Opinion
Argued March 2, 1926
Reversed and remanded April 6, 1926
From Multnomah: GEORGE TAZWELL, Judge.
For appellant there was a brief over the name of Messrs. Clark, Middleton, Clark Skulason, with an oral argument by Mr. B.G. Skulason.
For respondent there was a brief over the name of Messrs. Bowerman Kavanaugh, with an oral argument by Mr. Jay Bowerman.
The motion to set aside the judgment and verdict was allowed on both grounds stated in the motion. The Circuit Court had not the authority to set aside the judgment and verdict on the ground that the verdict was rendered under the influence of passion and prejudice. Our Constitution provides that no question of fact submitted to a jury shall be re-examined by the court: Article VII, Section 3, Constitution of Oregon; Hoag v. Washington-Or. Corp., 75 Or. 588 ( 144 P. 574, 147 P. 756).
The only question argued and submitted to this court was the legality of the ruling of the court in permitting plaintiff to read the letters from the office of the state engineer as a part of the cross-examination of the resident engineer. The plaintiff had introduced as a part of his direct evidence, the final estimate of the resident engineer which showed the quantity of the material excavated by the plaintiff. There is no dispute at all about the quantity of the dirt excavated. The final estimate showed that the plaintiff had excavated, under the terms of the contract, 2,176 cubic yards of solid rock which he claimed and offered evidence to show cost him $1.50 per yard. The witness Gray testified to the effect that the plaintiff moved no solid rock. The defendant was allowed, over the objection of the plaintiff, to introduce the monthly estimates made by the witness as the work progressed. The testimony of both Mr. Gray and another assistant engineer was to the effect that the monthly estimates were not accurate; that the monthly estimates were made for the purpose of paying a certain percentage of the amount earned by the contractors in order to enable them to pay their labor and other expenses; that the monthly estimates were always conservatively made for the purpose of avoiding the probability of paying more than had been earned; that it was not feasible to make accurate estimates until the work had been completed. When the work was finished it was checked up and the final estimate made. Both of these witnesses also testified that the final estimates were made from the reports of the witness Gray who testified that the final estimate, as admitted and received in evidence, showing that the plaintiff had excavated 2,176 cubic yards of solid rock, was not correct. After the witness had given that testimony, for the purpose of testing his credibility and the accuracy of his recollection, the alleged objectionable letters from the office engineer were read to him over the objection of the defendant. Defendant contends that it was prejudicial error for these letters to be read in the presence of the jury because the effect of reading them was to place before the jury the testimony of the office engineer who was not present, not under oath and not subject to cross-examination. We do not think that was the effect of the letters. The contract between the defendant and the Highway Commission provided, among other things, that the estimate of the state engineer was to be final and accepted by him as conclusive. The contract between the plaintiff and the defendant referred to the contract between the Highway Commission and prescribed that the subcontract was made subject to the contract between the defendant and the Highway Commission. The effect of this provision in the contract between the parties to this action was to make the final estimate of the state engineer conclusive and final between the parties. The letters read were a mere repetition of the final estimate already in evidence with some explanation in them to the effect that they were all made from the report of the resident engineer who was the witness under cross-examination. These letters were properly identified as coming from the state engineer's office by the witness, and they in no way contradicted the facts already in evidence. They were not introduced in evidence and counsel for plaintiff emphasized that they were being read to the witness for the sole purpose of testing his credibility and refreshing his memory. He was asked after each letter was read to him whether or not in the light of these letters he adhered to his testimony to the effect that plaintiff had excavated no solid rock.
The witness testified that the defendant excavated the solid rock. The testimony of the plaintiff was to the effect that he moved all of the material that was moved with the exception of some finishing work that is not material in this appeal. It appears from the testimony that the defendant furnished the drill which was used to blast out the solid rock which was excavated. It is provided in the contract between the parties that the defendant should furnish such tools as were needed in the work. There is no dispute in the testimony that the plaintiff furnished the team and labor required to move the solid rock as well as the common dirt. One of the principal purposes of cross-examination is to test the credibility and accuracy of the memory of the witness. Such was the avowed purpose of reading the letters on cross-examination. It appeared from the letters so read that all of the information from which the final estimate was made was furnished by the witness under examination. By the terms of the contract between the parties, they were bound by this final estimate. The cross-examination, including the reading of the letters, was germane to the testimony given by the witness on direct examination. The only reason advanced against this manner of cross-examination was that the effect was to permit the testimony of the office engineer to go to the jury. We believe this objection is not tenable.
The judge presiding at a trial has a large discretion in controlling the cross-examination of a witness. In view of the testimony given by the witness on his examination in chief, we believe it was permissible for the plaintiff to call to his attention the information coming from the office having immediate charge of making up the final estimate all of the material for which was given by the witness himself. The plaintiff had the right to test, in the presence of the jury, the accuracy of the testimony given by the witness and particularly that part of his testimony which apparently contradicted the final estimate based upon the reports of the witness. Cross-examination is a very valuable right of every litigant: Section 860, Or. L.; 40 Cyc. 2489; Furbeck v. Gevurtz, 72 Or. 18 ( 143 P. 654, 143 P. 922); McIntosh v. McNair, 63 Or. 65 ( 126 P. 9); State v. McGrath, 35 Or. 109 ( 57 P. 321); Farmers' Bank v. Saling, 33 Or. 394, 406 ( 54 P. 190); Sayres v. Allen, 25 Or. 213
(35 P. 254). The last case cited is a very instructive case describing at length the office and purpose of cross-examination. The letters were official communications touching the testimony in chief of the witness, and corroborated the witness excepting the amount of solid rock moved by plaintiff. In that particular the letters agreed with the final estimate in evidence. Reading the letters was equivalent to asking the witness if he had not reported to the highway engineer that the plaintiff excavated the quantity of solid rock shown by the final estimate. Reading those letters was not prejudicial to the defendant.
The order granting the new trial is annulled and set aside. In case the judgment entered in the Circuit Court has been canceled, it should be re-entered as of the date rendered on the verdict. The case is remanded with directions to proceed in harmony with this opinion. REMANDED WITH DIRECTIONS.
McBRIDE, C.J., and BURNETT, J., concur.
RAND, J., dissents.