Quigley v. Thompson

Opinion by Mb. Justice Fell,

The only question raised by this appeal that need be considered is whether the fact upon which a nonsuit was based was developed by an improper cross-examination of the plaintiff’s witness. The action was to recover damages for injuries caused by being struck by the defendant’s motor car. The plaintiff called as his witness the chauffeur who at the time of the accident was operating the ear, and examined him at length to show that at that time he was in the employ of the defend *109 ant, and to identify the car by proof of its number, size, equipments and general appearance. On cross-examination this witness was asked whether at the time of the accident he was not using the car for his own purposes and in violation of the orders of the defendant. He answered under objection: “ I was operating the machine for my own personal use on an errand for myself. Mr. Thompson did n’t know anything about it whatever. I had no orders from him. I took it out, breaking one of the rules, which I had no business to do.”

While the general principles applicable to the subject are clearly defined, it is in practice often difficult to determine the exact limits of proper cross-examination. Its range must of necessity rest largely in the discretion of the trial judge. Cross-examination must be confined to matters stated in the examination in chief and independent matters of defense must not be introduced by it. Where matters of defense have been brought out by an improper cross-examination they should be considered as having been introduced by the defendant, and they cannot be considered by the court as ground for a compulsory nonsuit: Hughes v. Westmoreland Coal Co., 104 Pa. 207 ; Sullivan v. New York, etc., Railroad Co., 175 Pa. 361 . But an incident of a transaction proved and circumstances connected with it, which qualify or destroy the effect of the testimony in chief, may be brought out in cross-examination : Bank v. Fordyce, 9 Pa. 275 ; Jackson v. Litch, 62 Pa. 451 ; McNeal v. Pittsburg, etc., Railway Co., 131 Pa. 184 ; Glenn v. Phila., etc., Traction Co., 206 Pa. 135 . In the former case it was said by Gibson, C. J.: “A part}1" is entitled to bring out any circumstances relating to a fact which an adverse witness is called to prove.”

The whole trend of the examination in chief of this witness Avas to establish facts and circumstances Avhich would make the defendant answerable on the ground that the negligence alleged Avas that of his servant acting within the scope of his employment. It Avas competent in cross-examination to develop by the witness the fact, which qualified his testimony, that at the time of the accident he was using the machine in the prosecution of his own business and not in the business of his employer.

The judgment is affirmed.