opportunity to cross-examine him in respect to them.

He might have shown by the testimony of Howard the circumstances under which the letters were written, and possibly have so explained the transaction as to render them harmless for any purpose. Standing alone and unexplained, the letters were not admissible for any purpose.

They are not before us, nor do their contents appear in the record, except in so far as they may be inferred from the statement of counsel, at the time they Avere offered; and it is urged in argument, that in the absence of the letters, it cannot bo presumed that they were injurious to the defendant’s case, even though they were improperly admitted in evidence.

But the rule long recognized and acted upon by this Court is, that when the appellant has shown error in the admission of evidence, the error will be presumed to have been injurious to the adverse party, unless the contrary clearly and affirmatively appears. If the production of the letters would have shown that they could not have damaged the defendant, the respondent should have had them incorporated into the record. Judgment and order reversed, and cause remanded for a new trial.