Mississippi Central Railroad v. Dacus

Anderson, J., delivered the opinion of the court in response to the suggestion of error. This ease was affirmed, without a written opinion, because in the judgment of the court the principles of law involved were settled by decisions of this court not difficult of application to the facts, and therefore such opinion would be without benefit to the bench and bar. After a most careful reconsideration of the case we find no ground for reversal, and out of deference to counsel’s ability and evident confidence in the correctness of his position we now undertake to set down the reasoning by which we reach this conclusion. Dunn, a flagman on the train on which the injury occurred and a witness for appellant, testified that he called the conductor’s attention to the fact that appellee was on the rear of the train; that later he saw him get off, and the conductor did not kick him off. On cross-examination, witness denied he had stated to appellee’s attorney, in the presence of Cecil Eure, that the conductor, Booker, kicked appellee off of the train, and he had a good case against the company. Eure testified in rebuttal for appellee as follows, to which testimony ' appellant’s attorney objected, on which objection the court ruled, and exception thereto taken, as herein-before set out: “Q. Will you please tell the jury what Mr. Dunn said in answer to any questions that I asked him about Mr. Booker kicking this man Dacus off the train at that particular time? (Defendant’s Attorney: I object; it is an attempt to impeach the witness about an immaterial matter. By the Court: Overruled. Defendant’s Attorney: Exception.) A. You want me to tell the whole thing ? Q. Yes, sir. A. I believe the question was asked me what was said in the office. Well, we were [774] first talking about getting Mr. Dunn relieved from— I tbink Mr. Johnson [defendant’s attorney] first said that he had a suit against the Mississippi Central Railroad Company about a negro being kicked off of the train somewhere, and Mr. Dunn spoke up and said, “That was Booker that kicked him off, and’ he says, ‘.I think you have- a pretty good case against them.’ Q. That was at the time Mr. Dunn came to my office, when a Mr. Walter Merritt wanted to enlist my services in getting him reinstated with the railroad ? A. Yes, sir. (Defendant’s Attorney: The defendant moves the court to exclude that testimony, because it is an attempt to impeach the witness by offering contradictory statements involving the defendant itself, as decided in the case of Williams v. State, 72 Miss. 117, 16 South. 296. By the Court: Overruled. Defendant’s Attorney: Exception.)” It is insisted that the testimony of Eure was very damaging to appellant’s case, and is condemned by Tucker v. Donald, 60 Miss. 460, 45 Am. Rep. 416; Williams v. State, 73 Miss. 820, 19 South. 826; Garner v. Slate, 76 Miss. 515, 25 South. 363, and Cooper v. State, 94 Miss. 480, 49 South. 178, because its effect was to contradict the witness on a collateral issue. This court did hold in the cases referred to, and now reaffirms the principle, that testimony on behalf of one party to contradict testimony of witnesses for the adversary, drawn out on cross-examination, on collateral and immaterial issues, is not admissible. Is the testimony of Eure on an immaterial and collateral issue ? Our judgment is that it is not. The issue of fact before the jury was whether the conductor kicked appellee off of the train. That was the main .fact appellee relied on for recovery. In making the further statement, “I think you have a pretty good case against them,” it is evident, from the connection in which it was made, the speaker only intended to convey the idea in another form that appellee did not get off, but [775] was kicked.off of the train. Such a statement, taken alone, would be wholly immaterial, but not so here, where the plain purpose was to emphasize a fact already stated, and not to express an opinion as to the merits of the case generally. However, conceding, for the sake of the argument, that the language, “I think you have a pretty good case against them,” was immaterial, and therefore not the subject of contradiction, still the court committed no error, because the objection made was to the whole statement of the witness, part of which clearly bore directly on the issue. Specific objection should have been made to that part of the testimony, so as to give the court an opportunity to rule on it separately. Lipscomb v. State, 75 Miss. 559, 23 South. 210, 230; Brown v. State, 72 Miss. 95, 16 South. 202. Suggestion of error overruled.