Summary
In Kennedy v. Aron, 179 Miss. 458, 176 So. 127 (1937), a civil case, we held that it was reversible error to allow a witness to be contradicted on an immaterial matter.
Summary of this case from Price v. SimpsonOpinion
No. 32806.
September 27, 1937.
APPEAL AND ERROR. Witnesses.
In action for death of child killed by automobile, admission of impeaching evidence as to statements made by witness to effect that accident was unavoidable was prejudicial error, where witness admittedly could not have seen child or surface of highway at time of accident, or have had knowledge of circumstances surrounding the accident until he reached the scene thereof, notwithstanding instruction that such evidence could be considered only as affecting credibility of witness.
APPEAL from circuit court of Pontotoc county. HON. THOS. H. JOHNSTON, Judge.
J.B. Fontaine, of Pontotoc, and Geo. T. Chas. S. Mitchell, of Tupelo, for appellant.
The first assignment of error involves the action of the court below in admitting over the objection of appellant the testimony of the different witnesses for appllee to the effect that G.W. Kennedy, appellant, before he qualified as such administrator and before he could possibly have qualified as such administrator, stated to these different witnesses that it was an "unavoidable accident." It is claimed that he made this statement to different ones at the hospital before the little child had died; that he repeated this statement to others at the funeral of the little child, all these statements being at a time when he had no interest of any kind in the matter, save that natural interest that a grandfather has in the welfare of his grandchild, and at a time when such statements could not be a part of the res gestae. The testimony of G.W. Kennedy shows, and all the other testimony shows, that he did not see the collision and could not have seen same by reason of the embankment that obscured his view. All he knew was that he heard the screeching of the brakes and later on discovered the unconscious form of the little child. Therefore, any statement of G.W. Kennedy to the effect that the striking of the little child was an "unavoidable accident" is nothing on earth but the expression of an opinion based, not upon what he saw, but upon what he afterwards learned, if anything. Counsel for appellant strenuously objected in the court below to the admissibility of this testimony, but the court overruled our objection, not because the testimony had an evidential value as to what really occurred at the time of and immediately preceding the collision, but upon the ground that such testimony was competent in contradiction of G.W. Kennedy and went to his credibility as a witness. Had G.W. Kennedy seen and heard everything that happened at the time of the collision, he could have been contradicted with reference to any statement he made as to the particulars of the collision, but even then any expression of opinion by him as to whether or not the real facts constituted an "unavoidable accident" would most assuredly be incompetent for the reason that his conclusion that the accident was unavoidable would simply be his deductions and conclusions formed from the real facts in his knowledge and would, of course, be immaterial, irrelevant and incompetent. Especially is this true when the whole record shows that he did not see the collision and cannot possibly have known just how it happened. Even appellee admits in his testimony that Kennedy could not have seen the collision by reason of the embankment above referred to.
This being true, the court below permitted this witness to be contradicted upon an immaterial matter and this action of the court below was so clearly erroneous that we deem the citation of authority unnecessary. The doctrine we are here contending for is elementary. At the time of the making of the alleged statement to these different witnesses, G.W. Kennedy was not the agent of deceased, was not her guardian, was not the administrator of her estate, nor did he occupy any other fiduciary relationship to the dead girl. It is well settled that even in extreme cases where the statements or admissions of an agent, or other person occupying a fiduciary relationship, are admissible in evidence against his principal, the agency must have been in existence and the statements or admissions alleged must have been within the apparent scope of the authority of such person.
22 C.J. 407, par. 486; Standard Coffee Co. v. Carr, 157 So. 685.
When grossly incompetent testimony, such as this, is permitted to go the jury for one purpose, it necessarily goes to them for all purposes, regardless of any instruction of the court to the contrary. Any lawyer who has practiced for even a reasonable time knows that this is true, it matters not how honest the jury may be. Authority after authority might be cited on this proposition but we are willing to rest our contention upon one case, that of Cofer v. State, 130 So. 511.
Garner v. State, 76 Miss. 515, 25 So. 363; Williams v. State, 73 Miss. 820, 19 So. 826; R.R. Co. v. McGowan, 62 Miss. 682.
We therefore respectfully submit that the admission of this testimony by the court below constitutes reversible error, it matters not for what purpose it was admitted.
W.H. Inzer and A.M. Mitchell, both of Pontotoc, and C.A. Bratton, of Oxford, for appellee.
The appellant contends strongly that the opinion of Kennedy to the effect that the accident was "unvoidable" was "immaterial, irrelevant, and incompetent," and that we were permitted on the trial of this cause to impeach the witness about an immaterial and collateral matter.
