
    CATHEY v. MISSOURI, K. & T. RY. CO. OF TEXAS.
    (Supreme Court of Texas.
    Jan. 18, 1911.)
    1. Evidence (§ 181) — Best and Secondary Evidence — Train Records.
    In an action against a railroad for loss by fire, it was error to allow a station agent to read statements from his record, purporting to show the time that trains passed on the day of the fire, copied from cards furnished by employés operating the trains, where the original cards were in his possession but not produced, there being no evidence that the time entered on the cards was correct, nor evidence that the testimony of the persons who made the entries on the cards could not have been obtained.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 600; Dec. Dig. § 181.*]
    
      2. Trial (§ 75) — Reception of Evidence-Objection — Waiver.
    A party who cross-examines a witness of the adverse party giving incompetent testimony, does not thereby- waive the objection to such testimony merely because the witness on the cross-examination states the same facts.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 171-182; Dec. Dig. § 75.]
    Error to Court of Civil Appeals of Fifth Supreme Judicial District.
    Action by Mrs. M. W. Cathey against the Missouri, Kansas & Texas Railway Company of Texas. There was a judgment of the Court of Civil Appeals (124 S. W. 217), affirming a judgment for defendant, and plaintiff brings error.
    Reversed and remanded.
    Carden, Starling, Carden & Hemphill, for plaintiff in error. Thomas & Rhea, for defendant in error.
    
      
      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   RAMSEY, J.

This suit was instituted in the district court of Dallas county by Mrs. Cathey against the Missouri, Kansas & Texas Railway Company of Texas for the sum of $3,605 for the destruction of certain property belonging to her by fire, due to and occasioned by the negligence of certain employés of said company. On trial a verdict and judgment was rendered for the company. On appeal to the Court of Civil Appeals for the Fifth Supreme Judicial District the judgment of the court below was rever'sed. On rehearing, this reversal was set aside, and a judgment rendered affirming the judgment of the trial court.

1. In the opinion of the Court of Civil Appeals it was correctly held that there was drror in permitting the witness Tate-man to use the register purporting to show the time that passenger trains passed the yards of the company at the place where the fire occurred on the date of such fire, and to read and state to the jury the time when the company trains passed said yards, it appearing that while the witness had made such entries in said register on the date of the arrival and departure of such trains that such entries were made from slips or cards prepared and furnished him by employés operating same, which cards were then in his possession and not produced. In this connection it should also be stated that these agents were not shown to have left the employment of the company, nor was there any showing made that their testimony could not have been produced. It was not contended that Tateman had any knowledge of the times of the arrival and departure of trains except such as came to him from the original data, not produced, from which he states, and we assume states truly, he made up the register from which he testified. The time of the arrival of trains in Greenville where the fire occurred was a matter of first importance. The testimony of Tateman touching these matters was therefore undoubtedly material. That it was', under the circumstances, inadmissible cannot, we think, under the authorities, or on reason, be doubted. Missouri Pac. Ry. Co. v. Johnson, 7 S. W. 838; Railway v. Leggett (Tex. Civ. App.) 86 S. W. 1066; W. U. Tel. Co. v. Christenson (Tex. Civ. App.) 78 S. W. 744; Railway Co. v. McLeod (Tex. Civ. App.) 115 S. W. 85. The treatment of this question by the Court of Civil Appeals in the original opinion filed in the case is so thorough and satisfactory that we do not need to say more on this point.

2. On motion for rehearing the Court of Civil Appeals set aside its judgment on original hearing, and while adhering to its opinion that the testimony considered was inadmissible, ruled that since, on cross-examination, plaintiff in error caused the witness Tateman to repeat and re-read the testimony theretofore objected to by her, that this constituted a waiver of her objection to same and precluded her from complaining of the admission of the incompetent evidence. In support of this view the court cites the following authorities: Eastham v. Hunter, 98 Tex. 560, 86 S. W. 323; Gammell-Stateman Pub. Co. v. Monfort, 81 S. W. 1029; Sullivan v. Fant, 110 S. W. 507; Birkman v. Fahrenthold, 114 S. W. 428; Railway Co. v. Broon, 114 S. W. 655; Railway v. Pettit, 117 S. W. 894; Kingsley v. Schmicker, 60 S. W. 331; McDonald v. Mc-Crabb, 105 S. W. 238. That some of these authorities do sustain this position, notably Sullivan v. Fant and Railway v. Pettit, supra, does not admit of question. That the position is, however, unsound to our minds seems to be beyond dispute. Nor when read in the light of the facts and issues then before this court is this position sustained by the case of Eastham v. Hunter, 98 Tex. 560, 86 S. W. 323. A careful reading of the case, as contained in the official reports, and an inspection of the original record will demonstrate that the court was not then considering the admissibility of the testimony there discussed, but the language there used was with reference to its effect and probative force. In that case Hunter and others had sued Eastham and others for certain lands. An important issue in the case was: Was B. Eastham, then deceased, an innocent purchaser? To prove that B. Eastham did not have knowledge of such facts or any fact which would defeat his title, and the title of those claiming under him, as an innocent purchaser, the Easthams introduced one Pace who testified that “at the time Eastham bought the land from me he did not know and did not have any knowledge than that I had paid to Robert Hunter the full consideration named in the deed from Robert Hunter to me, but had reason to know that I had paid every cent called for in the said deed. If any part of the consideration named in the deed from Robert Hunter to me went to pay Robert Hunter’s debt, Mr. Eastham did not know it.” On cross-examination Pace testified on the same subject as follows: “Eastham did not know anything about the transaction until after it was completed and at the time of my transaction with him we discussed the matter fully. At the time I traded with Robert Hunter I knew that Eafetham knew nothing about it, but when I traded with Eastham I then explained to him the whole transaction.” On the evidence adduced on the trial, the Court of Civil Appeals held in effect that, under the undisputed facts, East-ham was not an innocent purchaser, and that there was no evidence or not sufficient evidence on this question to form an issue for submission to the jury. This was the question and the sole question which Judge Brown was discussing in that portion of the opinion which is relied on to sustain the final conclusion of the Court of Civil Appeals. When the opinion is read in the light of the facts, and with reference to the question before the court, that it does not sustain and support the conclusion which seems to have been understood by some of the courts is manifest.

It would indeed be a strange doctrine, and a rule utterly destructive of the right, and all the benefits of cross-examination, to hold a litigant to have waived his objection to improper testimony because by further inquiry he sought on cross-examination to break the force or demonstrate the untruthfulness of the evidence given in chief, in the event, as would most usually occur that the witness should on cross-examination repeat or restate some or all of his evidence given on his direct examination. In this case it was a matter of prime importance to the plaintiff in error to test the accuracy of Tateman’s evidence, to show the inaccuracy of his means of information, and if it could be done to place before the jury the fact or any evidences of his unworthiness. In view of the fact that his testimony related to the movement of many trains, identified largely by names, it was practically impossible to conduct any intelligent or effective cross-examination without, as a basis of such inquiry, causing the witness to repeat, at least substantially, the testimony theretofore given by him. Believing and holding that the Court of Civil Appeals erred in its judgment and opinion that the plaintiff in error had waived her objection to the incompetent evidence referred to above, its judgment is hereby reversed, and the cause will be remanded for further proceedings in accordance with law.

Reversed and remanded.  