Lambert v. Armentrout
| Decision Date | 23 March 1909 |
| Citation | 64 S.E. 260,65 W. Va. 375 |
| Court | West Virginia Supreme Court |
| Parties | LAMBERT. v. ARMENTROUT et al. |
Cross-examination is confined to matters of the examination in chief. If a party wishes by his adversary's witness to prove other matters, he must wait his turn, or, in the court's discretion, may without waiting his turn interrogate the witness; but in either case he makes the witness his own as to such others matters.
[Ed. Note.—For other cases, see Witnesses, Cent. Dig. § 1098; Dec. Dig. § 325.*]
A party may not impeach his own witness either by attacking his reputation for veracity or by proving by others previous contradictory statements. But, if the witness is a party in interest, so that such statements would be admissible as admissions against his interest, the party may prove such prior admissions, though they may contradict the witness.
[Ed. Note.—For other cases, see Witnesses, Cent. Dig. § 1269; Dec. Dig. § 400.*]
There is no implied warranty of quality or soundness of chattels sold. There must be either fraudulent representation or express warranty of quality, soundness, or fitness.
[Ed. Note.—For other cases, see Sales, Cent Dig. § 754; Dec. Dig. $ 266.*]
(Syllabus by the Court.)
Appeal from Circuit Court, Randolph County.
Action by L. D. Lambert against C. L. Armentrout and others. Judgment for plaintiff, and defendants appeal. Reversed.
L. Hansford and Cunningham & Stalllngs, for plaintiffs in error.
J. Wm. Harmon, for defendant in error.
BRANNON, J. C. L. Armentrout and C S. Armentrout made a promissory note to R. E. Lee Armentrout, which R. E. Lee Armentrout assigned to L. D. Lambert, and Lambert sued on it before a Justice, making C. L. Armentrout, C. S. Armentrout, and R. E. Lee Armentrout defendants. The case went to the circuit court of Randolph county by appeal, and there the court directed a verdict for the plaintiff, and from judgment against the three Armentrouts C L. and C. S. Armentrout have come to this court.
The defense was that the note had been given for a horse and wagon, and that the horse had been warranted as sound, but, in fact, was unsound. On the trial the plaintiff introduced R. B. Lee Armentrout as a witness, who gave evidence in chief that the note had been given for a horse and wagon, and that $40, the price of the wagon, had been paid, and no more, and gave no evidence at all touching the warranty or soundness of the horse. On cross-examination the defense asked him if he had not warranted the soundness of the horse, and he denied having done so. The defense also asked whether he had not made statements out of court that he knew the horse was unsound, and had warranted him as sound, and he denied having made such statements. Then the defense offered to prove by other witnesses that Armentrout had made such contradictory statements, but the court would not allow evidence of such statements. The great weight of authority is that a party has no right to cross-examine a witness beyond facts elicited on his examination In chief. He cannot prove his own case by his adversary's witness without making him his own witness as to such new Independent matter. If he wishes to prove other matters by him, he must call him In the subsequent progress of the case, and if, without waiting his turn, which the court to avoid confusion and promote method and regularity should require, he at once Interrogates, he makes the witness his own. State v. Hatfield, 48 W. Va. 561, 37 S. E. 626; State v. Carr (decided February, 1909), 63 S. E. 766; 3 Jones on Ev. § 820, note 6; 2 Elliott on Ev. §§ 917, 922, So the defense in this case made Armentrout its own witness touching contradictory, out of court statements as to warranty of the horse. This being so, then comes the question whether the defendants could impeach Armentrout by proof from other witnesses of what he denied; that is, that he made statements that he knew the horse was unsound, and had stated he was sound when he sold him. I do not know that this court has passed on this question. A party cannot impeach his own witness by evidence of other witnesses either as to general repu tation for veracity or of previous inconsistent statements. McKelvey on Ev. 400; 2 Elliott on Ev. § 985; 30 Am. & Eng. Ency. L. 112S; 3 Jones on Ev. § 857; Underbill on Ev. § 347. And it makes no difference that the adverse party first called the witness, since by cross-examination on matters other than those included in his chief examination the party makes the witness his own as to such new matters, and the same rule applies "with reference to impeaching his testimony as though he had been called in the first instance by such party." McKelvey on Ev. 404; Starkie on Ev. 250 (10th Ed.). This rule seems unreasonable. It is founded on the unsubstantial reason that the party by presenting the witness represents him as credible. Hardly so where the adverse party presents him first. But such is the rule so firmly set that in England, and many of our states it has been changed by statutes allowing the party to prove inconsistent statements, as in Virginia In the case of the unfortunate McCue (103 Va. 870, 49 S. E. 623), where the old rule is seemingly criticised, and the subject discussed. It is ridiculed in that great work, Wigmore on Evidence.
I must not be taken as saying that a party is bound by what his witness says. He cannot impeach his general reputation for veracity or prove contradictory statements; but he may by other witnesses prove that the facts are otherwise than as stated, and it is no objection to any relevant evidence of material facts on which he relies to sustain his case that it may operate to contradict and thus discredit his own witness. Stout v. Sands, 56 W. Va. 663, 49 S. E. 428; 30 Am. & Eng. Ency. Law, 1129; Id. (1st Ed.) 812; Wharton on Ev. § 549; 3 Jones on Ev. § 860; 2 Wigmore on Ev. §§ 907, 1051; Hickory v. U. S., 151 U. S. 303, 14 Sup. Ct. 334, 38 L. Ed. 170; McKelvey on Ev. 400; 2 Elliott on Ev. § 985; Mississippi Glass Co. v. Franzen, 143 Fed. 501, 74 C. C. A. 135, 6 Am. & Eng. Ann. Cas. 707. The rule which denies right to prove contradictory statements of one's own witness is not...
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