
    The Taplin-Rice-Clerkin Co. v. McMahen et al., d. b. a. McMahen & Rivers.
    (Decided May 3, 1929.)
    
      Messrs. DeWoody S Keeney and Messrs. Slabaugh, Seiberling, Huber & Guinther, for plaintiff in error.
    
      Messrs. Schwab & Heiser, for defendants in error.
   Funk, P. J.

Defendants in error commenced an action against plaintiff in error for damages for breach of warranty of a used steam boiler and radiators, with pipes and fittings, sold to them by the plaintiff in error. The parties being in this court in the reverse order from that in which they were in the trial court, they will be referred to as plaintiffs and defendant, as they stood in that court.

The petition alleged, in substance, the purchase of said boiler and radiators; that defendant guaranteed that said boiler would heat plaintiffs’ garage in zero weather to a certain temperature, if plaintiffs would install it according to plans and specifications to be furnished by the defendant; that said plans and specifications were furnished and that plaintiffs installed said boiler according to the same, but that said boiler was wholly inefficient and totally failed to heat plaintiffs’ garage to any degree, and that they were required to install an entirely new system of heating in their garage; that they offered to return said boiler and radiators to defendant, but that defendant refused to accept the same. Plaintiffs therefore asked damages for necessary labor engaged and material used incidental to the installation of said boiler in the attempt to cause it to operate efficiently, and also for the reasonable value of said boiler, and for loss of business.

The answer of defendant alleged, in substance, that it sold said boiler, radiators, pipes, and fittings as they were on its floor, and denied that it made any guaranty whatever, or that it agreed to or did furnish any plans and specifications for their installation.

The claim for loss of business was eliminated by the court.

The case was tried to a jury, which returned a verdict for plaintiff. Motion for new triál was overruled, on condition that plaintiffs consent to a remittitur of a certain amount, which they did, and judgment was entered for the reduced amount. The case is here on petition in error, seeking a reversal of that judgment.

Three principal errors are urged by counsel for defendant.

The first error claimed is that the procedure was improper and that the court erred in the admission of certain evidence.

Upon the trial, plaintiffs called, for cross-examination under Section 11497, G-eneral Code, a Mr. Clerldn, who was the president and manager of defendant company and who negotiated said sale on behalf of defendant, as their first witness.

While being so examined, he was asked, among other questions, whether he had told plaintiffs, prior to and at the time they purchased said boiler and radiators, that if they purchased them, and installed them according to plans which he would furnish, he would guarantee that the boiler would heat their garage to a temperature of 50 degrees Fahrenheit in winter weather. He answered, “I did not,” and when asked whether he did furnish plaintiffs with such a set of plans for installing the boiler he said, “No, sir.” And upon being asked whether he had not told a Mr. W. S. Eoath, one of defendant’s employees, that he had promised plaintiffs 50 degrees of heat, he said, “No,” and when further asked, “Did you not write said Eoath a letter in which you told him that you had promised us 50 degrees heat?” the witness answered, at one place, “I wrote a letter, but it does not mean that we guaranteed fifty degrees heat,” and, at another place, answered the same question thus: “No, I did not. The letter will speak for itself and the date for it.”

Other questions were asked the witness at this time concerning whether he had or had not written a letter to said Eoath asking him to come to the company office and go over plaintiffs’ job, and make a layout and specifications for the installation of the boiler sold to plaintiffs, in accordance with his agreement with plaintiffs at the time he sold the boiler to them. Objection was sustained to these questions and they were not answered. They are therefore not before us as a part of the testimony given by said witness when called by plaintiffs for cross-examination.

After the witness Clerkin had testified as above set forth, both plaintiffs were called as witnesses in their own behalf, and testified that said Clerkin had said to them that he would guarantee that said boiler would heat their garage to a temperature of 50 degrees Fahrenheit in zero weather, if they would buy it and install it according to plans and specifications which he would furnish; that they did buy it, that defendant did furnish them with plans and specifications for installing said boiler, and they installed it according to said plans and specifications, but that it did not heat their garage to any degree.

Plaintiff also called said Roath as a witness, who testified that said Clerkin told him that he had promised plaintiffs that said boiler would heat their garage to a temperature of 50 degrees Fahrenheit, and requested him to prepare plans and make a layout for installing said boiler; that he did prepare such layout and specifications at defendant’s request, and that said Clerkin did write him certain letters to come to defendant’s offices to go over the matter and prepare the same.

