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I have just shown you you state as follows: 'At the time Jim got hurt we were running from 42 to 5 miles an hour-certainly not to exceed 5 miles.' Is that statement correct? (Objected to by plaintiff; objection sustained.) The grounds upon which the court sustained the objections to interrogatories to this and other witnesses, based upon a written statement signed by the witness, and to the introduction of the written statements themselves, were that it appeared that the statements were not volunteered by the witnesses, but that the company had sent its claim agent, after the happening of the accident, to examine the employés of the company who were present at the time of the accident, in regard to the transaction; that the statements made by the witnesses were not taken down in full, but only a synopsis thereof made by the agent, the correctness of which is questioned by the witnesses in some particulars, although such written statement was signed by the witness; that, upon the trial of this case, these statements, thus obtained, were sought to be used not alone as a means of impeaching the witness, but as evidence of the matters therein recited; that it is apparent to the court that, whether so intended or not, these statements become a ready means of confusing and intimidating witnesses before the jury, and that, if it be permitted to parties to thus procure, written statements in advance from witnesses, and then use the same in examining such witnesses, it will enable parties to shape and control the evidence in a cause by committing the witnesses to particular statements, couched in the language not of the witness, but of the person carrying on such ex parte examination; that these growing abuses can only be prevented by entirely excluding such statements thus procured from being introduced in evidence for any purpose; that, if the party desired to impeach a witness by showing contradictory statements made by him, the person to whom or in whose presence such alleged contradictory statements were made should be called as a witness, so that opportunity might be afforded of placing before the jury the statements actually made by the witness sought to be impeached, and not a mere synopsis thereof made by another person, and the accuracy of which, in some particulars, was challenged. Exception by defendant."

The following further proceedings took place on the cross-examination of the same witness: "Question. On the occasion I have referred to, did you make this statement: 'Six men on a hand-car have plenty of room. We often had 8 and 10 men on a hand-car of the same size?' (Objected to by plaintiff; objection sustained; exception by defendant.) Q. Did you, on the occasion I have referred to, at Harper's Ferry, say as follows: 'I am a larger man than Jim ever was, and my legs are a great deal longer. I have never had any trouble in keeping my feet up when I sat on the front of the car?' (Objected to by plaintiff; objection sustained; exception by defendant.) Q. On the occasion referred to, did you state as follows: 'If

a man is holding a shovel on the rail and he is sitting on the front.. of a hand-car there is no way for him to get hurt unless he forgets himself and lets his feet drop down?" (Objected to by plaintiff; objection sustained, exception by defendant.) Q. On the occasion referred to, did you state: "The hand-car was in good condition, nothing broken about it in any way. It was an ordinary car, full size?' (Objected to by plaintiff; objection sustained; exccption by defendant.) Q. Did you, on the occasion referred to, state as follows: 'I am foreman at present on section No. 20. The top of the ribbons. on the ties of the cattle-guard was about level with the ball of the rail?” A. Well, sir, I don't remember whether I did or not say that. Q. If you did say that, was it the truth or not? (Objected to by plaintiff; objection sustained; exception by defendant.)” ̈ ́

Subsequently, while the defendant was putting in its evidence, the bill of exceptions says: "Thereupon the defendant offered in evidence, for the purpose of impeachment, the statement under date. of March 23, 1886, shown the witness Jerry Artery, and hereto attached, marked 'Exhibit A,' which, on objection by plaintiff, was ruled out by the court; to which ruling the defendant at the time excepted." The court, in sustaining the objection, stated that it deemed the proper method to be to produce the person to whom the alleged statement was made, and to prove by him what the witness may have said on the occasion. Exhibit A, thus referred to, is a paper signed by the witness, and contains the statements set forth in the six questions thus excluded, as above.

That the evidence covered by the six questions was material to the issue, is apparent. They related to the speed of the car, to the question of its size and whether it was crowded or not, to the question whether the plaintiff could have kept up his feet without a foot-rest, and to the question of the condition of the cattle-guard. It is an elementary principle of the law of evidence that if a witness is to be impeached, in consequence of his having made, on some other occasion, different statements, oral or written, from those which he makes on the witness-stand, as to material points in the case, his attention must first be called, on cross-examination, to the particular time and occasion when, the place where, and the person to whom he made the varying statements. In no other way can a foundation be laid for putting in the impeaching testimony.

In the present case, it is apparent that the views of the court, as set forth in the bill of exceptions immediately after the exclusion of the first question which is above stated to have been excluded on the cross-examination of the witness Jerry Artery, must have been founded, not only upon what had at that time transpired, but also upon the subsequent proceedings at the trial, and were the views of the court upon additional and kindred questions which arose in the case, because, at the time such first question was asked upon crossexamination and excluded, it had not yet appeared in evidence under

what circumstances the written statement was made by the witness. Moreover, it was stated by the court that the written statements of the witnesses "were sought to be used not alone as a means of impeaching the witness, but as evidence of the matters therein recited;" whereas, when the statement signed by the witness Jerry Artery was offered in evidence and excluded, it was distinctly offered "for the purpose of impeachment," and it is not otherwise stated in the bill of exceptions that it was offered for any other purpose; and, in excluding it, the court excluded it as so offered.

