E. F. Spears & Sons v. Winkle , 1922 Ky. LEXIS 503 ( 1922 )

Opinion of the Court by

Judge Clay —

Reversing.

This is the second appeal of this case. On the former appeal the judgment was reversed and the cause remanded for a new trial. Spears & Sons v. Winkle, 185 Ky. 585, 217 S. W. 691.

On the next trial appellee’s evidence differed materially from that contained in the bill of exceptions on the first trial, and the court refused to permit the introduction of the bill for the purpose of impeachment. In the early case of Baylor v. Smithers, 1 T. B. Mon. 6, the court held that a bill of exceptions taken on a former trial was admissible on a subsequent trial for the purpose of impeachment, and that its exclusion was prejudicial error. In discussing objections to the introduction of such evidence similar to those made by appellee’s counsel in'this case, the court said:

‘ ‘ The statements contained in a bill of exceptions must be supposed to have undergone, not only the inspection of each party or their counsel, but, moreover, the scrutiny and supervision of the court by whom the exceptions are signed. When enrolled, those statements in fact compose part of the record, and are entitled to as much verity, and are deserving as much credit,- as would be the testimony of any witness who might prove what the witness whose statements are contained in the record, proved on a previous trial; and no rule is better settled, and none more frequently acted upon, than that which allows evidence of what a witness has previously sworn or said, to impeach or discredit his testimony.”

Judgment reversed and cause remanded for a new trial consistent with this opinion.