A layout or plan for installing said boiler, which said witness Roath testified was prepared by him at the request of said Clerkin, and also three letters written by said Clerkin to said witness Roath, were admitted in evidence, over the objection of defendant. One letter is dated August 18, 1926, and contains the following paragraph: “I succeeded in selling the boiler today to parties here in this city that have a low garage 50x150; 10' or 12' ceiling. The portion excavated is not deep enough. Wish you would run up Saturday, p. m., until we make recommendations in the matter of further excavating. Even at that, the radiators will have to be up on a bracket on the side wall, near the ceiling, not a good arrangement, but the best that could be done.” -

Another letter is dated August 23, 1926, and contains this paragraph: “The garage people state you called in there and told them this boiler would not do the work. I cannot believe you would make any such statement as this. As I told you before going, we only promised them fifty degrees of heat.”

The third letter, dated August 31, 1926, reads as follows: “If convenient, we would like to have you come to the office on Saturday morning to go over the McMahen-Rivers garage job and make your layout of same and a specification of the material you will need on that job.”

Counsel for defendant in their brief call attention to certain pages of the record, where they claim the evidence of the two plaintiffs and Mr. Roath was improperly admitted, but say nothing in the brief concerning the admission of these letters or the plans. However, we assume that their complaint has reference to the letters and plans as well as the oral testimony of the several witnesses.

It is contended by counsel for defendant that when plaintiffs called said manager as a witness they were thereby precluded from proving statements made by him contradictory to those made as such witness, and that they were bound by them and had no right to impeach his testimony. Counsel’s position is more elaborately stated by the following paragraph in their brief: “Of course, no one can assert that the evidence which was in plaintiff’s possession should not be offered by it, but when plaintiff attempts to first call the adversary party, it put itself in a position where it could no longer use the other evidence which was in its possession. A proper procedure on the part of plaintiff would permit it to go only so far as to offer evidence of its other witnesses without calling Clerkin, and when it called Clerkin, it put itself in a position where it was unable to use the evidence of its other witnesses, because such other evidence was not counter testimony, but was such testimony as was intended to discredit Clerkin by proof of his own claimed contradictory statements.”

The rule is fundamental, without a statute, that a party always has the right to show what the material facts of a case are, although by so doing he may prove a fact to be otherwise than as sworn to by some witness of his own — whether such witness be the adverse party or a witness called by him in his own behalf. It is also just as fundamental that prior material admissions and declarations of a party against his interests are competent independent evidence, and that material facts may thus be shown by the admissions and declarations of the opposite party as well as by other evidence.

Hence, in a civil action, the admission by a party of any fact material to the issue is always competent evidence against him, wherever, whenever, or to whomsoever made, excepting, of course, confidential communications, the disclosure of which is prohibited by law, such as from client to counsel, and from patient to physician; but where the party is a corporation, admissions and declarations by its officers and agents must, of course, be limited to those made while such officers or agents were acting within the scope of their authority, in the transaction of the business of the company. It is not claimed that the statements asked about in the instant case were made while the witness was not acting within the scope of his authority and in the transaction of the business of the defendant company.

It also clearly, appears from the record that the evidence complained of was offered and admitted for the purpose of showing what the contract really was, by showing what was actually said and done between the parties, and not merely for the purpose of contradicting or impeaching the witness Clerkin; and counsel for defendant admit in their brief that said evidence was competent but for the fact that the witness Clerkin had been previously called by plaintiff for cross-examination and that the evidence ad: mitted contradicted the testimony given by him.

The rule generally followed is that, where a party calls the adverse party as a witness as upon cross-examination, he is concluded from introducing evidence for the sole purpose of impeaching such witness by showing either that his general character for truth is bad or that he had made previous contradictory statements; but where that is not the only purpose, and the evidence is competent against him concerning the facts contained in such admissions, and prove a state of facts contrary to that to which such witness testified, the evidence is proper, even though it incidentally contradicts the testimony of such adversary witness.

