Farmers' Mutual Fire Ins. v. Bair & Shenk, 87 Pa. 124

Farmers' Mutual Fire Ins. v. Bair & Shenk

87 Pa. 124 | Pa. | 1878

Mr. Justice Paxson

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, *128when called on the trial gives a different account, may be asked by the .party calling him, whether he had given such account, stating it, to the attorney ; and if a witness called stands in a situation which of necessity makes him adverse to the party calling him, counsel may cross-examine him.” The mere manner of the witness when on the stand may be such as to justify the court in permitting leading questions. It is needless to multiply instances. It is said in Sharswood’s notes to Starkie, at page 150, that “ the allowance of a leading question is within the discretion of the court, and not the subject of a writ of error, although the refusal to allow a party to put a leading question who is entitled to do so upon cross-examination isand a number of authorities are cited in support of the text. The same doctrine is laid down in Greenleaf, § 435. We are not obliged to go so far in this case, however. The witness Hertzler was called by the plaintiffs to contradict Hendrickson, a witness called by the defendants, after the ground had been previously laid by the cross-examination of Hendrickson. Thus, taking the first assignment of error as an illustration, Hendrickson had been asked upon his cross-examination: “ Did you not state to Mr. Barr, in presence of H. B. Hertzler, that his policy would soon expire ; that he must not neglect it ?” The ground having thus been laid, the plaintiffs called Mr. Hertzler to the stand to contradict Hendrickson as to this particular matter. How was this to be done ? Clearly by putting the question to the witness in the same language in which it had been put to Hendrickson. Hertzler was therefore asked, “Did Mr. Hendrickson state to John K. Barr in your presence that his policy of insurance would soon expire, and that he must not neglect it?” Nothing less than this would have been just to the witness sought to be contradicted. Nothing less would amount to a contradiction. Unless it is a denial in terms it is no denial at all. I have always understood this to be the practice, and I am not aware of any authority against it. The only case cited in opposition to this view, Susquehanna Coal Co. v. Quick, supra, has no application. In that case the witness, Quick, was not called to contradict anything that another witness had said, but merely to prove what occurred at a conversation. The witness having been asked a question clearly leading, it was very properly held to have been improper. The rule is laid down in Starkie, at page 148, to be: “ So, where a witness is called in order to contradict the testimony of a former witness, who has stated that such and such expressions were used, or such and such things were said, it is the usual practice to ask whether those particular expressions were used, or those things were said Avithout putting the question in general form by inquiring what was said. If this Avere not to be alloAved, it is obvious that much irrelevant and inadmissible matter would frequently be detailed by the witness.”

Had the questions been put in the alternative they Avould have *129been entirely free from objection. As it is, they furnish no ground for reversal.

The remaining assignments of error were not pressed, and need not be discussed.

The judgment in each case is affirmed.