We say that Kennedy was an eye witness to the accident, saw every movement of the driver of the car, every movement of the car itself, and while he says that on account of the bank obstructing his view he was unable to see the child, still he was the first person upon the scene to pick up the child and to view the whole situation. His opinion as to whether the accident was "unavoidable" or whether there was negligence would be a well grounded opinion, based on what he saw and on facts which he witnessed, and would in no sense be irrelevant to the issue in this trial. True, it would be incompetent as evidence if offered on direct testimony to support the appellee's case. But there is a distinction, not often drawn, between what is irrelevant and immaterial, and what is incompetent. "The meaning of the word `relevant' as applied to testimony, is that it directly touches upon the issue which the parties have made by their pleadings, so as to assist in getting at the truth of it." Platner v. Platner, 78 N.Y. 90, 95. "By `competent evidence' is meant that which the very nature of the thing to be proved requires as the fit and appropriate proof in the particular case." (Words Phrases). The opinion evidence under discussion would not have been competent if offered on direct examination, because that would not have been the fit and appropriate proof in the particular case. The witness would not be permitted to draw conclusions; that is the function for the jury, not to be usurped by the witness. But the evidence is rejected for incompetency and not for irrelevancy and immateriality.
Now, we admit that the rule is well settled in Mississippi that a witness may not be discredited by showing that statements made by him out of court are inconsistent with statements made by him in court unless the statements are material and relevant to the issue involved. That is, a cross-examining party will not be permitted to go afield and into the byways and hedges to find matter upon which to impeach a witness. He must stick to his lawsuit, and only use such matter in discrediting and witness as is closely enough connected with the issue involved to be considered relevant and material if offered in direct testimony to sustain his side of those issues. That is the rule, and that is the test, and we are not at odds with counsel for appellant about either. It is in the application of the rule that we think counsel for appellant is laboring under a misconception.
Pierce v. Sanden, 29 F.2d 87; Whipple v. Rich, 63 N.E. 5; Shinkle v. McCullough, 116 Ky. 960, 77 S.W. 196, 105 Am. St. Rep. 279.
In the case of Larkin v. Nassau Electric Railway Co., 98 N.E. 465, the Supreme Court of the State of New York, speaking through Collin, J., said: "If it is sought to prove the expression of an opinion inconsistent with the testimony, it is enough if the opinion is so incompatible with the facts testified to by the witness that an honest mind knowing the facts would not be likely to entertain the opinion. Repugnant statements or contraries cannot be true, and the fact that the witness has made them tends to show that he is untrustworthy through carelessness, an uncertain memory, or dishonesty. It is enough that the testimony and the statements are inconsistent and tend to prove differing facts."
Argued orally by C.A. Bratton, for appellee.
Dorothy May Davis, a child eight years of age, was struck and killed by an automobile driven by W.L. Aron on a highway near New Albany, Miss., and this suit was instituted by her grandfather, G.W. Kennedy as administrator of her estate, to recover damages for her death. On the trial of the cause there was a verdict and judgment in favor of the defendant, W.L. Aron, from which this appeal was prosecuted.
Appellee was driving south on highway No. 15, which runs north and south, and the child was struck about 75 feet south of the intersection of a highway running east and west with highway No. 15. At the point of the accident and for some distance north thereof highway No. 15 is straight. The store and residence of the administrator, G.W. Kennedy, is situated just southwest of the intersection of the two highways, and at the time of the accident he was sitting on the front porch of his store, in a position from which he could see the body of appellee's automobile, but on account of an intervening bank could not see the surface of the highway or the child. He testified that his attention was first attracted to the automobile by the noise of the sudden application of the brakes and the skidding of the car as it came to a stop against the western bank of the highway. He immediately ran to the scene and there found his granddaughter lying about 10 feet behind the automobile. The child was then unconscious and so seriously injured that she died shortly thereafter.
There is but one assignment of error that we deem necessary to consider. On his cross-examination, G.W. Kennedy was asked whether he had stated to, or in the presence of, numerous parties on different occasions before his appointment as administrator that the accident was unavoidable. He denied making such statement to some of the named parties, and as to the others he simply stated that he did not remember. To contradict the witness in this respect, over the objections of the appellant, the appellee was permitted to show by numerous witnesses that he had stated in their presence that the accident and the death of his granddaughter were unavoidable. The admission of this evidence is assigned as error, and we think it was reversible error, although the jury was instructed that such testimony could only be considered as affecting the credibility of the witness Kennedy.
Upon this question the case of Cofer v. State, 158 Miss. 493, 130 So. 511, and the cases therein cited and discussed are controlling. The witness testified and the appellee admitted, that on account of the intervening embankment he could not see the surface of the highway or the child at the time of the accident, and the evidence establishes that this witness did not know that the child was in or immediately adjacent to the road, and could not have known when she came into the road, or the circumstances immediately connected with striking her, or that she had been struck by the automobile until he reached the scene. Consequently, any opinion that he may have expressed to the effect that the accident and injury were unavoidable was without any factual basis, and was thereof incompetent, irrelevant, and immaterial matter about which it was not competent to contradict or impeach him. For the error in admitting this impeaching testimony the judgment of the court below will be reversed and the cause remanded.
Reversed and remanded.