We find this rule is supported by the great weight of authority, especially in states having a statute providing for the cross-examination of the adverse party. The following are some of the decisions that have adopted this rule: Gould, Exrx., v. John Hancock Mutl. Life Ins. Co., 114 App. Div., 312, 99 N. Y. S., 833; Pickard v. Collins, 23 Barb. (N. Y.), 444; Chester v. Wilhelm, 111 N. C., 314, 16 S. E., 229; Jennett v. Patten, 78 Vt., 69, 62 A., 33; Warren, Burch & Co. v. Gabriel & Co., 51 Ala., 235; Buchanan v. Buchanan, 73 N. J. Eq., 544, 68 A., 780; Thorp v. Leibrecht, 56 N. J. Eq., 499, 39 A., 361; DeMeli v. DeMeli, 120 N. Y., 485, 24 N. E., 996, 17 Am. St. Rep., 652; O’Dell v. Day, 214 Mich., 566, 183 N. W., 17; Highley v. Am. Ex. Natl. Bank, 185 Ill., 565, 57 N. E., 436; Gardner v. Connelly, 75 Iowa, 205, 39 N. W., 650; Wallach v. Wylie, 28 Kan., 138; Mississippi Glass Co. v. Franzen (C. C. A.), 143 F., 501, 6 Ann. Cas., 707, and note; Municipal Court of City of Providence v. Kirby, 28 R. I., 287, 67 A., 8, 13 Ann. Cas., 736, and note.

However, a number of the decisions go further and hold that the rule that one cannot impeach his own witness by contradictory statements made out of court is limited to the case of a witness who is not the adverse party called for the purpose of cross-examination, and that a party may show contradictory statements made by such adverse party out of court.

In the case of Koester v. Rochester Candy Works, 194 N. Y., 92, 87 N. E., 77, 19 L. R. A. (N. S.), 783, 16 Ann. Cas., 589, the judge who wrote the opinion, in commenting on such holding, said: “The effect of such contradictory statements in the case of other witnesses is merely to impeach the witness because they are merely hearsay and are not proof of the fact stated. The case of an adverse party is the exact reverse. ’ ’

Ohio is one of the many states that now have a statute providing that a party to a suit may call the adverse party for cross-examination. Section 11497, General Code, under which the witness Clerkin was called, reads as follows: “At the instance of the adverse party, a party may be examined as if under cross-examination, either orally, or by deposition, like any other witness. If the party be a corporation, any or all the officers thereof may be so examined at the instance of the adverse party. The party calling for such examination shall not thereby be concluded but may rebut it by counter testimony. ’ ’

Jones’ Commentaries on Evidence (2d Ed.), vol. 6, Section 2426, page 4800, says, concerning such statutes: “It is held to be the meaning of these statutes that the party thus called is not called as the witness of the other party, but in order to elicit from him material facts by cross-examination as if he had already been examined on his own behalf. And of course, if the statements or conduct sought to be proved as inconsistent with the present testimony of a party-witness, amount to admissions against interest by such party, it does not constitute impeachment to offer such statements or conduct in evidence because admissions against interest of a party are substantive evidence in themselves.”

Counsel for defendant call special attention to the case of Murray v. Third National Bank of St. Louis (C. C. A.), 234 F., 481, and seem to rely largely upon it to support their contention; but we find it is not in conflict with these views, as it clearly appears in the opinion that the evidence in that case was limited by the charge of the court “to its effect upon the credibility of the witness, with express instructions that it could not be regarded 'as establishing the facts’,” and which is the only purpose for which any of the decisions say such evidence is improper, unless authorized by statute. We do not have that kind of a case before us.

We therefore hold that substantive evidence material to the issue, which is conceded to be competent if the adverse party has not been called to testify as upon cross-examination under Section 11497, General Code, is not rendered incompetent by reason of the fact that the adverse party has been so called and has so testified, merely because the necessary effect of such evidence is to contradict the testimony given by such adverse party while so testifying.

It thus follows that there was no error in the admission of the evidence concerning which complaint is made.

The second error claimed by defendant is that the court erred in refusing to give the special requests to charge asked by it to be given before argument.

We have examined all these requests, and, under the well-settled rules governing the giving or refusing to give requests to charge before argument, we find no error in the refusal to give any of them.

The third error contended for is that the court erred in certain particulars in the general charge.

We have examined these claimed errors and have read the whole charge and find no prejudicial error in it, but, on the contrary, find it exceedingly fair, and especially so to defendant in that part of the charge where the court instructed the jury as to what they would have to find before they could return a verdict for plaintiff .

Finding no prejudicial error in the record, the judgment is affirmed.

Judgment affirmed.

Pardee and Washburn, JJ., concur.  