I concur in the dissent of Mr. Justice Stone. In addition thereto I comment upon but one assignment of error.
Every witness may, under cross-examination, be asked whether he has made any former statement relative to the subject matter inconsistent with his testimony upon the trial. This is for the purpose of impeaching him by contradictory statements. When it is sought so to impeach a witness, it is the rule, in justice to the witness and to enable him to give his best recollection, to lay the proper foundation by first directing his attention to the time, place, and person, or other material facts connected with the supposed contradictory statements and giving him an opportunity to explain. The rule requiring the laying of the foundation for such impeachment is well established and followed in the trial of cases in Minnesota. The case of Johnson v. Young, 127 Minn. 462, 149 N.W. 940, is perhaps the strongest case in this court tending to a relaxation of this well established rule, but that case is distinguishable from this in that the foundation in that case was laid in examining the witness to be impeached and the purpose of the rule was met by calling the attention of the witness to be impeached to the time, place, and particular conversation; but when the other witness was called to testify that the witness to be impeached had made the particular statement which he denied having made, counsel neglected to show the place where or the hour when the conversation had occurred to which the impeaching witness testified. An objection was made to the question to the impeaching witness on the ground that no foundation was laid. This objection was sustained, and this court held it to be error. Johnson v. Young, 127 Minn. 462, 149 N.W. 940, may tend to support appellant's contention, but it is a very weak support. I do not think it at all controlling. The facts are not parallel. The particular facts in this case should *Page 454 also be kept in mind. In the cross-examination of the witness Wold, called by defendant, he was asked:
Q. "Now, as a matter of fact, you told Henry Bergman that you didn't see the accident, didn't you?
A. "No, I didn't say any such thing.
Q. "What?
A. "No, I didn't say any such thing."
When the witness Bergman was called, apparently for the purpose of impeaching the witness Wold, this occurred:
Q. "Did Arnie Wold ever at any time say that he saw this accident?
A. "He told me that he didn't see it.
Q. "He told you he didn't see it?
A. "Yes, sir."
These answers were stricken out on motion for the reason that no foundation had been laid for impeachment. The point was that the question to Wold had never specified the time or place wherein it was going to be claimed that Wold had ever made such statement to Bergman. Under the well established rule of practice in the trial of cases the trial court was correct. Plaintiff's counsel might then have procured permission from the court to recall Wold to lay the necessary foundation. He did not ask for that. Plaintiff's counsel then made an offer to prove, by witness, that Arnie Wold told the witness that he did not see the accident. To this an objection was made that no impeaching question had been asked. The objection was sustained. Plaintiff's counsel then further offered to include that such statement was made a very short time after the occurrence of the accident. The same objection was made and sustained. The simple point was that Wold had never had his attention called to the time, manner, and place, and was not afforded the opportunity contemplated by the language and the spirit of the rule thoroughly to understand the claim and to have an opportunity of explaining any statement made. In my judgment the trial court ruled correctly. *Page 455