87 Pa. 124 | Pa. | 1878
delivered the opinion of the court,
The assignments of error, from one to seven inclusive, allege that the court below erred in overruling the objections to the questions put to Henry B. Hertzler, a witness on behalf of the plaintiffs below. The questions were objected to on two grounds, viz: 1. That they were not properly rebuttal; and 2. That they were leading. The first does not need an extended discussion. It is sufficient to say that it has been repeatedly held that the admission of evidence not strictly in rebuttal is in the discretion of the court and not error; the latest case being Vandyke v. Townsend, decided at the last term of this court, 6 W. N. C. 55. The exercise of a discretion is not reviewable here unless for gross abuse.
Nor have we any difficulty as to the second ground of objection. While there are instances in the books where judgments have been reversed for the refusal to allow leading questions where the party was entitled to put them, I know of no reversal in Pennsylvania for allowing a leading question. Susquehanna Coal Co. v. Quick, 11 P. F. Smith 328, is not an exception, as in that case there were a number of other assignments of error which were sustained. The reason for this is manifest. The form of a question, whether it shall be put as leading or otherwise, depends not upon an inflexible rule, but upon a variety of circumstances which must of necessity be left to the discretion of the court below. Thus a party may be surprised by his own witness, and after he has placed him on the stand, discover that he is hostile, in which case it is settled law that he may be asked leading questions as if upon cross-examination. The rule is thus laid down in Starkie on Evidence 147 : “ Thus a party’s own witness, who, having given one account of the matter,
Had the questions been put in the alternative they Avould have
The remaining assignments of error were not pressed, and need not be discussed.
The judgment in each case is affirmed.