Morgan v. The Franklin Ins. Co. Elijah Morgan

• Decision Date: 17 July 1873
• Citation: 6 W.Va. 496
• Parties: Morgan v. The Franklin Insurance Company. Elijah Morgan, Plaintiff in the action, Defendant in error against The Franklin Insurance Company, Defendant in the action, Plaintiff in error.
• Court: West Virginia Supreme Court

6 W.Va. 496

Morgan

v. The Franklin Insurance Company.Elijah Morgan, Plaintiff in the action, Defendant in error against The Franklin Insurance Company, Defendant in the action, Plaintiff in error.

Supreme Court of Appeals of West Virginia.

Decided July 17th, 1873.

Syllabus.

1. It is competent to impeach the credit of a witness by proof that he has made statements inconsistent with the testimony he has given on the trial.

2. It is proper, to lay a foundation for impeaching the credit of a witness, to first inquire of him, on cross-examination, whether he has not on some former occasion given a different account, or made a different statement of a matter of fact, to which he has testified on the trial.

8. After the denial, on cross-examination, of a witness that he has made such inconsistent or contradictory statement, although it is admissible, upon a principle of convenience or absolute necessity, to put the question to the impeaching witness in the same words it had been put to the former witness, yet, it would he more satisfactory that the answer should he obtained without a direct suggestion.

4. If the question put to the impeaching witness, is not in the same words as put to the former witness, it should, nevertheless, be relative, and sufficiently precise, so as to indicate to the impeaching witness the same subject matter or transaction, testified to by the former witness, and not so general as to introduce irrelevant and improper testimony.

5. The question propounded to the witness, Arthur, is too general, and calculated to prejudice the merits of the case by the introduction of irrelevant and inadmissible matter.

This is an action of assumpsit, brought by the Plaintiff against the Defendant, in the Circuit Court of Ohio county, to recover $1,000, the amount alleged to be "due for loss by fire, insured against by said Company," and in which there was a verdict and judgment for the Plaintiff for the amount claimed, with interest.

On the trial, a witness, Hall, for the Plaintiff, was asked, upon cross-examination, and for the purpose of impeaching his testimony, whether he had not at a certain interview with Arthur, a witness for the Defendant, told him that threats had been made to burn the mill, and of the Plaintiff's difficulties in his neighborhood, and that the insurance was obtained in consequence. To this question the witness answered, "No Sir."

The witness, Arthur, was then examined, and, after stating that he had had an interview with Hall, was asked to state what information he had received from Hall in relation to this loss. The Plaintiff, by his attorney, objected to the witness Arthur answering this question.. The Court sustained the objection, and refused to permit the question to be answered, and the Defendant excepted.

This statement presents the only question considered and determined by this Court.

Wheat and Lamb for Plaintiff in error.

Peck and Hubbard for Defendant in error.

Moore, Judge.

The question of demurrer haying been waived in the argument of this cause, there is but one point left for the consideration of the Court on this appeal, and that is the refusal of the Circuit Court to permit the witness, 1ST.C. Arthur, to answer the last question propounded to him by Defendant's attorney, in the attempt to impeach the testimony of the witness, Leonard S. Hall.

Following the current of authority, it seems to be the established rule, that a witness cannot be cross-examined as to any fact which is collateral and irrelevant to the issue, merely for the purpose of contradicting him by other evidence, if he should deny it, thereby to disci-edit his testimony. And if a question is put to a witness which is collateral or irrelevant to the issue, his answer is conclusive, and cannot be contradicted by the party who asked the question. Forde's case, 16 Gratt. 547.

It is competent to impeach the credit of a witness by proof that he has made statements inconsistent with the testimony he has given on the trial. (Idem.)

In order to lay a foundation for impeaching his testimony by contradicting it, it is not irrelevant to inq uire of the witness, on cross-examination, whether he has not on some former occasion given a different account, or made a different statement, of a matter of fact to which he has testified on the trial. (Idem.)

It is proper, if not imperative, thus to lay the foundation, that truth may be obtained without taking undue advantage of the witness. The witness is thus afforded an opportunity to refresh his memory, and enabled to correct the statement, if necessary, and to "explain the nature, circumstances, meaning and design of what he is proved elsewhere to have said." Such a rule, "proceeding from a sense of justice due the witness," is not only well calculated to preserve the credibility of an honest witness, but also, detect and expose the dishonest and false. 1 Greenl'f Evid. sec. 462, note 1. 12 Gratt. 484, and citations of Daniel, J. therein.

In the case before us, these principles were closely adhered to in the examination of Hall, laying the foundation for impeachment. The difficulty in the case is such as frequently arises, and that is,...