Simms v. Forbes

• Decision Date: 05 June 1905
• Citation: 38 So. 546,86 Miss. 412
• Court: Mississippi Supreme Court
• Parties: AARON P. SIMMS v. ORLEAN E. FORBES

38 So. 546

86 Miss. 412

AARON P. SIMMS v. ORLEAN E. FORBES

Supreme Court of Mississippi

June 5, 1905

FROM the circuit court of Adams county, HON. MOYSE H. WILKINSON Judge.

Miss Forbes, the appellee, was plaintiff, and Simms, the appellant, was defendant in the court below. From a judgment in plaintiff's favor for $ 1,741 defendant appealed to the supreme court.

The action was for damages for injuries sustained by plaintiff in falling into an open elevator shaft in defendant's store.

Defendant pleaded the general issue, and gave notice that evidence would be introduced to show that plaintiff's damage was caused by her contributory negligence. The court refused to instruct the jury that the burden of proof was on plaintiff to show that she was: free from contributory negligence.

Judgment reversed and remanded.

Brown &amp Martin, for appellant.

The court erred in admitting over defendant's objection testimony of a conversation that took place in the absence of defendant between W. J. Foster and plaintiff, when W. J Foster called at her residence to see her over a year after her injury and only a few days before the trial, and especially in permitting plaintiff to answer the following question of her counsel relative to said conversation--to wit:

"As a part of that conversation, did you say to him that you had not been warned?"

Mr Foster, on cross-examination, replied to plaintiff's questions that Miss Forbes stated she understood we were going to say that she was warned, but he did not recall whether she said she was or was not warned, because some things she claimed to remember and some she did not.

At the close of Mr. Foster's testimony Miss Forbes took the stand in rebuttal, when the following occurred--to wit:

"Ques. When Mr. Foster came down to see you, as a part of that conversation he had with you, did you say to him that you had heard that they intended to say that you were warned about that place? (Objected to and sustained, and plaintiff excepted.)

"Ques. As a part of that conversation, did you say to him that you had not been warned? (Objected to and overruled, and defendant excepted.)

"Ans. I looked him right in the face most impressively and said it very slowly, 'I hear your people say that I was warned; I wasn't warned ;' and he said nothing.,'

We admit there is strong authority holding that even where a witness says he cannot remember whether he has made a statement different from his testimony, you can introduce the contradictory statement by way of impeachment. There was no attempt here, however, to impeach Mr. Foster by proving a statement as to a material matter different from his testimony, but simply to prove Miss Forbes made a statement about which Mr. Foster had no recollection. Plaintiff's counsel injected this grossly incompetent testimony into the case to discredit Mr. Foster by Miss Forbes' statement that Mr. Foster "said nothing" when she claimed to him that she was not warned. This statement of Miss Forbes undoubtedly prejudiced defendant's case with the jury, since it was the only thing in the case to suggest a doubt as to Mr. Foster's testimony that he had warned Miss Forbes of the open elevator.

If defendant had claimed to have warned her and had remained silent when she denied the warning, his silence might be construed as an admission against himself, and, as such, admissible. Mr. Foster, however, could not bind his principal by any admission relative to a past transaction. It was immaterial what Miss Forbes said to Mr. Foster, hence she could not have contradicted him even had he testified she did not say she was not warned. See V. & M. R. R. Co. v. McGowan, 62 Miss. 682; Jones v. State, 67 Miss.

Defendant asked Mr. Foster nothing relative to conversation between Miss Forbes and himself, and plaintiff was bound by whatever answers he made on cross-examination to her questions as to this immaterial matter. "If the testimony of a witness on cross-examination, in respect to a matter not brought out on the direct examination, is such that it would not be competent if offered by the cross-examiner, the same is collateral, and cannot be contradicted." Williams v. State, 73 Miss. 820; see also Gillett on Indirect and Collateral Evidence, sec. 90, p. 135.

In V. & M. R. R. Co. v. McGowan, cited above, this court reversed the judgment in plaintiff's favor because the lower court permitted plaintiff to introduce evidence to contradict the engineer as to an immaterial matter.

The court erred in refusing to sustain the motion of defendant to exclude certain testimony relative to a conversation that took place, in absence of defendant, between plaintiff and W. J. Foster, when W. J. Foster called at plaintiff's residence to see her only a few days before the trial, and especially in refusing to strike out or exclude the following question asked plaintiff and her answer relative to said conversation--to wit:

"Ques. When Mr. Foster came down to see you, did he make a statement to you in which he said: 'I take great blame for that accident myself?'

"Ans. I cannot say whether he did say that exactly, but he said, 'I take great blame,' or he said, 'I blame myself for this accident; and my reply was: 'Somebody was to blame, certainly.'"

Dabney & McCabe, for appellee.

Certainly plaintiff had the right to testify that the statement of Foster, that he had notified her that they were approaching the elevator and that they were at it, and that she was warned of its presence, was untrue. The further testimony of hers, that Foster said nothing when she told him she was not warned, when he was officiously visiting her house, is wholly immaterial. He had testified to the same thing himself without objection, and it was a mere repetition of his statement and could do no harm.

Foster says on cross-examination, that he had not said to the plaintiff on the occasion of his officious visit to her house, manifestly in the interest of his employer, that he took the blame upon himself in the matter, but denies it. His testimony in the case, if true, shows that he was not to blame. He testifies in effect that he had used all reasonable precautions to guard the plaintiff against falling into that hole. He testified to having warned her from the time they were approaching the elevator until the moment that she was falling into it. If he said to her, when he was visiting her that he took the blame on himself, he was making a...