majority">

The opinion of the court was delivered by

Brewer, J.:

This was an action of replevin, brought by plaintiff in error to recover the possession of certain personal property taken on execution as the property of her husband.

Weight of evidence, reasonableness evidence; of testimony. The first proposition presented to our consideration is, that the verdict is against the weight of the evidence. We cannot sustain this claim. True, the plaintiff and her husband both testified that the property was hers, bought with money given to her by her husband’s mother; aucj j.jjere ¡g oniy circumstantial evidence bearing against this positive testimony. But the contract testified to by plaintiff and her husband is of a character which taxes most severely our credulity, and which it seems to us requires but slight circumstantial testimony to overthrow. We cannot agree with the learned counsel, that because a witness testifies to a matter it must be believed unless there be testimony directly impeaching the witness, or contradicting the testimony. The very matter stated by the witness may be too improbable to be believed by any intelligent person, and its mere statement is its own refutation, without a word of impeaching or contradictory testimony.

1 Evidence cross examination: admissibility. Again, error is alleged in admitting certain impeaching testimony in the cross-examination of a witness whose testimony was taken by deposition. The facts are these: Anticipating that the husband of the plaintiff would be called as a witness, the defendant took the depositions of certain parties in Indiana for the purpose of impeaching his testimony by proof of different statements outside of court. In such depositions certain questions were asked and answered upon the direct examination as to statements made by Callison; on cross-examination, further inquiry was made as to these statements. Now upon the trial the court excluded the testimony in chief in the depositions respecting the statements, for lack of a sufficient *37identification of time and place, but admitted the cross-examination, and admitted it too upon the offer of the defendant, and over the objection of the plaintiff. In this the court erred. As a rule, the admissibility of a cross-examination depends upon the admissibility of the direct examination. If upon any matter the testimony in chief is excluded, no cross-examination thereon is allowed. The fact that testimony has been taken by deposition before the trial, in no manner affects the question of the competency of each and every part of it. Its competency is determined in the same manner, and upon the same principles, as though the witness was present on the stand and being interrogated in person. A question which, if the witness were present, counsel could not ask, cannot be asked in deposition; and if asked and answered, must be stricken therefrom. In the case of Wilson v. Wager, 26 Mich. 452, the court, by Christian cy, J., says: “All testimony elicited on such cross-examination, consisting as it does of facts which, relating to the direct examination, may have been omitted or concealed in that examination, or facts tending to contradict, explain, or modify some inference which might otherwise be drawn from them, must in the nature of things constitute a part of the evidence given in chief, and both alike and together must therefore be treated as evidence given on the part of the party calling the witness.” It follows from this, that the testimony elicited upon the cross-examination of the witness by the plaintiff must be taken as evidence on the part of the defendant. It may be remarked that this testimony is not that of the statements of a party to the suit, and therefore competent as an admission; nor of a prior owner while in possession, for the fact of his ownership at any time is the matter in controversy; nor is there anything in this cross-examination any more than in the direct sufficiently identifying time and place. So that the only ground upon which its admissibility could be claimed was, that it was testimony called for by plaintiff, and which having once elicited he could not withdraw. But when we remember that each question, as it comes in a deposition, is to be ruled upon as *38though the witness were personally present, that the testimony elicited upon cross-examination is really the testimony on the part of the party calling the witness, and that the testimony is not offered until the deposition is presented to be read, it is apparent that the court erred in admitting the cross-examination of a witness as to statements made by one not a party to the suit, after his direct examination thereon had been excluded.

Another objection is to this instruction:

“The burden of proof in this case is on the plaintiff. She must prove the ownership by a preponderance of testimony. By a preponderance of testimony, I do not mean such a preponderance as satisfies beyond a reasonable doubt, as in criminal cases, but only suoh a preponderance as clearly outweighs the evidence upon the other side.”

2. Instruction; preponderance of evidence. It is insisted that if there be the slightest preponderance in the plaintiff’s testimony over that of the defendant, the former is entitled to the verdict, and that, by the use of the term “clearly,” the jury would naturally be misled, and understand that the plaintiff’s case must A be fully and abundantly established by the testimony, and so as to be easily apparent to any and every one. We think there is force in this, especially in a case like the present where the testimony is conflicting, and the facts doubtful. The jury may well have found for the defendant because the plaintiff had failed to clearly prove her ease. They may have been loth to believe in the verity and bona fides of a contract so remarkable as that testified to by plaintiff and her husband, and yet not wholly disbelieved their testimony, and so under the instruction found that the preponderance was not clearly with the plaintiff. Of course, there may be many cases in which there is no possibility of a jury’s being misled by such an instruction, but in this case it seems to us very possible that they were. The case of Field v. Kinnear, 5 Kas. 233, is in this respect very much in point.

We think also the instruction as to the effect of a purchase with the mingled means of husband and wife, hardly applicable to any of the evidence in this case. But for the *39two errors above named the judgment will be reversed, and the case remanded for a new trial.

All the Justices concurring.

Citation profile

Relationships

How this case has been treated — in progress