Burnstine v. Drew

269 F. 677, 50 App. D.C. 161, 1920 U.S. App. LEXIS 1904

• Court: Court of Appeals for the D.C. Circuit
• Decided: December 6, 1920
• Docket: No. 3354
• Status: Published

Opinion

VAN ORSDEL, Associate Justice.

Plaintiff below appeals from a judgment for defendant in a suit for damages for the alleged wrongful death of his son, who was killed by an automobile operated by defendant.

The single assignment of error relates to the admission of the fol-lowing evidence, laying the foundation for the impeachment of one of plaintiff’s witnesses:

“Q. Didn’t you say to him [Mr. Hall], in substance, these words: ‘I thought that thing had been dropped. There is not anything in it, and I called up Mr. Drew and told him so.’ A. No, sir; I do not recall that.

“Q. You do not recall telling him that in substance? A. No, sir; I do not.

“Q. You do not remember anything like that? A. I do not think I called it >‘the thing.’ ”

j. It will be observed that, when the question laying the foundation for 'the impeachment was propounded to plaintiff’s witness on cross-examination, no objection was interposed. When, ho'wever, counsel for defendant attempted to prove the statement by their impeaching .witness, Mr. Hall, objection was made on the ground that it called for ah expression of opinion by the witness to the effect that plaintiff had ■not a good case.

The objection came too late. Plaintiff’s witness had, in effect, admitted making the statement, and the exclusion of Hall’s testimony would not have operated to exclude the admission; hence, if error was committed in the admission of Hall’s confirmation, it was without prejudice.

The judgment is affirmed, with costs.

Affirmed.