Reddick v. Young, 22,111.

Docket NºNo. 22,111.
Citation177 Ind. 632, 98 N.E. 813
Case DateMay 28, 1912
CourtSupreme Court of Indiana

177 Ind. 632
98 N.E. 813


No. 22,111.

Supreme Court of Indiana.

May 28, 1912.

Appeal from Circuit Court, Howard County; L. J. Kirkpatrick, Judge.

Action by Henry W. Young against William R. Reddick. From a judgment for plaintiff, defendant appeals. Transferred from the Appellate Court under section 1405, Burns' Ann. 1908 (Acts 1901, c. 259). Affirmed on condition of remittitur; otherwise reversed.

[98 N.E. 814]

Kane & Kane and Blacklidge, Wolf & Barnes, for appellant.
J. T. Cox and Claude Y. Andrews, for appellee.


The complaint in this action brought by appellee is in three paragraphs. In the first paragraph, he seeks to recover the purchase price of a horse, alleged to have been sold and delivered to defendant for the sum of $195. The second paragraph is based upon a check for $190 on the Citizens' State Bank of Noblesville, Ind., payable to appellee and signed by appellant. It is alleged in said paragraph that appellant stopped payment on said check, and that the same was never paid. The third paragraph is on a check for $5 on the Kokomo National Bank of Kokomo, Ind., payable to appellee and signed by one A. C. Culp. It is alleged that said Culp stopped payment of the check, and that it was never paid. It is further alleged that at all times Culp was acting as the agent of appellant.

Appellant's demurrer for want of facts to each paragraph of complaint was overruled. Appellant filed an answer in three paragraphs, the first of which was a general denial. The second paragraph of answer was to the second paragraph of complaint, and alleged, in substance that plaintiff sold a horse to Culp for $195 and received the latter's check of $5 as part payment therefor, and agreed to deliver the same at Bunker Hill, sound, on June 26, 1907. That later Culp sold the horse to defendant, who agreed to take the same, provided it was delivered to him sound. As Culp had not paid plaintiff for the horse, the defendant advanced Culp $190, and, at the request of the latter, made the check payable to plaintiff. That the horse was not delivered sound at Kokomo,

[98 N.E. 815]

but was sick and unsound, and for this reason defendant refused to take the horse and stopped payment on the check. The third paragraph of the answer alleged, in substance, that on June 21, 1907, the defendant purchased the horse of plaintiff, who warranted the same sound and all right, and agreed that he would deliver the same in Bunker Hill, Ind., on June 26, 1907; that, relying on this warranty, defendant executed the checks described in the complaint; that the horse was delivered sick and unsound; that defendant refused to accept the same and returned him to plaintiff.

Appellee's demurrer for want of facts, challenging said second and third paragraphs severally, was overruled. Appellee filed a general denial to the said second and third paragraphs of answer. A trial by jury resulted in a general verdict in favor of appellee for $195, principal, $22.65, interest, total, $217.65. Over appellant's motion for a new trial, judgment was rendered on the verdict.

As no cross-errors have been assigned challenging the correctness of the action of the court in overruling the demurrers to the second and third paragraphs of answer, we express no opinion as to their sufficiency.

It is insisted by appellant that the court erred in admitting the testimony of witnesses for appellee to the effect that Oscar Corbin had stated, in their presence, at Bunker Hill that he was going back to Kokomo in time for the ballgame, if he had to kill the horse, and of another witness for appellee to the effect that Corbin had stated in his presence that he was going back to Kokomo by 12 o'clock, or kill the horse. Said Corbin was sent to Bunker Hill by A. C. Culp, who purchased the horse from appellee, to receive the horse and ride him to Kokomo on June 26th. He was also to deliver to appellee the check sued upon in the second paragraph, in payment of the balance of the purchase money for the horse. There was evidence that the horse was sound and all right when delivered by appellee to Corbin at Bunker Hill, but that he was sick when Corbin arrived at Kokomo with him. Corbin testified that he drove slow from Bunker Hill to Kokomo, a distance of not quite 14 miles; that it was a hot day; that he left Bunker Hill at 10:15 a. m. and arrived at Kokomo at 1:30 to 2 p. m. Said Corbin, on cross-examination, had testified that he did not make said statements.

