Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan and
Koontz, JJ., and Poff, Senior Justice
FOOD LION, INC.
OPINION BY
v. Record No. 980828 SENIOR JUSTICE RICHARD H. POFF
February 26, 1999
LINDA COX
FROM THE CIRCUIT COURT OF SCOTT COUNTY
Ford C. Quillen, Judge
The dispositive issue raised in this appeal is whether a
party in a civil action has a right to cross-examine witnesses
called by another party as adverse witnesses.
The plaintiff, Linda Cox (Ms. Cox), filed a motion for
judgment against the defendant, Food Lion, Inc. (Food Lion),
alleging that she had been injured by the defendant's failure to
maintain its store in a reasonably safe condition. At trial,
she testified that she had slipped and fallen on the floor of
the store. Ms. Cox called four Food Lion workers as adverse
witnesses. The first, Kenneth Marshall, testified that he saw
the plaintiff fall in a spot on the floor where he had been
trying to remove "a little black substance" with a mop, water,
and detergent.
At the conclusion of Marshall's direct testimony, Food
Lion's counsel prepared to cross-examine the witness. The trial
court ruled sua sponte that the defendant was not entitled to
examine its own employees until Food Lion called them as
witnesses for the defense. Food Lion objected to that ruling
and addressed the same objection as applied to the other three
store employees Ms. Cox had called as adverse witnesses. The
jury rendered a verdict for the plaintiff, and the trial court
entered final judgment fixing her damages at $25,000.
Ms. Cox invokes the general rule that the order of
examination of witnesses lies within the discretion of the trial
court. But that rule does not apply to the order of cross-
examination of adverse witnesses.
This Court has never qualified the rule defined and applied
in Basham v. Terry, Administratrix, 199 Va. 817, 824, 102 S.E.2d
285, 290 (1958), that cross-examination of a witness "is not a
privilege but an absolute right." The justification for an
absolute right is that a rule in the converse would be
prejudicial to the party denied the right of cross-examination.
We find no merit in Ms. Cox's contention that any error in
the trial court's ruling was "mere harmless error". The right
violated by that ruling is absolute; the adjective "absolute"
definitively excludes exceptions. Accordingly, we will reverse
the judgment entered below and remand the case for a new trial
on all the issues. *
Reversed and remanded.
*
Because other errors assigned by Food Lion may not become
involved in the conduct of a new trial, we need not reach those
issues here.
2