Ferris v. Todd

• Decision Date: 11 May 1923
• Docket Number: 17555.
• Citation: 124 Wash. 643,215 P. 54
• Court: Washington Supreme Court
• Parties: FERRIS et ux. v. TODD et ux.

215 P. 54

124 Wash. 643

FERRIS et ux. v. TODD et ux.

No. 17555.

Supreme Court of Washington

May 11, 1923

Department 2.

Appeal from Superior Court, Clarke County; Geo. B. Simpson, Judge.

Action by Julius Ferris and wife against John W. Todd and Wife. Judgment for plaintiffs. From an order granting a new trial they appeal. Affirmed.

G. M Davison and W. G. Drowley, both of Vancouver, for appellants.

McMaster Hall & Schaefer, of Vancouver, for respondents.

FULLERTON J.

The appellants Ferris brought this action against the respondents Todd to recover in damages for the destruction of certain of their farm buildngs, certain hay, and other personal property, which were burned by fire alleged to have been started by the respondents on their own property and negligently permitted by them to escape to the property of the appellants. The cause was tried by a jury, who returned a verdict in favor of the appellants. On motion the verdict was set aside and a new trial granted for error in admitting testimony. The appeal is from the order granting the motion.

At the trial the appellants called in their own behalf of witness named Carlson, who, in addition to testifying to other matters respecting the fire, gave the following testimony:

'Q. Did you notice the fire jump the old road? A. I did not. I won't say which side of the road the fire was on when I saw it. I don't know.

'Q. Did you observe the course of the fire or smoke between the time you first saw it and the time the hay stack caught? A. I never paid a great deal of attention to it.

'Q. Well, answer the question, Did you notice what course the fire took in that time? A. No; as I spoke before, when I first saw it it was where I showed you on the map, and I went into the canyon and I couldn't see the fire for a while and when I came back it was at the haystack. I couldn't see it between.

'Q. Did you notice the fire in the fence at the time? A. Which? Before the buildings burned?

'Q. Yes. A. No. I did not.

'Q. Do you remember having a conversation with me out at your place shortly after the fire occurred? A. I think you was down there one night.

'Q. Did you not at that time tell me you saw the fire jump the road? A. I did not tell you that.

'Q. Well, Mr. Carlson, shortly after the fire at your house, and in the presence of your wife and family, didn't you state to me, in substance, that you saw the fire jump the road and burn south of it and catch in the fence and the grass along the fence, and burn down the fence, and that the reason you didn't go over was because you supposed some one was there to watch the fire? A. I made part of the statement but part of it you are adding to the statement; about the jumping of the road and the catching in the fence, I didn't say. I didn't make that statement. The rest of it I did.'

Later, in the examination of another witness by the appellants, the following question was asked and permitted to be answered over the objection of the respondents:

'Q. Mr. Ferris, did Mr. Carlson at your place on Labor Day, immediately after that fire, when Mr. Young and Mr. Skinner were there, and Mrs. Ferris, did Mr. Carlson state to you that he saw the fire jump the old road and burn into the fence and run along the fence to the hay, or words to that effect? A. Yes.'

Three other witnesses were permitted to testify in like manner.

The court permitted the impeaching evidence under the rule that a party who has been surprised at the unfavorable testimony of a witness he has called on his own behalf may ask such witness whether he has not made contradictory statements at other times and places, and, if the witness denies it, show by other evidence that he has made such statements. The rule itself is well established. Burger v. Taxicab Motor Co., 66 Wash. 676, 120 P. 519; Blystone v. Walla Walla Valley R. Co., 97 Wash. 46, 165 P. 1049.

But it is plain from the quotations we have made that this is not the question here presented. The witness did not testify unfavorably to the appellants; he merely failed to testify as favorably as the appellants anticipated he would testify. This did not authorize his impeachment by the appellants. Impeachment is for the purpose of showing that a witness is untrustworthy and unreliable, and the right can be invoked only by a litigant against whom the testimony...