Louisville N. R. Co. v. Martin , 240 Ala. 124 ( 1940 )

At the very outset of the direct examination of the expert witness Couch, plaintiff had him to say: "I am a locomotive engineer. I have had experience as a locomotive engineer. I am a member of the Brotherhood of Engineers of the State of Alabama."

We think it clear enough it may be reasonably inferred from this proof that the witness had continuously remained in good standing in railroad circles. To the average layman the language used would, in our opinion, carry such an implication. Perhaps, strictly speaking, as argued by plaintiff, such might not be the case. But unexplained we think the average juror would so conclude. Certainly the membership of the witness in the Brotherhood was elicited for some purpose and to make some character of impression upon the jury, other than his mere experience and qualifications as an engineer, as to which he fully testified.

We do not think, as plaintiff contends, that defendants had the benefit of testimony that would serve to counteract the implication referred to. In the course of further cross-examination and referring to the distance of the whistle, the witness said he had "never measured it. It has been several years since I had my hand on one". And in another part of his examination the witness stated he "left the Seaboard May 10, 1929. That is not the last experience I had on a railroad." He further stated he worked for the Southern Railway at one time "something like two and a half or three years". But these scattered statements fall far short of giving defendants the benefit of the answer their questions sought to elicit from the witness. We therefore reaffirm our original view that this cross-examination was proper and too narrowly restricted.

We were impressed, and so stated, that the question of bias or prejudice presented a stronger reason for this character of cross-examination and plaintiff counters with the argument that as a condition precedent to such a question the witness must first be asked as to his state of feeling towards the defendant, citing Southern Railway Co. v. Harrison, 191 Ala. 436,67 So. 597; Smith v. Clemmons, 216 Ala. 52, 112 So. 442; Union Mutual Ins. Co. v. Peavy, 24 Ala. App. 116, 133 So. 300; U.S. Lumber Cotton Co. v. Cole, 202 Ala. 688, 81 So. 664. But if the questions were, however, otherwise permissible, this argument would, of course, be inapplicable and we have so concluded as above indicated.

But this aside for the moment, and considering the questions from plaintiff's viewpoint, we still think the argument stresses too far any such precedent requirement. Much depends upon the particular case, for in some instances an admission of bias would suffice to end the matter, as illustrated in Smith v. Clemmons, supra; Southern Railway Co. v. Harrison, supra, and Union Mutual Ins. Co. v. Peavy, supra. And in the Harrison case, supra, it would seem the admitted facts suffice for the purpose in hand.

The case of U.S. Lumber Cotton Co. v. Cole, supra, did not deal with cross-examination but with independent proof to show bias, treated in Allen v. Fincher, 187 Ala. 599, 65 So. 946; cited in note 16 A.L.R. p. 994, where other authorities of this state are collected and wherein the author of the note attempts differentiation of our cases upon the line of reasoning employed in Sexton v. State, 13 Ala. App. 84, 69 So. 341. But we are at present dealing with the matter of cross-examination of the witness and these latter authorities are therefore not here controlling. Neither are our authorities or those from elsewhere intended to require in every case, as a condition precedent as to any question on cross-examination tending to show bias, that the witness must first be asked the state of his feelings. Illustrations abound to the contrary.

In Martin v. State, 125 Ala. 64, 28 So. 92, and Motley v. State, 207 Ala. 640, 93 So. 508, 27 A.L.R. 276; Shepherd v. State, 135 Ala. 9, 33 So. 266, and National Surety Company v. Boone, 227 Ala. 599, 151 So. 447, no such condition precedent was suggested and no such question asked. Numerous other cases of like import (illicit relations between witness and accused to show bias) are found in the note to the Motley case in 27 A.L.R. p. 276.

In Motley v. State, supra, the case of Fincher v. State,58 Ala. 215 (likewise noted in Curlee v. State, ante, p. 16,195 So. 430) is approvingly cited to the effect that even though the witness admits unfriendly feeling, the adverse party may go further and show its foundation and extent by reference to conduct and declarations and circumstances but without entering into particulars.

There the court further observed:

"This is not denying the rule that the details of a quarrel or difficulty cannot be gone into for the purpose of showing hostility. But it is proper, even before the witness has denied hostility or bias, to inquire as to their existence because of some designated fact or transaction affecting the witness and his relation to the party. This is well illustrated in the case of Sanford v. State, 143 Ala. 78, 39 So. 370, where it was held error to exclude the defendant's question to a state's witness: 'Is it not a fact that you and Sanford are unfriendly on account of a whisky bill you owe him?' That case cannot be distinguished in principle from the case before us. A similar example will be found in Shepherd v. State, 135 Ala. 9,33 So. 266.

