162 Mich. 679 | Mich. | 1910
Lead Opinion
Plaintiff sued defendant in assumpsit to recover on an account which he claims was incurred by defendant between the years 1870 and 1886. In compliance with a demand, plaintiff filed a bill of particulars showing 25 separate items, aggregating $3,065.85. It was claimed by plaintiff that defendant made various payments upon the account from 1870 to 1886. Since 1883 defendant has resided outside of the State.
Defendant denied that he had ever received any money from plaintiff. He admitted that, while attending medical college in Montreal, he had received money from
It is assigned as error that plaintiff’s counsel was permitted to read to plaintiff while on the witness stand certain items in the bill of particulars, and to ask leading questions thereon to refresh his recollection. It appears from the record that the bill of particulars had been prepared from memoranda furnished by the plaintiff to his counsel, and some of them were in the handwriting of plaintiff. Plaintiff’s eyesight was so poor that he. could not read, but could identify, his memoranda. The plaintiff while testifying could not recall the items nor the dates of them without prompting. Under these circumstances, the court permitted counsel to read to plaintiff certain items from the bill of particulars, and to ask some leading questions to refresh his recollection. It is within the discretion of the trial judge to permit leading questions to be asked of a witness (Webb v. Feathers’ Estate, 119 Mich. 475 [78 N. W. 550]), and, under the circumstances as they existed here, we see nothing which would justify us in saying that the trial judge abused that discretion.
Defendant insists that the trial court was in error when he permitted the plaintiff to testify to certain payments which he claims were made by defendant, because they were not shown by plaintiff’s bill of particulars. This raises the question as to whether the plaintiff’s bill of particulars must show credit as well as debit items. It is not our understanding that the rule requires plaintiff’s bill of particulars to show credit items. Ryckman v. Haight, 15 Johns. (N. Y.) 222. In the case before us defendant demanded a bill of particulars of plaintiff’s claim for
Another error relied upon by defendant’s counsel is that his right of cross-examination was unduly abridged by the trial court. Plaintiff’s counsel called the defendant as a witness to show that he had resided outside of the State since the year 1883. He examined him upon no other subject. Defendant’s counsel then claimed the right to cross-examine the witness upon that and other subjects. Plaintiff’s counsel objected to this, and insisted that the rule of cross-examination would not permit him to cross-examine on any other subject than the one on which the witness was examined in chief. The court held this to be the rule. We think the court was in error in this ruling. The plaintiff made the defendant his witness, and he was sworn and testified in his behalf. This gave defendant’s counsel the right, under the well-settled rule in Michigan, to cross-examine him upon any material question in the case. People v. Barker, 60 Mich. 277 (27 N. W. 539, 1 Am. St. Rep. 501); Ireland v. Railroad Co., 79 Mich. 163 (44 N. W. 426); Hemminger v. Assurance Co., 95 Mich. 355 (54 N. W. 949). And the fact that the witness was one of the parties to the case rather than a third party would not create an exception to the rule. New York Iron Mine v. Negaunee Bank, 39 Mich. 644. After the ruling of the court, defendant took the witness stand and testified in his own behalf, and went into the issues fully, and, for
The judgment of the trial court is affirmed.
Concurrence Opinion
I concur in the result upon the ground of waiver, but doubt the propriety of holding that a defendant may make his defense on cross-examination by his own counsel whenever he shall have been called upon a single point by his adversary.