Grossnickle v. Avery
| Decision Date | 02 June 1926 |
| Docket Number | 12,275 |
| Citation | 152 N.E. 288,96 Ind.App. 479 |
| Parties | GROSSNICKLE v. AVERY |
| Court | Indiana Appellate Court |
Rehearing denied December 22, 1926. Transfer denied April 26 1933.
From Elkhart Superior Court; William B. Hiles, Judge.
Action by Harvey W. Avery against George W. Grossnickle. From a judgment for plaintiff, defendant appealed.
Reversed.
Raymer & Olds and R. E. Proctor, for appellant.
State & Harman and Harman & Jay, for appellee.
OPINION
Appellee, while riding a bicycle on one of the streets in the City of Elkhart, was injured by reason of a collision with an automobile driven by appellant. Appellee, at the time of the collision, was traveling west while appellant was traveling east. Appellee filed a complaint alleging that his injuries were caused by reason of appellant's negligence. From a judgment in favor of appellee appellant appeals and contends that the court erred in overruling his motion for a new trial. Appellee insists that the evidence is not all in the record and that no question is presented for our consideration.
The judge certifies that the bill of exceptions contains all the evidence given and offered in the cause; that such bill is correct to his "personal" knowledge, except certain exhibits, the originals of which were lost and which he certifies he did not see or inspect during the trial; that on application by appellant and after hearing evidence copies of such exhibits were incorporated in the bill of exceptions. The fact that copies of such lost exhibits were incorporated in such bill which the trial judge certifies contains all the evidence given and offered in the cause is sufficient to bring the copies of the lost exhibits into the bill though the judge has no personal knowledge that they are correct copies of the originals.
Appellant contends the court erred in refusing to strike out certain parts of the deposition of R. G. Shiffler, a witness for appellee. This witness did not see the collision. He testified that he lived near the place of the collision; that he went out and saw the people gathered there; saw several automobiles; saw one automobile which was identified as the one driven by appellant, and saw "skid-marks" which he described and which it could be inferred from the evidence were made by appellant's automobile.
The fact that the witness did not see the collision did not render him incompetent to describe what he saw in the way of marks on the pavement. This evidence was proper as tending to show how far appellant's automobile ran after the brakes were applied, as bearing on the speed that appellant was driving, and also as tending to show whether appellant was north or south of the center of the street. The weight to be attached to the evidence was for the jury.
A few days after the accident a lawyer, representing appellant's insurance carrier, interviewed several people who witnessed the accident and procured from them written statements. The persons whose statements were so taken were witnesses for appellant. Later this lawyer, as a witness for appellant, testified concerning the making of these statements, the purpose of his testimony being to impeach the testimony of the persons who had made the written statements. On cross-examination he was asked if at the time he interviewed these witnesses and took their statements he was not acting as the attorney and representative of the insurance carrier, and over appellant's objection he was required to answer. He then testified that when he took these statements he was representing the insurance company and that in a conversation with appellee at the time he took appellee's written statement, he told appellee he was representing the insurance company. There was no error in the action of the court in overruling the objection to this testimony. This evidence was proper as tending to impeach the testimony of the witness by showing an interest in the transactions, about which he had testified. The weight of the testimony was for the jury. The fact that this lawyer was afterwards employed by appellant and was one of the lawyers who appeared for appellant in this action did not alter the situation. The jury was correctly and fully instructed as to the purpose of this testimony and told that it could only be considered for the purpose of affecting the weight of the testimony of the witness. Moy Quon v. M. Furuya (1914), 81 Wash. 526, 143 P. 99; Jensen v. Schlenz (1916), 89 Wash. 268, 154 P. 159; Taggart v. Keebler (1926), 198 Ind. 633, 154 N.E. 485, 152 N.E. 287, 154 N.E. 485. Such cases as Inland Steel Co. v. Gillespie (1914), 181 Ind. 633, 104 N.E. 76, are not in point.
The court refused to permit appellant to read in evidence certain written statements made by Jacob L. Miller and Jessie F. Smith, who were witnesses for appellee. Appellant insists these statements were admissible for the purpose of proving statements made out of court inconsistent with the testimony given by those witnesses.
These witnesses on cross-examination admitted having signed the statements bearing their respective signatures and each of them was given an opportunity to examine the statement to which their respective signatures were attached. Miller testified as to the circumstances connected with the preparation and signing of his statement. Mrs. Smith, while admitting that her signature was affixed to one of the statements, said she did not know whether it was in fact her statement. These statements purported to be sworn to before a notary public, and there was evidence sufficient to sustain a finding that before these statements were signed by them, they were read by, or to, the witnesses whose signatures they bore. The court refused to allow them to be read in evidence upon the ground that the proper foundation for their admission had not been laid.
It was the theory of the trial court that it was necessary for appellant on cross-examination of the witnesses to ask them concerning the contents of their respective statements and that in the absence of such an examination they were not admissible in evidence. The court applied the rule regulating the admission in evidence of inconsistent oral statements, to the admission of written statements. This was error.
The purpose of introducing prior statements of a witness contradicting his testimony is to show that the witness is capable of making errors in his testimony; to show either "a defect in the memory or in the honesty" of the witness. The object of the rule requiring that a witness on cross-examination must be asked whether he made the supposed contradictory statement is to warn him that it will be offered against him by testimony later produced, and to give him an opportunity to deny it, if he claims not to have made it, or to explain it, if he admits having made it. This rule is by no means an immemorial tradition. Wigmore on Evidence, 2 Ed. § 1026. It had its origin and birth in the responses of the Judges in 1820, in The Queen's Case, 2 B. & B. 313, and was first applied in this state in Doe d. Sutton v. Reagan (1839), 5 Blackf. 217, 33 Am. Dec. 466, where an attempt was made to impeach a witness by proving prior oral statements contradictory to those made in court, and where the witness had not been asked about the previous statements. The method of laying the foundation for impeaching a witness by proving oral statements contradicting the statements of the witness while testifying is well established in this state. Joy v. State (1860), 14 Ind. 139; Bennett v. O'Byrne (1864), 23 Ind. 604; Hill v. Gust (1876), 55 Ind. 45; McIlvain v. State (1881), 80 Ind. 69; Roller v. Kling (1898), 150 Ind. 159, 49 N.E. 948; Miller v. State (1915), 183 Ind. 319, 109 N.E. 205.
Our attention, however, has not been called to any case in this state discussing the method of laying the foundation for impeaching a witness by introducing prior written statements, and after a careful search we have been unable to find an Indiana case where the question was involved.
It is not necessary in the instant case for us to determine the extent to which a witness may be cross-examined, if at all, concerning the contents of the supposed contradictory writing. All we need to determine, is whether a proper foundation was laid for the introduction of the statements of the witnesses.
In Larkin v. Nassau Electric R. Co. (1912) 205 N.Y. 267, 98 N.E. 465, a witness on cross-examination was shown a typewritten statement which he said had been written in his presence and that he had signed it without reading. It was offered in evidence and excluded, not because it had been offered out of order, but on the ground that it was incompetent. In reversing the cause the court said: ...
To continue reading
Request your trial