152 N.E. 288 | Ind. Ct. App. | 1926
Appellee, while riding a bicycle on one of the streets in the City of Elkhart, was injured by reason of a collision with an automobile driven by appellant. Appellee, at the time of the collision, was traveling west while appellant was traveling east. Appellee filed a complaint alleging that his injuries were caused by reason of appellant's negligence. From a judgment in favor of appellee appellant appeals and contends that the court erred in overruling his motion for a new trial. Appellee insists that the evidence is not all in the record and that no question is presented for our consideration.
The judge certifies that the bill of exceptions contains all the evidence given and offered in the cause; that such bill is correct to his "personal" knowledge, except certain 1. exhibits, the originals of which were lost and which he certifies he did not see or inspect during the trial; that on application by appellant and after hearing evidence copies of such exhibits were incorporated in the bill of exceptions. The fact that copies of *481 such lost exhibits were incorporated in such bill which the trial judge certifies contains all the evidence given and offered in the cause is sufficient to bring the copies of the lost exhibits into the bill though the judge has no personal knowledge that they are correct copies of the originals.
Appellant contends the court erred in refusing to strike out certain parts of the deposition of R.G. Shiffler, a witness for appellee. This witness did not see the collision. He 2. testified that he lived near the place of the collision; that he went out and saw the people gathered there; saw several automobiles; saw one automobile which was identified as the one driven by appellant, and saw "skid-marks" which he described and which it could be inferred from the evidence were made by appellant's automobile.
The fact that the witness did not see the collision did not render him incompetent to describe what he saw in the way of marks on the pavement. This evidence was proper as tending to show how far appellant's automobile ran after the brakes were applied, as bearing on the speed that appellant was driving, and also as tending to show whether appellant was north or south of the center of the street. The weight to be attached to the evidence was for the jury.
A few days after the accident a lawyer, representing appellant's insurance carrier, interviewed several people who witnessed the accident and procured from them written 3. statements. The persons whose statements were so taken were witnesses for appellant. Later this lawyer, as a witness for appellant, testified concerning the making of these statements, the purpose of his testimony being to impeach the testimony of the persons who had made the written statements. On cross-examination he was asked if at the time he interviewed these witnesses and took their statements he was *482
not acting as the attorney and representative of the insurance carrier, and over appellant's objection he was required to answer. He then testified that when he took these statements he was representing the insurance company and that in a conversation with appellee at the time he took appellee's written statement, he told appellee he was representing the insurance company. There was no error in the action of the court in overruling the objection to this testimony. This evidence was proper as tending to impeach the testimony of the witness by showing an interest in the transactions, about which he had testified. The weight of the testimony was for the jury. The fact that this lawyer was afterwards employed by appellant and was one of the lawyers who appeared for appellant in this action did not alter the situation. The jury was correctly and fully instructed as to the purpose of this testimony and told that it could only be considered for the purpose of affecting the weight of the testimony of the witness. Moy Quon v. M. Furuya (1914),
The court refused to permit appellant to read in evidence certain written statements made by Jacob L. Miller and Jessie F. Smith, who were witnesses for appellee. Appellant insists 4. these statements were admissible for the purpose of proving statements made out of court inconsistent with the testimony given by those witnesses.
These witnesses on cross-examination admitted having signed the statements bearing their respective signatures and each of them was given an opportunity to examine the statement to which their respective signatures were attached. Miller testified as to the circumstances connected *483 with the preparation and signing of his statement. Mrs. Smith, while admitting that her signature was affixed to one of the statements, said she did not know whether it was in fact her statement. These statements purported to be sworn to before a notary public, and there was evidence sufficient to sustain a finding that before these statements were signed by them, they were read by, or to, the witnesses whose signatures they bore. The court refused to allow them to be read in evidence upon the ground that the proper foundation for their admission had not been laid.
It was the theory of the trial court that it was necessary for appellant on cross-examination of the witnesses to ask them concerning the contents of their respective statements and that in the absence of such an examination they were not admissible in evidence. The court applied the rule regulating the admission in evidence of inconsistent oral statements, to the admission of written statements. This was error.
The purpose of introducing prior statements of a witness contradicting his testimony is to show that the witness is capable of making errors in his testimony; to show either "a defect in the memory or in the honesty" of the witness. The object of the rule requiring that a witness on cross-examination must be asked whether he made the supposed contradictory statement is to warn him that it will be offered against him by testimony later produced, and to give him an opportunity to deny it, if he claims not to have made it, or to explain it, if he admits having made it. This rule is by no means an immemorial tradition. Wigmore on Evidence, 2 Ed. § 1026. It had its origin and birth in the responses of the Judges in 1820, in The Queen's Case, 2 B. B. 313, and was first applied in this state in Doed. Sutton v. Reagan (1839), 5 Blackf. 217, 33 Am. Dec. 466, where an attempt was made to impeach a witness by proving prior oral statements *484
contradictory to those made in court, and where the witness had not been asked about the previous statements. The method of laying the foundation for impeaching a witness by proving oral statements contradicting the statements of the witness while testifying is well established in this state. Joy v. State
(1860),
Our attention, however, has not been called to any case in this state discussing the method of laying the foundation for impeaching a witness by introducing prior written statements, and after a careful search we have been unable to find an Indiana case where the question was involved.
