{ "id": 1581977, "name": "Hightower v. Sholes", "name_abbreviation": "Hightower v. Sholes", "decision_date": "1917-03-12", "docket_number": "", "first_page": "88", "last_page": "92", "citations": [ { "type": "official", "cite": "128 Ark. 88" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "75 Ark. 251", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1502497 ], "opinion_index": -1, "case_paths": [ "/ark/75/0251-01" ] }, { "cite": "86 Ark. 48", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "86 Ark. 488", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "46 Ark. 378", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1890443 ], "opinion_index": -1, "case_paths": [ "/ark/46/0378-01" ] }, { "cite": "105 Ark. 130", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1347021 ], "opinion_index": -1, "case_paths": [ "/ark/105/0130-01" ] }, { "cite": "90 Ark. 398", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1513818 ], "pin_cites": [ { "page": "405" } ], "opinion_index": -1, "case_paths": [ "/ark/90/0398-01" ] }, { "cite": "100 U. S. 625", "category": "reporters:federal", "reporter": "U.S.", "weight": 2, "pin_cites": [ { "page": "727" } ], "opinion_index": -1 }, { "cite": "14 Pet. 461", "category": "reporters:scotus_early", "reporter": "Pet.", "opinion_index": -1 }, { "cite": "75 Ark. 463", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1502521 ], "opinion_index": -1, "case_paths": [ "/ark/75/0463-01" ] }, { "cite": "14 Ark. 558", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "90 Ark. 398", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1513818 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/90/0398-01" ] } ], "analysis": { "cardinality": 495, "char_count": 8948, "ocr_confidence": 0.494, "pagerank": { "raw": 8.77930186768011e-08, "percentile": 0.4957804489759828 }, "sha256": "af91bb0c6dd5cdd1a43575517332581d0458abc1d34206a6f2599a798f95f498", "simhash": "1:53a2c3856f1c96bc", "word_count": 1567 }, "last_updated": "2023-07-14T16:45:50.583775+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Hightower v. Sholes." ], "opinions": [ { "text": "Smith, J.\nThis is a suit between two sisters over the distribution of the estate of Denny Reed, their father, and involves also a controversy over a balance of unpaid purchase money alleged to be due appellee, who was-, the plaintiff below, by appellant;\nThe only question we need now consider is the competency of the evidence by which appellee sought to show the amount of property owned by her father at the time of his death.\nThe estate which formed the subject-matter of this litigation was not a valuable one. Appellee alleged that her father, owned, at the time of his death, $360 in money, and various notes, payable to his order, a list of which is set out in the complaint, and it was charged that appellant had appropriated this money, as well as the proceeds of several of the notes which she had collected, and that the uncollected notes were in appellant\u2019s possession and claimed by her individually.\nThe sheriff of the county was appointed administrator of Reed\u2019s estate, and, in a conversation with appellant about the assets of the intestate, was told that he had hardly left enough money to pay the funeral expenses. Appellant -became a witness in her own behalf, and, upon her cross-examination, was compelled to make certain damaging admissions in regard to statements contained in a letter written by her to the administrator in regard to the amount of money in her father\u2019s possession at the time of his death, and her ownership of certain of the notes. She was not interrogated about any of these matters in her direct examination; and it is insisted that error was committed in permitting a cross-examination thereon, it being urged that, for this purpose, the witness should have heeu called by appellee and made her own witness. A witness named Skidmore was permitted, over appellant\u2019s objection, to testify that Reed told him, two years before his death, that he was worth between seven and eight hundred dollars, but that no one was present at the time but Seed and himself.\nAppellee was asked, while upon the witness stand, how she knew how much property her father owned at the time of his death, and answered, \u201cMy father told me,\u201d and she was then asked, \u201cHow much did he say he had?\u201d But an objection was sustained to this question, and no answer was given. Upon her cross-examination, she was asked, \u2018 \u2018 How do you get your information as to how much money and notes your father owned, that you allege in your complaint he owned, at the time of his death,\u201d and answered, \u201cMy father told me.\u201d Whereupon, the court held that, since the witness had stated, in response to the question by appellant, the source of her information, she might also answer the question asked by appellee to which the objection had been sustained, and she then stated that her father told her he owned the money and notes set out in the complaint, and that the conversation occurred some time before his death.\nIt is argued by appellee that this question by appellant \u201cthrew down the bars,\u201d and rendered competent the testimony in regard to Reed\u2019s declarations concerning the amount of property owned by him. We can not agree, however, that such was its effect. Appellant had the right to ask the source of the information upon which appellee based a statement of fact. It is true the witness had already answered the question, but no objection was made to it when asked by appellant on account of the fact that it was being asked the second time. The answer to the question disclosed that the facts recited in the complaint were hearsay, and the development of this fact did not justify proof of the details of this hearsay evidence. But such evidence was admitted when the court permitted appellee to testify what her father had said, and in permitting Skidmore to testify concerning the statements alleged to have been made to him.