(dissenting).
I am unable to agree with the treatment •given the assignment of error relating to .the exclusion of the plaintiff’s evidence concerning speed wherein the majority opinion says, “but we see no prejudicial error in its exclusion, particularly since ample evidence, if believed by the jury, easily and reasonably could have pointed up decedent’s own negligence, * * * ” It is my view that the statement just quoted is irrelevant to the issue involved. The mere fact that there was evidence from which the jury could find the deceased negligent, should not preclude the plaintiff from presenting all available competent evidence bearing upon the issues, all of which, including the question of the deceased’s negligence, should have been tried by the jury, upon all available competent evidence.
The defendant elected to testify concerning speed. The purpose was to impress the jury that he was not speeding and was driving in a careful manner. This opened the door for plaintiff to present on a rebuttal any available evidence which might tend to refute it. Therefore, I do not see how the conclusion can be escaped that it was error to deny plaintiff the right to offer evidence concerning speed. Furthermore, even if the matter had only been discretionary with the trial court, it seems to me that the exclusion of the evidence would have been an abuse of discretion. The court’s duty is to exercise its discretion in favor *22of admitting all competent evidence offered in good faitli which has a bearing on the issues because that is the only way that the truth may be found and justice done.
I concede quite willingly that there may exist a question as to whether the above error, considered by itself, would warrant a reversal of the case. This is so because, from the state of the record, it seems doubtful whether the plaintiff could present evidence which would justify a finding that the defendant was driving at an unreasonable rate of speed which was a factor in causing Mr. Duncan’s death. However, whether this error alone would require a reversal need not be decided because there is more serious and prejudicial error.
The error just referred to relates to testimony brought out on cross examination from Lorin Kelly, a witness called by the plaintiffs. He stated in substance that he and his wife had arrived upon the scene immediately after the accident and that while he was ministering to the needs of Mr. Duncan he overheard part of a conversation between the defendant driver, Mr. Hecker, and the witness’s wife; and that in reply to Mrs. Kelly’s question as to how the accident happened Mr. Hecker replied, “I didn’t even see him.”
This was introduced as an admission against interest of Mr. Hecker and there is no question but that the defense was entitled to expose that full conversation on-cross-examination to bring out any qualification or explanation of the statement. However, under the guise of doing so, the-defense went way beyond that prerogative and elicited through the witness Kelly, self-serving statements allegedly made by Mr. Hecker to Mrs. Kelly. The portions of Mr. Kelly’s testimony pertinent to the point, under discussion are set out below:
“Q. Your wife told you, didn’t she, he said something like, T didn’t even see him, he ran into the side of my car’ ?”
The above question obviously did not. seek to elicit part of the conversation Mr. Kelly overheard, but related to what his. wife may have told him. The plaintiffs counsel interposed an objection to it saying:
“It calls for a hearsay answer to a hearsay question.”
The court overruled the objection and upon, request of the witness the question was. restated as follows:
“Q. Did your wife tell you, subsequently that Mr. Hecker said, T didn’t even see him. He ran into the side of my car’ ? A. She said he said he walked into the side of his car.
*23“Q. You’were present when your wife’s deposition was taken, weren’t you? A. Yes, sir.
“Q. And did you hear her testimony? A. Yes, sir; I did.
“Q. And at that time she stated that he ran into the car, didn’t she? A. I believe she did.” (Emphasis added.)
The foregoing statements elicited from Mr. Kelly were plainly designed to put before the jury an extra-judicial statement allegedly made by Mr. Hecker to Mrs. Kelly, who in turn allegedly so told her husband. The only fact which the witness knew, or pretended to know, was that his wife so told him. I do not see how anything could be plainer hearsay.1 It was thus incompetent and the objection should have been sustained.
As to the prejudicial effect of the above testimony: the defendant is not now in a good position to urge its unimportance. In view of his persistence in getting it before the jury, it would seem that he must have thought it would have a persuasive effect upon them. The plaintiff joins him in this belief. I do not think that we should conjecture that they were both wrong in believing the testimony important. Consequently, because of the errors discussed above, I think a new trial should be granted.
. See McCormick, On Evidence, Secs. 10, 223, 224, 225 and 226.