It is not necessary in the instant case for us to determine the extent to which a witness may be cross-examined, if at all, concerning the contents of the supposed contradictory writing. All we need to determine, is whether a proper foundation was laid for the introduction of the statements of the witnesses.
In Larkin v. Nassau Electric R. Co. (1912),
In Hanlon v. Ehrich (1904), supra, the court, after stating the rule relative to contradictory oral statements, said: "The rule as to documentary evidence, *486 which is to be used to contradict the oral testimony of a witness, is necessarily somewhat different, and has given rise to much discussion. Letters, affidavits, written statements, verified pleadings, depositions, and previous testimony of a witness are admissible to impeach him, if they are material to the issue upon which he is testifying, and if they tend to contradict or discredit him. When such a writing contains nothing except what is clearly contradictory of material testimony given by the witness, it would seem to fall within the general rule that a writing is not only the best evidence of what it contains, but the only evidence that is legally admissible of its contents, provided always that it is in existence and can be produced. In such a case the whole of the writing should be offered in evidence before it is allowed to be read. There are, however, many instances in which the writing contains much irrelevant and even incompetent matter, in addition to some parts that are material, competent, and contradictory of the witness. In such a case the proper rule would seem to be that only the material and competent parts should be received and read in evidence. In no event, however, should the writing, or any part thereof, be read until it has been marked in evidence. If the writing contains irrelevant or incompetent matter that cannot safely be submitted to a jury, it should be marked for identification, and the competent parts thereof read into the minutes, so as to form part of the record. As a matter of strict practice, the proper time to do this is when the counsel who desires to use the evidence has the case, but the courts may, in their discretion, properly permit it as a part of the cross-examination. This last mentioned feature of practice has apparently played some part in producing the impression that it is proper to interrogate a witness as to the contents of such a paper without introducing it in evidence either as a whole or in part, and this, in turn, is probably responsible *487 for some of the apparent diversity in the decisions. That diversity is more apparent than real, however, for it is to be remembered that appellate tribunals have to deal with concrete questions presented by the records as made, and not with abstract theories based upon technically correct rules."
In Momence Stone Co. v. Groves (1902),
In Chicago City Ry. Co. v. Matthieson (1904),
In Illinois Central R. Co. v. Wade (1903),
In Chicago, etc., R. Co. v. Cross (1905),
In Chicago, etc., R. Co. v. Artery (1890),
See also Camp v. Smith (1884),
The court also refused to permit appellant to read in evidence a written statement purporting to have been signed by appellee. The evidence is to the effect that this instrument was 5. prepared a few days after appellee was injured and while he was confined to his bed; that it was read over to him and because of his condition he did not sign it himself; that his name was signed by another who assisted appellee in making his "mark." The evidence was sufficient to authorize the introduction of this instrument in evidence, and the court erred in refusing to allow it to be read to the jury. *491 This is true whether it be viewed as the admission of a party or whether it be considered as a matter of impeachment.
Appellant is a physician and immediately after the accident administered first aid to appellee, after which he called an ambulance and took him to the hospital. After appellee was 6. taken to the hospital it was agreed that appellant as a physician should take charge of appellee and treat him for his injuries, and he did so treat him. On the trial appellee called appellant as a witness and interrogated him as to the character and extent of appellee's injuries and as to the treatment given appellee. Later when appellant was testifying as a witness in his own behalf he said he had a conversation with appellee at the hospital the next day after the accident. He was asked to tell what was said at that time. It having been shown that at that time appellant was appellee's physician, and as such was treating him for his injuries, appellee objected to the question for the reason that the statement made by appellee at that time was confidential. Appellant offered to prove that while at the hospital the next day after the accident he asked appellee "Why did you turn suddenly in front of my car?" and that in response to that question appellee said, "I was looking the other way, and had turned to my left, and did not see your car until it was upon me." This statement did not relate to any treatment of appellee, was not privileged, and the court erred in not allowing appellant to testify as to what appellee said in response to the question asked him.
As was said by the Supreme Court in Myers v. State (1922),
The conversation proposed to be proven did not relate to appellee's condition, and was not such as to render appellant an incompetent witness concerning the same. The objection to the introduction of this evidence should have been overruled.
Complaint is also made of the refusal of the court to submit certain interrogatories to the jury, to be answered by them in the event they rendered a general verdict. The first of 7. these interrogatories is as follows: "Were the plaintiff's injuries partly caused by any failure on his part to use care as an ordinary prudent person would have used under all of the circumstances as they existed at the time of and prior to the collision in question?" The others, in substance, asked *493
whether appellee's injuries were caused in part by any fault or want of care on his part which proximately contributed to his injuries. Each of the interrogatories asked the jury for conclusions resting on mingled questions of law and fact. The questions were not proper and the court did not err in refusing to submit them to the jury. Louisville, etc., R. Co. v.Pedigo (1886),
Complaint is made of the giving and the refusal to give certain instructions, but we find no reversible error in this regard. Other questions are discussed by appellant but they are not likely to arise on a retrial and need not be decided on this appeal.
Judgment reversed, with directions to sustain the motion for a new trial and for further proceedings.
Dausman, J., not participating.