Wendt v. Chicago, St. P., M. & O.R. Co.

• Citation: 57 N.W. 226,4 S.D. 476
• Parties: WENDT v. CHICAGO, ST. P., M. & O. RY. CO.
• Decision Date: 20 December 1893
• Court: South Dakota Supreme Court

57 N.W. 226

4 S.D. 476

WENDT v. CHICAGO, ST. P., M. & O. RY. CO.

Supreme Court of South Dakota

December 20, 1893

Syllabus by the Court.

1. A party, in cross-examining a witness, cannot go beyond the subject-matter of his examination in chief, except to show his bias or prejudice, or to lay the foundation for discrediting his evidence, by showing that he had made prior contradictory statements. Within these limits, the law permits the examination of the witness as to every fact touching the matter to which he testified on his examination in chief, so that his temper, leanings, relation to the parties and the cause, his intelligence, accuracy of his memory, his disposition to tell the truth, his means of knowledge, his general and particular acquaintance with the subject-matter, may be fully interrogated.

2. The rule that a party who has not opened his own case will not be permitted to introduce it to the jury by a cross-examination of the witnesses of the adverse party, applies only to such matters as the examining party has pleaded affirmatively as a defense, counterclaim, or reply, and does not apply when a defendant, on cross-examination of the plaintiff's witness, simply aims to disprove by the witness the case which the witness himself has made.

3. A party, on the cross or re-examination of a witness, is only entitled to call out the entire conversation, a part of which has been given by the witness, so far as it relates to the same subject-matter.

4. A party is not entitled, under the rule that he has a right to the whole conversation, of which a part has been given, to a conversation relating to some other subject, or which occurred at another time or place.

5. When a question asked a witness is not objectionable of itself but the answer is not responsive thereto, and goes beyond the question, and the answer contains improper or incompetent evidence, a motion to strike out the answer, or so much as may not be responsive to the question, or as may be improper or incompetent, may be made; and the fact that the party did not object to the question does not preclude him from making the motion to strike out such answer.

6. It is only when the question itself is subject to objection, and no objection is made thereto, and the answer is responsive to the question, that the rule applies that one who sits by during the reception of incompetent or improper evidence without objecting thereto, and thus takes his chance of advantage to be derived by him therefrom, has not, when he finds such evidence prejudicial to his case, a legal right to require the same to be stricken out.

7. A statement made by a section foreman of a railroad the day after a fire occurred which is claimed to have destroyed plaintiff's property, and while such section foreman is on or at the railroad track, at or near which the fire is claimed to have started, that: "Certain it was started right here. Now I shall catch hell, because of the fire getting away,"--is incompetent evidence, and should under the facts in this case, have been stricken out on motion made by defendant's counsel.

8. The statements, representations, or admissions of an agent, to be admissible in evidence to bind his principal, must have been made at the time of doing the act he is authorized to do, and must have been concerning the act he was doing, either while actually engaged in the transaction or so soon thereafter as to be in reality a part of the transaction, and constitute a part of the res gestae.

9. When error is shown in the refusal of the court to strike out material incompetent evidence, the presumption is that prejudice resulted to the party; and, unless this court can see that no such result ensued, the case must be reversed and a new trial granted.

Appeal from Minnehaha county court; E. Parliman, Judge.

Action by William Wendt against the Chicago, St. Paul, Minneapolis & Omaha Railway Company. There was judgment for plaintiff, from which, and an order denying a new trial, defendant appeals. Reversed.

Keith & Bates, for appellant. Cherry & Powers, for respondent.

CORSON J.

This was an action to recover damages sustained by plaintiff for the loss of hay and grass destroyed and machinery damaged by a fire alleged to have been caused by the negligence of the defendant. The case was tried by a jury, and verdict and judgment rendered in favor of the plaintiff, from which judgment, and order denying a motion for a new trial, the defendant appeals.

It was alleged in the complaint that the defendant negligently permitted dry grass and other combustible material to accumulate upon its right of way; that the defendant negligently caused the same to be set on fire by a passing engine; and that the said fire was permitted by the negligence of the defendant to extend to the premises of the plaintiff, causing the damage complained of. The answer was a general denial, except as to certain facts admitted, not necessary to be noticed. One of the important facts therefore, to be established by the plaintiff on the trial was the starting of the fire on the defendant's right of way. This fact, and the value of the property destroyed, constituted the principal issues in the case.

On the trial the plaintiff was called as a witness on his own behalf, and examined very fully as to the nature, character, and value of the hay and grass burned and the machinery damaged, by his own counsel. On cross-examination the appellant's counsel examined him upon the same subjects, and asked him as to certain conversations between himself and one Haffey, a section foreman on the defendant's road on which the fire was alleged to have originated, and as to statements made by him to Haffey as to the amount and value of the hay and grass destroyed and machinery injured, the value of which plaintiff was seeking to recover. The witness testified as to the conversation between himself and Haffey as to the amount and value of the hay and grass, machinery, etc., but denied making certain statements to Haffey in reference thereto, called to his attention by the counsel for appellant. Upon his re-examination by counsel for the respondent he was asked and answered the following questions: "Q. Mr. Keith asked you in regard to a conversation that took place between you and Mr. Haffey? A. Yes, sir. Q. You have not stated the whole of that conversation, have you? A. No, sir; I guess not. Q. Just detail the whole conversation. A. Well, he came there to my house, and wanted me to go along with him, and went past the stack there; and he wanted to know how much I thought was there, and I gave him my idea. Q. How much did you tell him there was in the stack? A. I told him I thought eleven ton. And we went on to the railroad track, to see and satisfy ourselves where the fire started. I was not sure where the fire started, for the fire had got a big headway. Q. You went to the railroad track for what purpose? A. Well, he hadn't been down there. He was dissatisfied as to where the fire originated, and then he says, 'Certain it was started right here. Now,' he says, 'I will catch hell.' Says I, 'Why?' 'Well,' he says, 'because of the fire getting away.' Says I, 'They cannot say nothing as long as they keep you."' Defendant's counsel objected to the conversation detailed with Mr. Haffey, and moved to strike out the answer of the witness in regard thereto, upon the ground that it is incompetent, immaterial, and not binding in any way upon the defendant in this action; and there is no proof that Mr. Haffey had any authority from the company, or could make any statement to bind it; that this conversation occurred some time after the fire, and was no part of the res gestae, and is not responsive to the question. The counsel for appellant contends that in denying appellant's motion the court erred, and for this error appellant is entitled to a new trial.

The cross-examination of the witness was confined to the conversation between himself and Haffey as to the amount and value of the hay and grass destroyed and the machinery injured. No question was asked him by counsel for appellant in reference to the place where the fire originated, or as to conversations in regard thereto. It is insisted by counsel for the respondent that the counsel for appellant should have objected to the question, and that by his failure to do so he...