I dissent. As I read the majority holding, the case is remanded because of two errors committed during the course of the trial. These two errors relate to testimony that tended to impeach a witness called by the defendant. The witness in question was Gretta Churchill, who was the granddaughter of the plaintiff in the action.
This witness was a girl sixteen years of age, and shortly after the accident the attorney for the defendant, with an ex court reporter, went to the hospital where the girl's grandmother lay critically ill, and there secured some sort of a statement undoubtedly as favorable to the defendant's cause as the learning and skill of an experienced lawyer could secure from an inexperienced girl under such circumstances.
The defendant did have some difficulty in securing the attendance of Gretta Churchill as a witness in court, but the trial court gave sufficient continuance until her presence could be obtained by process; and when she took the witness stand and did not testify as counsel for the defendant desired her to do, he then sought ways and means of putting the statement he had elicited from her at the hospital into the record and before the jury. The court permitted him to cross-examine and lead the witness but would not permit him to impeach her testimony, and in doing this I consider that no error was committed. The defendant vouched for her truth and veracity when she was placed under oath and *Page 498 took the witness stand. Thereafter to permit him to impeach her and show that she was unworthy of belief under oath by having the ex court reporter read the questions and answers propounded to her in the hospital goes further than the law allows. In England and a number of the states statutes have been passed permitting a party to impeach his own witness under circumstances such as the defendant's attorney claimed to exist in this case. However, until our Legislature has spoken on the subject, I believe that we should stay with the law as it has been laid down in the decided cases.
Counsel for the defendant offered the conduct and words of Gretta Churchill immediately following the accident in evidence, not as spontaneous exclamations and a part of his defense, but solely as a means of impeaching his own witness; and upon objection being duly made thereto, the court sustained the objection and prohibited the testimony. Even assuming that the guarantees of trustworthiness were met and that the words spoken by Miss Churchill immediately after the accident were admissible as a part of the defendant's case, there could be no error in refusing the admission of such testimony when the attorney did not offer it as a part of his main case but solely offered it for the purpose of impeaching the witness he had called.
I agree with the majority opinion in holding that there was a jury question involved and that the evidence did not disclose such negligence on the part of the plaintiff as would prevent her recovery. However, I do not believe that there was any error committed by the trial judge as set forth in the prevailing opinion, and I think the judgment should be affirmed.
PRATT, J., on leave of absence. *Page 499