St. Louis Southwestern Ry. Co. of Texas v. Bishop

• Decision Date: 13 January 1927
• Docket Number: (No. 462.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 291 S.W. 343
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. BISHOP.
• Court: Texas Court of Appeals

291 S.W. 343

ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. BISHOP.

(No. 462.)^*

Court of Civil Appeals of Texas. Waco.

January 13, 1927.

Rehearing Denied February 10, 1927.

Appeal from District Court, Hill County; W. C. Wear, Special Judge.

Action by H. C. Bishop, administrator of the estate of R. C. Carroll, deceased, against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals. Affirmed.

E. B. Perkins, of Dallas, and Collins, Dupree & Crenshaw, of Hillsboro, for appellant.

Will M. Martin, of Hillsboro, and Edwards & Hughes, of Tyler, for appellee.

GALLAGHER, C. J.

Appellee, H. C. Bishop, in his capacity as administrator of the estate of R. C. Carroll, deceased, sued appellant, St. Louis Southwestern Railway Company of Texas, to recover, for the use and benefit of the surviving widow and minor children of said decedent, damages for his death, which appellee alleged was caused by the negligence of appellant, its agents, servants, and employees. The deceased at the time of the accident which resulted in his death was employed as a brakeman on appellant's local freight train then making its regular run from Corsicana to Waco. He attempted to pass over the cars from the caboose to the front end of the train while the same was in motion, and fell therefrom to the track and was run over and instantly killed. The case was submitted to a jury on special issues. In answer thereto the jury found: (a) That appellant failed to keep and maintain its roadbed at the time and place in question in a condition reasonably safe for the deceased in the discharge of his duties as brakeman, and that such failure was negligence and such negligence a proximate cause of the death of the deceased; (b) that appellant and its employees failed to require and exercise reasonable care to operate its train with reasonable control of the speed thereof, and that such failure was negligence, and that such negligence was a proximate cause of the death of the deceased; (c) that the deceased did not assume the risk of being injured and killed as he was, and that he was not guilty of contributory negligence; (d) that the widow and minor children of the deceased sustained damages by reason of his death in the sum of $27,000, and that $7,000 thereof should be apportioned to an afflicted child, $5,000 thereof to the surviving widow, and $5,000 to each of the other three minor children of the deceased. The judgment of the court awarded appellee a recovery for the use and benefit of said surviving wife and minor children of the deceased in accordance with the terms of the verdict. Said judgment is here presented for review.

Opinion.

Appellant presents as ground for reversal the action of the court in excluding a certain affidavit offered in evidence by it for the purpose of impeaching appellee's witness John Sullivan. Sullivan's testimony was taken by deposition. He testified, in answer to cross-interrogatories propounded to him by appellant:

"That on June 25, 1925, he made a sworn statement relative to this accident and swore to the same on the 25th day of June, 1925, before J. G. Gammell, notary public in and for Limestone county, Tex.; that that was the only sworn statement he made on that date before J. G. Gammell with reference to said accident; that he signed, swore to, and delivered said statement to Mr. Gammell in the presence of L. P. Craft; and that that was the only statement that he signed, swore to, and delivered to J. G. Gammell in the presence of L. P. Craft; that he made the affidavit at the request of Mr. Craft, but that the affidavit did not include all the statements that he made to Mr. Craft at the time, as he told him some facts that were not written in the affidavit, but that in so far as the affidavit went it did tell the facts as he saw them at the time of the accident."

No other predicate for the introduction of said affidavit for the purpose of impeaching said witness was laid. The depositions of said witness were read in evidence on the trial, and he testified therein to facts and circumstances very material to appellee's case. Appellant, at the proper time, for the purpose of impeaching said witness, offered said affidavit in evidence. It contained statements on material matters inconsistent with and contradictory of the facts testified to in said depositions. Appellee objected to the introduction of said affidavit on the ground that no predicate therefor had been laid. The court sustained the objection and excluded the affidavit.

