Cloud v. Moon

• Decision Date: 01 February 1973
• Citation: 273 So.2d 196,290 Ala. 33
• Parties: W. T. CLOUD, Ind. etc. v. Walter Vernon MOON. SC 52.
• Court: Alabama Supreme Court

Page 196

273 So.2d 196

290 Ala. 33

W. T. CLOUD, Ind. etc. v. Walter Vernon MOON.

SC 52.

Supreme Court of Alabama.

Feb. 1, 1973.

Inzer, Suttle, Inzer & Pruett, Gadsden, for appellant.

Burns, Carr & Shumaker, Gadsden, for appellee.

MERRILL, Justice.

This is an appeal from a judgment for the plaintiff-appellee in the amount of $20,785.00 against the defendant-appellant on a two-count complaint. A motion for a new trial was overruled.

The facts are essentially without dispute. At the time of the fire, appellee was a self-employed automobile mechanic with nearly twenty years experience. His shop was adjacent to his residence and was in a tin building with a floor of part concrete and part dirt. The only wood in the building was the lathing to hold the tin. Appellee's specialty was working on large trucks. He had previously worked for appellant and some months earlier had overhauled the motor on the truck that burned. Appellant was in the timber and pulpwood business and used large trucks to transport pulpwood from the forest to a paper mill.

Appellant contracted with appellee for appellee to overhaul the engine in one of appellant's trucks, a red International R--190. The truck was eleven years old and had been purchased second hand by appellant about a year before it burned. On the morning of March 14, 1969, appellee and his father took possession of the truck at appellant's place of business in Attalla. Appellee's father drove the truck to his son's garage about fifteen miles away, and appellee then took off the hood and fenders and removed the engine. In the process of removing the engine, appellee disconnected the battery cable at the starter relay rather than at the battery post, taped the cable end and disconnected the fuel line from the fuel pump. The following morning, March 15, the engine was taken to Gadsden to have some machine shop work done on it and the engineless truck was left in the garage. Appellee testified that between 9:00 and 10:00 on the evening of March 15, he heard an explosion and discovered his garage on fire. The truck was destroyed by the fire as were several items of tools and equipment belonging to appellee.

Assignments of error 26--38 charge error in that the court permitted appellee to cross-examine his own witness, to impeach him as to alleged contradictory unsworn statements, and assignments 39 and 40 charge error in the admission of an alleged statement of the witness into evidence over strenuous objections.

The appellee had taken the deposition of the witness, Gordon Martin, on December 2, 1969, and later introduced it on the first trial of this case which began on September 30, 1970. The deposition was taken before the court reporter under Act No. 375, Acts of Alabama 1955, p. 901, listed in the 1958 Recompilation as Tit. 7, § 474(1) et seq. Appellee's counsel, Mr. Carr, was present as were Messrs. Suttle and Pruett, representing appellant. In that deposition, Martin testified that an International truck which he was driving caught on fire as a result of having been 'cross-wired,' but the same type International truck which burned in appellee's garage was not the same truck which had previously caught fire; that he had done repairs on both trucks and that the only electrical work that had been done on the truck that burned in Moon's garage was repairing a starter solenoid that had burned out and repairing the 'flashing lights.'

Prior to the taking of the deposition, Mr. Carr, of counsel for appellee, had taken a statement signed by the witness Martin in counsel's office on April 1, 1969, some two weeks after the fire at appellee's garage and long before the taking of the deposition.

On the second trial, which is the subject of this appeal, appellee called Martin as his witness and notified the court that he wished to cross-examine Martin as a witness. Many objections were overruled and finally the trial court allowed appellee's counsel to cross-examine his own witness. The record shows.

'MR. BURNS: We want to call him as a hostile witness. Very hostile. And we want the right to cross examine him too'

And after some discussion:

'THE COURT: No, they might not claim surprise, but they do claim hostility if this man testifies that that is his signature and that is his statement, on the ground that he is a hostile witness, I'm going to let them cross examine him.'

The trial court may, in its sound discretion, allow a party to ask leading questions when the witness, called by that party, is hostile to the party's cause. Louisville & N.R. Co. v. Grizzard, 238 Ala. 49, 189 So. 203, cert. denied 308 U.S. 603, 60 S.Ct. 140, 84 L.Ed. 504; Winchester v. State, 20 Ala.App. 243, 102 So. 535; Tit. 7, § 444, Code 1940. But we have not been cited to any case which permits a party to call a witness and immediately cross-examine him on the theory that he is a hostile witness.