\nWe think no error was committed in permitting appellee to cross-examine appellant upon questions which had formed no part of the subject-matter of the direct examination. In 40 Cyc. p. 2500, it is said: \u201cIn England, and in some of the United States, the cross-examination of a witness may extend to every issue in the case, regardless of the scope of the direct examination. But the more general rule is that the cross-examination should be confined to matters which have been brought out on the direct examination, and if the cross-examining party wishes to obtain the testimony of the witness as to other matters, he must do so by calling the witness to the stand as his own, and subjecting him to direct examination in regard thereto. \u20191\nCases from many states are cited which explain the practice in those states.\nIn the case of St. Louis, Iron Mountain & So. R. Co. v. Raines, 90 Ark. 398, this court considered the question of the proper practice where a party attempts to cross-examine a witness offered by his adversary upon matters not connected with the direct examination. The court there announced the different rules upon the subject, and stated that the rule which had been followed by the majority of the courts of America accorded with that announced in.the case of Austin v. State, 14 Ark. 558, where it was said:\n\u201cUpon an examination of the authorities, we think that the decided preponderance in the American courts is in favor of confining the right of cross-examination to those facts and circumstances only connected with the matters actually stated in the direct examination of a witness ; and that, if the cross-examining party wishes to examine the witness as to other matters, he must do so by making the witness his own, and calling him as such in the subsequent progress of the case.\u201d\nIt was recognized, however, in the case of Railway v. Raines, supra, that the trial court had a discretion in following this rule, and that a canse would not he reversed where the rule approved had not been followed, unless an abuse of discretion was shown. No abuse of discretion is shown here. The witness was the appellant herself, and she was being interrogated about her own statements, which could not have formed the subject-matter of the direct examination.\nObjection was also made to the action of the court in admitting in evidence a letter written by appellant to the administrator concerning the property which had come into her hands. This evidence was admissible against her, not only to contradict her, but as substantive matter showing the quantity and value of the property which she had received.\nOther questions are raised in the briefs, but we do not regard them as of sufficient importance to require discussion.\nFor the error indicated, the judgment is reversed and the cause remanded for a new trial.", "type": "majority", "author": "Smith, J." } ], "attorneys": [ "Ellis & Jones, for appellant.", ". Lehman Kay,\u2022 for appellee." ], "corrections": "", "head_matter": "Hightower v. Sholes.\nOpinion delivered March 12, 1917.\nEvidence\u2014cross-examination\u2014may cover what matters.\u2014The right to cross-examine a witness is confined to those facts and circumstances only connected with the matters actually stated in the direct examination of a witness, and if the cross-examining party wishes to examine the witness as to other matters, he must do so by making the witness his own, and call him as such in the subsequent progress of the case. The trial court, however, has a discretion in following this rule, and a cause will not be reversed where the rule has not been followed, unless an abuse of discretion is shown.\nAppeal from Fulton Circuit Court; J. B. Baker, Judge;\nreversed.\nEllis & Jones, for appellant.\n1. It was error to permit plaintiff and Tom Skid-more to testify as to statements made to them by Denny Reed. This was hearsay merely, and inadmissible. 75 Ark. 463; 78 Id. 220; 86 Id. 448; 96 Id. 387; 99 Id. 488; 107 Id. 280; 109 Id. 180; Hughes on Ev., pp. 51 to 56, 57.\n2. It was error to require defendant to answer questions asked her in cross-examination over her objection. The matters were not covered by the direct examination. Hughes on Ev. 352; 40 Cyc. 2501; 14 Pet. 461; 100 U. S. 625; 174 Id. 727; 90 Ark. 398, 405; 14 Id. 558, 563.\n3. The letter read to the jury was improperly admitted. ' 4 Ene. Ev. 808; 14 Id. 744; 105 Ark. 130.\n. Lehman Kay,\u2022 for appellee.\n.1. The cases cited are not applicable. Statements of relevant facts made by persons identified in legal interest with a party to the record by reason of privity are competent evidence. 16 Cyc. 985, 996; 46 Ark. 378; 35 Id. 248; 79 Id. 414; 78 Id. 212; 43 Id. 307. Declarations of a deceased owner of personal property, etc., are admissible. 86 Ark. 488; 86 Id. 145; 16 Cyc. 985, 996.\n2. But, if incompetent, appellant can not complain, for the error was invited. 86 Ark. 48; lb. 145; 75 Id. 267; 66 Id. 588; 69 Id. 140; 88 Id. 138; 86 Id. 315. Appellant let \u201cdown the bars.\u201d\n3. If inadmissible, it was not prejudicial, as the facts were proved by Mrs. Sboles. 75 Ark. 251; 103 Id. 87; 99 id. 597.\n4. They were admissible to contradict what she said. Kirby\u2019s Digest, \u00a7 3138.\n5. The letter was competent. 85 Ark. 43\u00d3.\n6. The evidence sustains the verdict." }, "file_name": "0088-01", "first_page_order": 116, "last_page_order": 120 }