Appellant asserts that the admission of a witness that he signed a particular writing is a sufficient predicate for its admission in evidence for impeachment purposes. Appellee asserts that, whether the statement sought to be introduced for impeachment purposes be written or verbal, the witness must be asked specifically whether he did or did not make the particular statements sought to be proved, so that where there is an apparent variance between his present testimony and such statement, he shall have his attention directly called thereto and have an opportunity to explain the same. Where the purpose is to impeach a witness by a prior contradictory statement made verbally, the authorities support appellee's contention with practical unanimity. 2 Wigmore on Evidence, § 1019, p. 463. Mr. Wigmore declares the reason for said rule to be as follows:

"It has already been noticed (ante, § 1019), that to obviate the objection of unfair surprise a natural expedient is to ask the witness while on the stand under cross-examination, whether he made the supposed contradictory statement. He is thus warned that it will be offered against him by testimony later produced and he may thus either prepare to deny it if he claims not to have made it, or explain it if he admits having made it." (Italics author's.) Id. § 1025, p. 472.

Mr. Wigmore further states that the above rule had its origin in the Queen's Case, 2 B. & B. 284. Id. § 1026, p. 473. That that is a distinction between a prior verbal statement contradicting the testimony given by the witness at the trial and a written one of the same import is recognized in that case. It was therefore further held therein:

"When a witness is to be asked on cross-examination as to the terms of a document written or signed by him, the document must be at the time produced and shown or read aloud to him before he can be asked as to its contents; in other words, he cannot be asked whether or not he said such and such things in the document but the supposed document must be first shown to him before any questions upon its contents are allowable." (Italics author's.) Id. § 1259, p. 876.

See, also, 40 Cyc. pp. 2732-2735.

Mr. Wigmore, with reference to the application of such rule, says:

"Opposing counsel, as well as the witness, is entitled to inspect the document at least before the witness leaves the stand; so as to be enabled to discover explanatory features therein and to re-examine the witness upon it." (Italics author's.) 2 Wigmore on Evidence, § 1261, subd. 5, p. 888.

See, also, 3 Wigmore on Evidence, § 1861, pp. 994, 995. In this practical way all reasonable objections on the ground of surprise or lack of opportunity for explanation are obviated. The authorities cited by appellant in support of its contention, none of which are from Texas courts, are based on said rule, and recognize that the written statement should be produced and submitted to the witness for examination.

This rule with reference to the necessary predicate for impeachment by contradictory written statements did not meet with universal approval. The principal criticism was that it lessened the effectiveness of cross-examination by depriving the examiner of an opportunity to test the recollection of the witness and his veracity with reference to the contents of the writing inquired about before he knew as a fact that such writing was in the possession of the examiner and that he was prepared to produce it. 2 Wigmore on Evidence, § 1260, subd. (4), p. 881. Mr. Wigmore says that such rule also had its origin in said Queen's Case, that it had never before been advanced, and that it was shortly thereafter expressly annulled in England by legislative action. Id. § 1259, pp. 876, 877. After such action, according to Mr. Wigmore, the necessity in such cases for producing and reading the writing was dispensed with, and cross-examination of witnesses on the contents of such writings for predicate purposes permitted without such production or reading. Of course if the witness on cross-examination denied the statements made in the writing, such writing was admissible for the purpose of impeachment and was itself the best evidence of its contents. Id. § 1263, p. 890. Our Supreme Court at an early date recognized the right of a witness and of the party offering and relying on his testimony to have the predicate for his attempted impeachment disclose the specific statement deemed to be contradictory of his testimony at the trial, without distinction between verbal and written statements, so that the right of explanation might be safeguarded. Bigham v. Carr, 21 Tex. 142, 147; Weir v. McGee, 25 Tex. Supp. 20, 32, 33; Ayres v. Duprey, 27 Tex. 593, 597, 598, 600, 86 Am. Dec. 657; Alexander v. Lewis, 47 Tex. 481, 492; Johnson v. Richardson, 52 Tex. 481, 495; Marx v. Heidenheimer, 63 Tex. 304, 306. The Court of Civil Appeals for the Third District, in the case of Missouri, K. & T. Ry. Co. v. Calnon, 20 Tex. Civ. App. 697, 50 S. W. 422, 424, held that a party had the right, in order to lay a predicate to impeach a witness if he denied the statement attributed to him, to ask him whether or not he had made such statement, even though it were made in writing, and the Supreme Court refused a writ of error. See, also, Burleson v. Collins (Tex. Civ. App.) 28 S. W. 898, 900 (writ refused); Lloyd & Son v. Kerley (Tex. Civ. App.) 106 S. W. 696, 697; Texarkana Gas &...