There must be an avowed surprise before one's own witness may be subjected to cross-examination by the party calling him. Campbell v. Davis, 274 Ala. 555, 150 So.2d 187; Alabama Power Co. v Hall, 212 Ala. 638, 103 So. 867. Here, appellee could not have been surprised. The witness had been offered by the appellee at the first trial. A member of the firm employed by appellee participated in the taking of the deposition at that time, appellee's counsel had a written statement signed by the witness which had been signed in the presence of appellee and Mr. Burns, the senior member of the firm representing appellee.

In his deposition, the witness testified that the International truck which he drove and which had caught fire because it was 'cross-wired,' was not the truck which burned at appellee's garage. The witness was not examined at that time as to the statement which counsel had previously secured from the witness. Under these conditions, there could not have been surprise to appellee or his counsel as to what the witness had previously sworn. They could reasonably take the position that he was hostile, but not that his hostility was a surprise. They did not claim surprise.

In Louisville & N.R. Co. v. Scott, 232 Ala. 284, 167 So. 572, this court said:

'* * * A party has no right to impeach his own witness, nor to show contradictory statements by her. He may, when taken by surprise, prove by her that before using her as a witness she had made a different statement to him. This is merely to refresh her testimony or justify him in putting her up as his witness to that fact. Gandy v. State, supra (81 Ala. 68, 1 So. 35); White v. State, 87 Ala. 24, 5 So. 829; Griffith v. State, 90 Ala. 583, 8 So. 812; Thomas v. State, 117 Ala. 178, 23 So. 665; Alabama Power Co. v. Hall, 212 Ala. 638, 103 So. 867; Peterson v. State, 227 Ala. 361, 369, 150 So. 156; Greenleaf on Evidence, § 444.

'No such situation here exists. The effort shown on her cross-examination made by plaintiff was to impeach her as a witness for defendant, and has no place in her testimony when it is offered by plaintiff on the subsequent trial of the same suit, after her death. Such cross-examination made by plaintiff, legal when she was the defendant's witness, was illegal when she became plaintiff's witness. Gandy v. State, supra; Barker v. Bell, supra (46 Ala. 216).'

On the same point, in Foremost Dairies, Inc. v. Cutler, Fla.App., 212 So.2d 37, it was said:

'* * * A party will not be permitted to put a witness on the stand knowing that his testimony will be adverse and then claim surprise in order to impeach such witness. This is particularly true when the procedure is nothing more than a device or artifice to get into evidence before the jury that which would otherwise be inadmissible.'

Finally, whether or not the testimony of the witness Martin was admissible, it could not be the basis of establishing liability of the defendant. McElroy, Law of Evidence in Alabama, 2nd Ed., Vol. 1, states in § 159.02(1):

'A self-contradictory statement by a witness who is not a party, whether testified to by him on cross-examination or proven by others is not substantive evidence of the matter asserted, that is, such statement operates only to discredit the witness, and has no other effect; in particular, such statement cannot be the basis of a finding of a fact necessary to the establishment of liability or defense. Hamilton v. Browning, 257 Ala. 72, 57 So.2d 530; Ferlise (Ferlesie) v. Cook, 201 Ala. 571, 78 So. 915; Thomas Furnance Co. v. Carroll, 204 Ala. 263, 85 So. 455; Lynn v. State, 37 Ala.App. 400, 69 So.2d 485, syl. 4; Lawson v. State, 36 Ala.App. 438, 57 So.2d 643, syl. 4; Anno: 133 A.L.R. 1455.'

Another statement of this principle is found in 58 Am.Jur., Witnesses, § 799, p. 445:

'However it is never permitted to make of this rule allowing a party to impeach his own witness an artifice by which inadmissible matter may be gotten to the jury through the device of offering a witness whose testimony is known to be adverse, in order, under the name of impeachment, to get before the jury for its weighing favorable ex parte statements the witness has made. The rule is founded not only on the fact that the witness has given testimony at variance with what the party producing him as a witness had good reason to believe, before calling him to the witness stand and examining him, that it would be, but also that such testimony is prejudicial or detrimental to the case of such party. Even where there is a real surprise it is not proper to permit the impeaching testimony to go beyond the only purpose for which it is admissible--the removal of the damage the surprise has caused.'

In Lewis v. State, 44 Ala.App. 319, 208 So.2d 228, it was said:

'The testimony of a witness may be impeached by presenting proof showing that he has made statements inconsistent with or contradictory of his testimony. 'Evidence of such contradictory statements is admitted only to discredit the witness; it is not affirmative evidence of the facts stated.' Jones on Evidence, Fifth...