We think the circuit court erred in laying it down as a rule that a written statement signed by a witness and admitted by him to have been so signed, cannot be used in cross-examining him as to material points testified to by him; and in announcing it as a further rule that the only way to impeach a witness by showing contradictory statements made by him is to call as a witness the person to whom or in whose presence the alleged contradictory statements were made. The foundation must be first laid for impeaching a witness, by calling his attention to the time, place, and circumstances of the contradictory statements, whether they were in writing or made orally; and the court, in the present case, excluded that from being done. The written statement having been presented to the witness, and he having admitted that what purported to be his signature to it was his signature, it was perfectly open to him to read it, and he could have been inquired of as to the circumstances under which it was taken down and signed, so as to advise the jury as to its authenticity, and the credit to be given to it. The bill of exceptions does not show that the plaintiff's counsel asked the witness to read the statement, or asked the court to have it read to him, or that the witness did not read it, or did not have it read to him. The exclusion of the first question put to him and excluded, namely, "Is that statement correct?" did not refer to the entire written statement, but to the statement in it as to the speed at which the car was running. That inquiry was directly pertinent to the issue that was being tried.

The rule of evidence invoked by the plaintiff, and laid down in The Queen's Case, 2 Brod. & B. 284, 288, is that if, on cross-examination, a witness admits a letter to be in his handwriting, he cannot be questioned by counsel as to whether statements, such as the counsel may suggest, are contained in it, but the whole letter must be read as the evidence of the existence of the statements. This principle is not applicable to the present case, because the plaintiff did not take the objection that the whole statement was not, but should have been, read as evidence; and the court, with the assent of the plaintiff, excluded it from being read in evidence.

The case of Railroad v. O'Brien, 119 U. S. 99, 7 Sup. Ct. 118, 30 L. Ed. 299, is not in point. In that case, which was a suit against a railroad company to recover for personal injuries received by an accident to a train, a written statement as to the nature and extent of

the injuries, made by the plaintiff's physician while treating him for them, was held not to be admissible as affirmative evidence for the plaintiff, even though it was attached to a deposition of the physician, in which he swore that it was written by him and that it correctly stated the condition of his patient at the time referred to. The question was not one which arose on the cross-examination of a witness or in regard to his impeachment.

Nor was the present case one involving the well-established proposition, that incompetent questions are not allowable on cross-examination in order to predicate upon them an impeachment or contradiction of the witness. The judgment is reversed, and the case is remanded to the circuit court, with a direction to grant a new trial.

April.

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himed

WRITINGS

I. Demonstrative Evidence

THOMPSON v. COLUMBIAN NAT. LIFE INS. CO.

(Supreme Judicial Court of Maine, 1915. 114 Me. 1, 95 Atl. 229.)

SAVAGE, C. J.1 Action upon an accident insurance policy. The verdict was for the plaintiff, and the case comes before this court on defendant's exceptions and motion for a new trial. The plaintiff claims that her husband, the insured, received bodily injuries through accidental means in consequence of which he died. The defendant claims that the insured did not die in consequence of the accident “independently and exclusively of all other causes," as the policy phrases it. This presents the issue of fact.

Motion. The assured was mate on a steamer plying between Portsmouth and the Isle of Shoals. The evidence would justify a finding that on one trip in August, 1913, on a rainy day, when the boat was making a landing the insured slipped on the wet deck, or lost his balance, while throwing a heaving line, and fell heavily to the deck. His weight was about 200 pounds. Apparently before this time he had been a well man. After this, and until his death some days later, he complained of pain in his left side.

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The plaintiff contends that the heart was ruptured before death in consequence of the fall, and that the rupture was the immediate cause of death. And there is medical testimony that such a consequence might follow a fall. But the defendant contends that the heart muscles were cut, and that the cut was made after death.

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Exceptions. The defendant offered in evidence the heart of Mr. Thompson itself. It was excluded. The defendant contends that as the prime question at the trial was whether there was a rupture of the heart before death, or a cut upon the heart after death, the heart itself would be the best evidence of the truth. It would be good evidence, it must be conceded, if the heart remained in the same_condition as it was at death, and would be properly admissible, if the jurors, who were nonexperts, were competent to judge of a question, the answer to which must depend to a considerable degree upon expert knowledge.

Whether demonstrative evidence of this character should be admitted depends, within well-defined limits, upon the discretion of the

1 A portion of the opinion is omitted.