
    No. 127
    FRENCH BROS.-BAUER CO. v MOTOR CAR CO.
    Ohio Appeals, 1st Dist., Hamilton County
    No. 2227.
    Decided July 16, 1923.
    1162. TESTIMONY—To contradict witness by proving statements out of court in contravention with testimony, he must first be cross-examined as to time, place and persons involved in supposed contradiction.
    Published only in Ohio Law Abstract
   CUSHING, J.

Epitomized Opinion

This action was begun in the Municipal Court of Cincinnati. In that court the French Bros.Bauer Co. endeavored to recover damages from the R. & G. Motor Car Co., when a motor ear owned by the last named corporation struck a milk wagon owned by the French Bros.-Bauer Co. with such force as to tear the wagon bed loose, throw the horse to the ground and to scatter the milk in all directions. The jury returned a verdict in favor of the Milk Co. The Motor Car Co. prosecuted error in the Common Pleas where the judgment was reversed and held for naught.

Joe Clark, driver of the motor car averred the accident occured while he was returning from supper, and a witness for the opposite party, one Kallmeyer testified that after the accident, while in the R. & G. garage he heard Clark tell others that he had carried passengers on that trip who had liquor on them, and he (Clark) also had some liquor. It is claimed by the Car Co. on prosecuting to the Court of Appeals, that introduction of this evidence to impeach Clark’s testimony was erroneous.

Attorneys—Mallon & Vordenberg and Harry E. Marble for French Bros.-Bauer Co.; Harmon, Colston, Goldsmith & Hoadly for R. G. Motor Car Co. all of Cincinnati.

The Court of Appeals held:

1.Before a witness can be contradicted by proving statements out of court at variance with his testimony, he must first be inquired of on cross-examination as to such statement, 20 Ohio 88. The one exception to this rule is the case of offering a deposition of the witness intended to be impeached.

Under the circumstances this testimony was prejudical to the Motor Car Co. and therefore judgement of Common Pleas was affirmed. Special mandate issued to said court, directing it to remand case to Municipal Court for new trial.  