"Of course the details of the illicit relation cannot be inquired into, and the questions propounded did not undertake to do so. Fincher v. State, 58 Ala. 215. We have held that those questions were proper on the cross-examination of the witness Willie Houston."

The case of Fincher v. State, 58 Ala. 215, is a striking example that a mere admission of bias on the part of a witness need not necessarily end the matter. There the witness admitted a hostile feeling towards the defendant and that the two were not on speaking terms. But it was held error to reverse to refuse on cross-examination the question which sought to elicit a hostile declaration made by the witness, the court saying: "The extent of the hostility of the witness, is the subject of just inquiry. It is not enough, and the door to further cross-examination is not closed, so that it does not descend to the particulars of the controversy between the witness and the party, by the mere statement of the witness that he is hostile to the party against whom he is testifying. The party has the right to go further, and show that the hostility is malignant and that the witness has the inclination, and would not scruple at the means or manner of doing him the most grievous injury. We hold, therefore, the City Court erred in refusing to permit the question propounded the witness to be answered."

In certain instances, therefore, it is clear an admission of bias does not close the door to further cross-examination and any statement in some of our cases (Smith v. Clemmons, supra; Allen v. Fincher, 187 Ala. 599, 65 So. 946; Southern Rwy. Co. v. Harrison, supra) indicating to the contrary should be considered in the light of the facts of the particular case.

This observation is also applicable to any language which might indicate any necessity that the witness be first asked as to his feeling as a condition precedent to further cross-examination intended to show bias. Any such expressions are mere suggestions at the most, and have not been regarded as laying down any hard and fast rule. Numerous illustrative cases are to be found in the note to Vassar v. Chicago B. O. R. Co., 74 A.L.R. 1154, including Sanford v. State, 143 Ala. 78,39 So. 370; Motley v. State, 207 Ala. 640, 93 So. 508, 27 A.L.R. 276; Vann v. State, 140 Ala. 122, 37 So. 158. See, also, Central Lumber Co. v. Porter, 139 Miss. 66, 103 So. 506, 42 A.L.R. 221. And in National Surety Corp. v. Boone, 227 Ala. 599,151 So. 447, this court recognized the wide latitude allowed on cross-examination of a witness to show interest or bias, and gave no thought whatever to any matter of formality which would necessitate first a question as to the witness' state of feeling. Indeed, we are inclined to believe, that to most practicing attorneys it would appear that any such necessary precedent question, in many instances at least, would but serve to put the witness on his guard and thwart the purpose of the cross-examining counsel.

The author of the note to Vassar v. Chicago B. O. R. Co., 74 A.L.R. 1154, in reviewing the authorities, makes the following observation, in which, after a study of the cases, we find ourselves in full accord.

"It is submitted that the extent to which a witness may properly be cross examined as to collateral circumstances for the purpose of showing bias depends in some instances upon theimportance of his testimony, and especially upon whether such testimony is of a nature to be seriously affected by prejudice, bias, or hostility.

"Although the testimony of a witness may be legally important, it may be of a character not readily responsive to bias, or may be merely cumulative to that of witnesses whose statements are clear, reasonable, and undiscredited. As to such witnesses, any but the briefest inquiry into a supposed hostility may be, in fact, frivolous. Especially, in such cases, questions which relate to scandalous or other matter likely to affect a jury improperly would seem clearly to have no place in a fair investigation of issues.

"On the other hand, a witness may be testifying in reference to matters peculiarly within his knowledge, and as to which contradiction is difficult, where the turn of a phrase may control the disposition of the case. In such instances, it is submitted, a very searching inquiry as to circumstances indicating the existence of intellectual bias, or of emotional hostility, should be allowed. And in reason, such an examination might not become unimportant merely because the witness had admitted some unfriendliness, for the general nature of a quarrel or unfriendliness might be illuminating, and easily disclosed. See Central Lumber Co. v. Porter, 1925,139 Miss. 66, 103 So. 506, 42 A.L.R. 221." (Italicizing ours.)

