Capital Traction Co. v. Hoover

Mr. Justice Anderson of the Supreme Court of the District of Columbia, who sat with the Court in the hearing and determination of this appeal in the place of Mr. Justice Van Orsdel, delivered the opinion of the Court: Without reviewing the evidence in detail in this opinion, it is sufficient to say that the request for a peremptory instruction, either upon the claim of variance between the pleadings and proof, or upon the claim of insufficient evidence to be submitted to the jury, is wholly without support, and that the instruction granted by the learned justice below and constituting the subject of appellant’s second assignment was clearly proper, as was also his refusal to grant the instruction involved in the fourth assignment. 2. The only other question involved in the appeal is that raised by the first assignment of error, relating to the refusal of the learned trial justice to permit counsel for appellant to see and inspect a.paper (exhibit Jackson 2), which was shown by counsel for appellee to the witness Jackson, while upon the witness stand and in the presence of the jury, and identified and also read by the witness, but which was not offered in evidence. The record shows that this occurred at the close of the redirect [253] examination of the witness (rec. 17-8), and therefore could not have had the effect of refreshing the witness’s recollection or otherwise prejudicing appellant in the direct, cross, or redirect examination of the witness. Moreover, the brief recross-examination of the witness by appellant was of a nature which could not have been affected thereby. While, therefore, no prejudicial error can be predicated in this case upon the failure to permit appellant’s counsel to inspect the paper in question, the correct and safer practice is to permit opposing counsel to see any paper shown to, and read by, a witness while upon the stand, though such is not required where the paper is merely identified, and not read, by the witness. Arnold v. Chesebrough, 30 Fed. 145, Calderon v. O’Donahue, 47 Fed. 39. A door for great abuse would be opened if papers could be shown to, and read by, a witness, and the opposite party kept in ignorance of their contents. The judgment below is affirmed, with costs.