Opinion
8 Div. 251.
November 25, 1920.
Appeal from Circuit Court, Limestone County; R. C. Brickell, Judge.
J. G. Rankin, of Athens, for appellant.
When not responsive to the question, illegal evidence may be excluded on motion. 112 Ala. 490, 20 So. 526. Questions for impeachment are not objectionable, because leading. 78 Ala. 284, 56 Am. Rep. 31; Jones on Evidence, §§ 818, 840; Wigmore, § 779. The contract requiring the corn to be shipped by boat, a shipment by rail would release the buyer from obligation. 1 Ala. App. 664, 56 So. 49.
Eyster Eyster, of Albany, for appellee.
The issues were clearly and properly submitted to the jury under a proper charge of the court, and no error of a harmful nature intervened.
The statement of witness Taylor, in response to the question propounded to him on cross-examination, "It was a part of the contract that it was to be sent by boat?" that "that part of the contract did not concern me," was clearly the statement of a conclusion, and purely gratuitous, and the court erred in overruling the motion of defendant to exclude it. Am. Oak Extract Co. v. Ryan, 112 Ala. 337, 20 South, 644.
However, in view of the fact that the issue between the parties was simple and well defined not only by the evidence, but clearly stated to the jury in the charge of the court, we hold that this error was without prejudice to the appellant, and will not work a reversal of the judgment.
The witness Taylor on cross-examination admitted that he had a conversation with Frost some time in February, 1918, with reference to getting a boat to move the corn sold by defendant to plaintiff, and stated: "I did not tell Mr. Frost in that conversation that I had some corn already paid for that was liable to be damaged."
After the plaintiffs had concluded their evidence in chief Frost was offered as a witness and, after testifying to the conversation had with the defendant in respect to a boat to move the corn, he was asked by the defendant, "Do you recall Mr. Taylor telling you, in that conversation that you had when you called the Lyle-Taylor Grain Company, that he had other corn already paid for that was exposed to the weather?" At the time this question was put to the witness there was evidence before the court and jury sufficient to indicate that this question called for material testimony tending to impeach the statement of witness Taylor, and it was not subject to the only objection interposed to it — that it was leading.
One of the exceptions to the rule against leading questions is when the purpose of the question is to impeach a witness and elicit evidence contradictory of statements made by the witness on the trial. Phœnix Ins. Co. v. Moog, 78 Ala. 284, 56 Am. Rep. 31; Jones on Ev. §§ 818, 840.
However, when there is a discrepancy between the predicate or the statement sought to be contradicted and the question, it is not error to sustain an objection to the question. Murph v. State, 153 Ala. 67, 45 So. 208. There was such discrepancy here, as indicated by the italicized portion of the statement by the witness Taylor, and the question propounded to the witness Frost; and the ruling of the court was free from error.
Charge 8, refused to the defendant, was abstract, and for this reason, if no other, was properly refused.
Finding no reversible error in the record, the judgment of the circuit court will be affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.