Pittsburg & Birmingham Passenger Railway Co. v. Boyd , 4 Pennyp. 110 ( 1884 )

the opinion of the Court was delivered by

Paxson, J:

It was held in the Southwark Insurance Company v. Knight, 6 Wharton, 327, that where a party offers in evidence a deposition taken on his own behalf, he must, if required by the other party, read the whole, and cannot select-some portions and omit others. See also Logan v. McGinnis, 2 Jones, 27.

Upon the trial below, the defendant’s counsel offered in evidence a portion only of a deposition taken "on his behalf. The' portion offered was the cross-examination. The plaintiff’s counsel objected “unless the whole of the deposition be read.” The learned Court ruled: “We will admit the part that is offered, and any part of the deposition that is necessary the plaintiff may offer.” This is the ruling as it appears in the record as printed, and differs slightly from that set out in the assignment of error. As it is wrong either way, the difference is not very material.

It was certainly an anomalous proceeding to offer the cross-examination in chief. The permission accorded the plaintiff to offer or read the balance of the deposition does not meet the difficulty. The examination-in-chief was not in evidence, and what is not in evidence cannot be read to the jury. The only way open to the plaintiffs to get it before the jury was to offer it in evidence themselves. This would have made the witness their own to that extent, and even the reading of it by the plaintiffs under the circumstances would have been a qualified indorsement of the witness.

The plaintiffs were entitled to have the entire deposition read to the j ury by the party offering it.

It was urged, however, that the error was technical, and not hurtful to the plaintiff. If we could safely say so we would not reverse, but just what effect the testimony of the witness may have had upon the jury we do not know. The defendant evidently regarded the examination-in-chief as unfavorable, or he would have offered it in evidence and read it. The examination-in-chief showed the witness to have been in the employ of the defendant. This is a slight circumstance, but it was in the deposition, and the plaintiffs were entitled to have it go to the jury, as affecting any question of bias on the part of the witness.

Judgment reversed and a venire facias de novo awarded.