Harris v. Quincy, O. & K. C. Ry. Co.

• Decision Date: 04 December 1905
• Citation: 115 Mo. App. 527,91 S.W. 1010
• Parties: HARRIS v. QUINCY, O. & K. C. RY. CO.
• Court: Missouri Court of Appeals

91 S.W. 1010

115 Mo. App. 527

HARRIS v. QUINCY, O. & K. C. RY. CO.

Kansas City Court of Appeals. Missouri.

December 4, 1905.

Rehearing Denied January 8, 1906.

1. WITNESSES—RIGHT TO CROSS-EXAMINE.

A party has no right to cross-examine a witness merely called and sworn by the adverse party.

2. EVIDENCE—OPINION EVIDENCE—VALUE OF CATTLE.

In an action for killing cattle, the value of the cattle may be shown by a witness who has never seen them, but who is acquainted with the value of like cattle.

3. SAME—COMPETENCY OF WITNESS.

A witness who has acquired information on the subject of the value of cattle through the general avenues to which the average business man resorts in posting himself on the value of cattle in which he deals is qualified to testify as to the value of cattle though he has not seen them.

4. APPEAL—EXCLUSION OF EVIDENCE—HARMLESS ERROR.

The exclusion of evidence showing that the values of cattle had decreased was immaterial in an action for the killing of cattle; it not being proposed to show that such evidence would bring the value beneath that fixed by witnesses for plaintiff.

Appeal from Circuit Court, Grundy County; P. C. Stepp, Judge.

Action by Warren Harris against the Quincy, Omaha & Kansas City Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

J. G. Trimble and Hall & Hall, for appellant. Hubbell Bros., for respondent.

ELLISON, J.

The plaintiff was the owner of some cattle which were killed by one of defendant's trains. He brought this action for double damages under the statute and recovered judgment in the trial court.

We will first notice an exception taken to the action of the trial court in refusing to permit defendant to cross-examine a witness. The plaintiff had a witness sworn and put upon the stand, but did not ask a question of him. Defendant thereupon claimed the right to cross-examine him as to the issues in the case. Paintiff objected on the specific ground that he (plaintiff) had not asked him a question. The court denied the right, with the statement that defendant could, in due time, call him as its own witness. After due consideration we have concluded that the court's ruling was in accordance with the rule long recognized in this state, though no case has been cited where the question was directly involved. The Supreme Court of this state has announced that we have adopted the liberal English rule as to liberty of cross-examination. The English rule, as state by 1 Greenleaf on Evidence, § 445, is that, "when a competent witness is called and sworn, the other party will ordinarily and in strictness be entitled to cross-examine him, though the party calling him does not choose to examine him in chief, unless he has been sworn by mistake." That seems to be a correct statement of the rule as announced by the English courts. Phillips v. Eamer, 1 Esp. 355, 357. In Wood v. Mackinson, 2 Moody & Robinson, 273-276, it was ruled that, if a witness be called and sworn under a mistake by counsel, he cannot be cross-examined by the other party, if the mistake be discovered before any question is put. The court seems further to require an element of good faith on the part of the counsel and suggested that if the witness had really been able to give evidence on the matter for which he was called, but counsel discovered that he knew other matters which it was not desired to disclose and for that reason attempted to withdraw him, that that would present a different case. The Supreme Courts of Georgia and South Carolina understand the English rule as stated by Greenleaf, supra; for it is there held that the witness may be cross-examined "though the party calling him does not choose to ask him a question." Lunday v. Thomas, 26 Ga. 537; Aiken v. Cato, 23 Ga. 154, 159; Mason v. Railway Co., 58 S. C. 70, 75, 36 S. E. 440, 79 Am. St. Rep. 826.

But the Supreme Court of this state, copying and approving the English rule as somewhat differently stated by Phillips on Evidence, says that if the witness is sworn "and gives some evidence," however formal, he may be cross-examined. Page v. Kankey, 6 Mo. 433. So in Railway v. Silver, 56 Mo. 265, the court says "that if a witness is sworn and gives some evidence, however formal or unimportant he may then be cross-examined in relation to all matters involved in the case." Again the same was said in State v. Brady, 87 Mo. 142. And in the late case of State v. Soper, 148 Mo. 217, 235, 49 S. W. 1010, it is said that "whenever a witness has been introduced and is examined in chief in a cause, even on the most trivial and unimportant matters, he may be cross-examined upon the whole cause." It thus clearly appears that the rule in this state concerning the right of cross-examination does not allow that right to arise merely from the fact that the opposite party had the witness sworn and put upon the stand, but he...