One witness for appellee testified that he “saw Corbin 2 1/2 miles south of Bunker Hill on the road to Kokomo going at a right fast trot; that he observed the horse and its rider as they traveled a distance of from 50 to 60 rods. The horse was perspiring freely.” Another witness for appellee testified that he was working along the road three-fourths of a mile south of Bunker Hill, and saw Corbin riding the horse; “that he observed him for a quarter of a mile; and that for about two-thirds of the distance the horse was loping, and the rest of the distance he was running rapidly.” Two other witnesses testified that they saw the horse the same day at Kokomo, about 12:30 p. m.; that the horse was sweating, lathering, and panting; that he looked sick; that the sweat had dried in on him; that he looked as if he had been used pretty hard, overheated.”

[1] The objection made by appellant was that said testimony was for the purpose of impeaching said witness Corbin in matters purely collateral. Said witnesses for appellee testified that said statements were made by said Corbin after he received the horse, and when he was about to start to Kokomo. Under the allegations of the third paragraph of answer, Corbin was acting as the agent of appellant in receiving the horse at Bunker Hill and riding him to Kokomo; while, under the allegations of the second paragraph of answer, he was in such work the agent of Culp. It is evident that if either Culp or Reddick had received the horse in person and made the declarations it is claimed that Corbin made at Bunker Hill, and under the same conditions, that said declarations would have been admissible in evidence on behalf of appellee. Corbin's agency in receiving and delivering said horse at Kokomo had commenced and was continuing at the time said declarations were made; and they showed his intention and his mental state in regard to the manner of performing his duties as such agent in riding said horse to Kokomo. What he said and did in the performance of his agency was admissible against his principal. See 2 Chamberlayne's Modern Law on Evidence, §§ 1344-1349; Ohio, etc., R. Co. v. Stein, 133 Ind. 243, 247, 250-255, 31 N. E. 180, 32 N. E. 831, 19 L. R. A. 733;Ball v. Bennett, 21 Ind. 427, 83 Am. Dec. 356.

In Staser v. Hogan, 120 Ind. 207, at page 220, 21 N. E. 911, at page 915, the court said: “The test of whether a fact inquired of on cross-examination is collateral is this, Would the cross-examining party be entitled to prove it as a part of his case? *** Welch v. State, 104 Ind. 347, 351, 352 [3 N. E. 850].”

It has also been held by this court, in Seller v. Jenkins, 97 Ind. 430, 434-439, that, while the rule is that evidence contradicting the statement of a witness as to collateral matters is not admissible, it does not apply to any facts immediately and properly connected with the main subject of inquiry.

In Sellers v. Jenkins, supra, 97 Ind. on pages 435, 436, this court said: “The effect of proving contradictory statements extends no further than the questions of credibility. Such evidence does not tend to establish the truth of the matters embraced in the contradictory statements; it simply goes to the credibility of the witness. Davis v. Hardy, 76 Ind. 272;Hicks v. Stone, 13 Minn. 434 (Gil. 398). This consideration, in

[98 N.E. 816]

itself, supplies a strong reason for allowing a liberal latitude in cross-examining, for the purpose of laying the foundation for impeachment; for a witness who tells a falsehood concerning a matter incidentally connected with the subject of the action is as likely to testify untruly as if the falsehood had directly affected the issue. It is difficult to perceive why a material falsehood concerning a matter collaterally related to the main question is not as effective against the credibility of the witness as one immediately bearing upon the question. The courts do not put the rule that a witness cannot be impeached upon collateral matters on the ground that the nearer the false statement is to the main issue the...

