
    The French Brothers-Bauer Co. v. R. & G. Motor Car Co.
    
      Evidence — Impeachment of witness — Cross-examination necessary before proving contradictory statements out of court
    
    The introduction of evidence to impeach a witness, by proving statements out of court. at variance with, his testimony, is prejudicial error where the witness to be impeached is not first questioned on cross-examination as to such statements and the time and place and persons involved in the supposed contradiction, although the deposition of the witness to be impeached had been taken, where it is not offered on the trial by the one introducing the impeaching evidence.
    Witnesses, 40 Cyc. pp. 2729, 2730.
    (Decided July 16, 1923.)
    Error: Court of Appeals for Hamilton county.
    
      Messrs. Mallon & Vordenberg and Mr. Harry E. Marble, for plaintiff in error.
    
      Messrs. Harmon, Colston, Goldsmith & Hoadly, for defendant in error.
   Cushing, J.

This action arose out of a collision that happened about 4 a. m., June 20, 1920, between a milk wagon owned by the French Bros.-Bauer Company, and an automobile owned by the R. & G. Motor Car Company.

The milk wagon was traveling north on Reading road, near Hale avenue. It was on the east side of the street, between the street car track and the curb. The automobile, traveling in the same direction, ran into the rear of the milk wagon with such force that the horse was thrown, to the ground, the wagon bed tom loose and thrown partially over the horse, the milk scattered in many directions, and the wagon damaged, creating such a situation that it was necessary to call out the fire department to clear the street.

The French Bros.-Bauer Company brought an action in the Municipal Court to recover damages. The jury returned a verdict for the plaintiff.

The defendant prosecuted error to the Court of Common Pleas, where the judgment of the Municipal Court was reversed and held for naught.

The only error assigned was the admission of evidence offered by the witness Kallmeyer.

The plaintiff company, in the Municipal Court, offered evidence tending to establish negligence on the part of the motor car company and the amount of its damage. It then rested its case. The defendant then called Joe Clark, the driver of the taxicab. He testified that the accident happened while he was returning from getting his supper at Second and Broadway. This evidence tended to establish that the automobile was not being used in the service of the Motor Car Company.

The French Bros.-Bauer Company then called the witness, Kallmeyer, who testified that after the accident he took the horse to the garage of the R. & G-. Motor Car Company, and while there heard Clark talking to three other men, and claimed that Clark said that he had carried passengers on that trip; that they had liqnor with them, and he also had some liquor. It is claimed that the introduction of this evidence to impeach the witness dark was erroneous.

Before a witness can he contradicted by proving •statements out of court at variance with his testimony he must be first inquired of on cross-examination as to such statements and the time, place and persons involved in the supposed contradiction. This rule was first announced in Ohio in King v. Wicks, 20 Ohio, 87, and has been followed in many cases since. There seems to be but one exception to the rule, and that is in the ease of offering a deposition of the witness intended to be impeached. The weight of authority in the latter case is that such impeachment is not proper without laying the foundation. In this case, however, the plaintiff took Clark’s deposition, but did not offer it on the trial. The defendant in the trial court offered it, and Kallmeyer’s testimony was introduced to impeach Clark’s.

Under the circumstances, we are of opinion that the introduction of this testimony was prejudicial to the defendant in error, and that the judgment of the 'Court of Common Pleas should be affirmed.

In the entry, the Court of Common Pleas set aside the judgment and held it for naught. It is ordered that the judgment of the Court of Common Pleas, reversing the judgment of the Municipal Court be affirmed, and that a special mandate be issued to the Court of Common Pleas directing it to remand the case to the Municipal Court for a new trial.

Judgment affirmed and cause remanded to Municipal Court.

Buchwalter and Hamilton, JJ., concur.  