In the instant case we have previously observed the importance of the testimony of the witness Couch, opinion testimony of an expert, incapable of contradiction save by opinion of others. Not only is there allowable great latitude on cross-examination of a witness, but this latitude is enlarged as to expert witness. Wilson v. State, 195 Ala. 675,71 So. 115.

Further illustrative of the wide latitude allowed on cross-examination are those cases holding that a witness, on such cross-examination, may be asked as to his uncommunicated motive or purpose, though such proof would have been incompetent on direct examination. Hurst v. State, 133 Ala. 96,31 So. 933, and Linnehan v. State, 120 Ala. 293, 25 So. 6.

Counsel for plaintiff, we think, are too critical and exacting in their conception of the right of cross-examination, at least it so appears in this particular case. Illustrative was the insistence that defendant had no right to question Couch concerning his claim that he knew more than two-thirds of all engineers in the country and had so testified in court. It was the defendant's right to bring this out that the jury might get a better picture of the witness, for certainly one in weighing the opinion evidence of a witness has a right to know whether or not he is of a boastful and egotistical nature, for whatever that may be worth. A close study of the record, however, disclosed to the court that defendant had the benefit of an answer, though counsel for plaintiff made no such insistence in brief. And now it is urged that defendant has no right to show the witness' discharge from two railroads, though admittedly, however "crudely", as plaintiff insists, that he has lent himself as an expert witness against railroads.

Of course a witness is due to be protected by the court against, and certainly no counsel should attempt anything like, an oppressive or unjust cross-examination as stated by the Court of Appeals in Havens v. State, 24 Ala. App. 288,134 So. 814, cited by plaintiff. But this is not to say the witness must be shielded against any embarrassment that might result from a proper cross-examination.

Further inquiry into the matter would be of no value. If the witness was wrongfully discharged, as may be argued, then the greater the reason for an intensified ill feeling. So in any event the only matter of interest to the jury was the fact concerning his discharge and not the particular merits of the controversy.

But as we have previously observed, the question of bias or prejudice is only an additional reason for permitting these questions, as we have concluded they were proper on cross-examination to rebut the implication of the witness' continued good standing in railroad circles. We have thought it proper, however, to discuss the matter from the standpoint of the argument as to bias in view of the language of some of our cases and the earnest argument of counsel for plaintiff.

On this rehearing plaintiff lays much stress upon Pollard v. Crowder, 194 So. 161.¹ Counsel arguing here appears also to have been counsel in the Crowder case, yet on original consideration of this cause here counsel for plaintiff made no mention whatever of the Crowder case in answering defendant's argument upon these assignments of error and gave no indication it bore any relation to the questions.

It now appears one of the questions presented in the Crowder case was similar to one here in question and was disallowed. And counsel for plaintiff takes us to task for our failure to make note thereof.

The omission on part of plaintiff's counsel, also counsel in the Crowder case, to call the Crowder case to our attention as having any application to these assignments of error of course can serve no excuse to those of us concurring here who participated in that decision, and we plead no such defense. Perhaps were counsel familiar with all extenuating circumstances their criticism would have been less severe. The opinion in the Crowder case makes no specific reference to any such question and it is only disclosed by an examination of the original record. There were several rulings on evidence to which the general reference "plainly without merit" would have appropriate application. This particular question, however, must have escaped the notice of the author of the opinion and certainly was overlooked by the concurring members of the court. Though we think it deserved consideration and treatment, this is not to say it presented in that case reversible error. There was no reference there as to the witness being a member of the Brotherhood of Locomotive Engineers, which, as we have herein indicated, is a material differentiation. Nor was the testimony of Couch in that case nearly so important for plaintiff as in this. The inquiry related to only one road and the ruling thereon with practically no discussion and no accentuation of the matter before the jury.

Though the matters called for more serious treatment, we are unwilling to say that it was such as to present error to reverse.

Here these questions were proper as tending to contradict the implication of continued good standing as we have before stated, and other points of differentiation apart from this, which we need not repeat. We can readily understand the viewpoint of counsel for plaintiff and the vigorous dissent from the reasoning of this opinion. We have restudied the record and these questions in the light of able argument of counsel, but we find our minds still persuaded that the trial court in sustaining the objections of counsel for plaintiff has too narrowly restricted the cross-examination of this witness and this to the prejudice of the substantial rights of these defendants.

Being still so persuaded the application for rehearing will be denied.

Application overruled.

BOULDIN, FOSTER, and LIVINGSTON, JJ., concur.

¹ 239 Ala. 112.