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14 practice notes
  • Hancock v. Empire Cotton Oil Co, (No. 6107.)
    • United States
    • United States Court of Appeals (Georgia)
    • September 23, 1915
    ...der Ploeg v. Van Zuuk, 13 L. R. A. (N. S.) 490-492, note; White-Wilson-Drew Co. v. Egelhoff, 96 Ark. 105, 131 S. W. 208; Reddick v. Young, 177 Ind. 632, 98 N. E. 813; Linick v. Nutting, 140 App. Div. 265, 125 N. Y. Supp. 93; Herman v. Gregory, 131 Ky. 819, 115 S. W. 809; Wilkes v. Pope, 4 G......
  • Miller v. Griesel, No. 572A249
    • United States
    • Indiana Court of Appeals of Indiana
    • June 19, 1973
    ...approved authority upon the subjects under investigation. Hess v. Lowrey (1890), 122 Ind. 225, 233, 23 N.E. 156; Reddick v. Young (1912), 177 Ind. 632, 639, 98 N.E. 318 and 60 A.L.R.2d William Miller contends that he had a right to cross-examine Dale H. Griesel 'as an expert witness.' This ......
  • Ableman v. Haehnel, No. 8546.
    • United States
    • Indiana Court of Appeals of Indiana
    • February 26, 1914
    ...96 N. E. 196 et seq.; U. S. Cement Co. v. Cooper, 172 Ind. 599-605, 88 N. E. 69;McComas v. Haas, 93 Ind. 276;Reddick v. Young (Sup.) 98 N. E. 813;Indiana Fuel, etc., Co. v. Indianapolis Basket Co., 41 Ind. App. 658, 84 N. E. 776. But it is claimed by appellant that the answers of the jury t......
  • Atkinson v. Disher, No. 22,163.
    • United States
    • Indiana Supreme Court of Indiana
    • May 28, 1912
    ...voted at the election was a revocation of the powers of attorney theretofore executed by them, for the reason that that was not an issue, [98 N.E. 813]the burden of which shifted to the remonstrators by reason of the answer, but remained to be shown by the applicants, and the question could......
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5 cases
  • Miller v. Griesel, No. 572A249
    • United States
    • Indiana Court of Appeals of Indiana
    • June 19, 1973
    ...approved authority upon the subjects under investigation. Hess v. Lowrey (1890), 122 Ind. 225, 233, 23 N.E. 156; Reddick v. Young (1912), 177 Ind. 632, 639, 98 N.E. 318 and 60 A.L.R.2d William Miller contends that he had a right to cross-examine Dale H. Griesel 'as an expert witness.' This ......
  • Echterling v. Jack Gray Transport, Inc., No. 1069A187
    • United States
    • Indiana Court of Appeals of Indiana
    • March 8, 1971
    ...for impeachment is not for the purpose of showing that the prior statement was true and the present testimony false. Reddick v. Young, 177 Ind. 632, 98 N.E. 813 (1912); Sanger v. Bacon, Such testimony goes only to the credibility of the witness, to show that he blows hot and then blows cold......
  • City of Fort Wayne v. Bishop, No. 28613
    • United States
    • Indiana Supreme Court of Indiana
    • May 16, 1950, 1898, 149 Ind. 326, 335, 49 N.E. 272; Tinkle v. Wallace, 1906, 167 Ind. 382, 393, 79 N.E. 355, (cases cited); Reddick v. Young, 1912, 177 Ind. 632, 638, 98 N.E. 813; Croly v. Indianapolis Traction & Terminal Co., 1917, 63 Ind.App. 663, 665, 115 N.E. 105; Chicago, T. H. S. E. R. Co. v. ......
  • Indianapolis Traction & Terminal Co. v. Spangler, 9727.
    • United States
    • Indiana Court of Appeals of Indiana
    • March 27, 1919
    ...v. Daub, 52 Ind. App. 30, 36, 98 N. E. 845;American, etc., Tin Plate Co. v. Bucy, 43 Ind. App. 501, 87 N. E. 1051;Reddick v. Young, 177 Ind. 632, 98 N. E. 813. [3] There was no error in refusing to give appellant's instruction No. 1. As stated by appellant in its brief, this embodies the id......
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