the defects could not have been cured upon the trial.18 Where there is no objection to testimony when it is given the proper remedy is a motion to strike it out.14 Defendant cannot complain on a motion for a new trial that evidence to which he objected was admitted for a limited purpose, instead of generally.15 The Federal courts cannot favor an objection to the introduction of evidence on the ground that the plaintiff's pleading fails to state a cause of action. 16 The State practice in that respect was not followed.17 The determination as to whether a witness is competent to testify as an expert rests largely in the discretion of the trial judge and will rarely be a ground for a reversal upon writ of error.18 Experts may be asked hypothetical questions, based upon the view of the facts in evidence taken by the counsel for the interrogator, although the facts are in dispute; and upon cross-examination, such witnesses may be asked hypothetical questions, based on different facts which the cross-examiner claims have been proved.19 A non-expert who testifies as to the value of property may give his estimate in a gross sum or in separate items.20 Ordinarily, a party who calls witnesses, although not bound by their testimony, cannot insist that they are unworthy of belief, and, unless self-contradicted or inherently improbable, they cannot be disregarded.21 Where a party has been surprised Co. v. Harvey, C. C. A., 216 Fed. 316. 18 Montana Ry. Co. v. Warren, 137 U. S. 348, 353, 34 L. ed. 681, 683; Stillwell Mfg. Co. v. Phelps, 130 U. S. 520, 32 L. ed. 1035. 19 Assets Realization Co. v. Wellington, C. C. A., 194 Fed. 87. 20 Chicago & E. R. Co. v. Ohio City Lumber Co., C. C. A., 214 Fed. 751; St. Louis I. M. & S. Ry. Co. v. Reed, C. C. A., 216 Fed. 741. See Detroit M. & T. S. L. Ry. v. Kimball, C. C. A., 211 Fed. 633, 636. 21 U. S. v. Barber Lumber Co., 173 Fed. 948; United States Drain. age Co. v. Manahan, 236 Fed. 144. by the testimony of his own witness, the court has discretionary power to allow him to offer evidence that before the trial the witness made a contradictory statement.22 Where the previous statement is in writing, he is permitted to call the attention of the witness to the parts which contradict the testimony.28 It is an abuse of discretion to exclude the entire statement when offered by the other side for the purpose of impeachment.24 Upon the exclusion of a competent question which admits of an answer tending to prove a fact relevant to the issues an exception is sufficient to bring the error before the court of review 25 and no offer of proof is necessary.2 When an offer of relevant and competent evidence was made, considered and rejected; the court of errors held that the objector was estopped from claiming that the record or bill of exceptions did not show the evidence thus offered.27 Ordinarily it is improper for the court to withhold rulings upon various objections to questions in depositions until after the answers have been read to the jury.28 Upon the proof of titles to land where it must be done step by step it is permissible to allow the steps to be taken out of the order of time and to admit documents bearing directly or collaterally upon the chain of title with the understanding, expressed or implied, that if they are connected they will be considered and if not connected they will be treated as immaterial.29 When before the submission of a case to the jury, irrelevant evidence previously admitted was withdrawn and the jury instructed to disregard it, an exception to its admis 22 Griffin Wheel Co. v. Smith, C. C. A., 173 Fed. 245; contra Murray v. Third Nat. Bank, C. C. A., 234 Fed. 481. 23 Griffin Wheel Co. v. Smith, C. C. A., 173 Fed. 245; Murray v. Third Nat. Bank, C. C. A., 6 Ct., 234 Fed. 481; George Brown & Co. v. O'Connor, C. C. A., 238 Fed. 552. 24 Griffin Wheel Co. v. Smith, C. C. A., 173 Fed. 245. 25 Himrod v. Ft. Pitt Mining & Milling Co., C. C. A., 202 Fed. 724. 26 Ibid. 27 Union Pac. Ry. Co. v. Harris, C. C. A., 63 Fed. 800, 804; Maxey v. U. S., C. C. A., 207 Fed. 327; Boatmen's Bank of St. Louis, Mo. v. Fritzlen, C. C. A., 221 Fed. 145. 28 State of Missouri v. Hencken, C. C. A., 174 Fed. 624. See Chicago M. & St. P. Ry. Co. v. Newsome, C. C. A., 174 Fed. 394. 29 Calaf v. Fernandez, C. C. A., 239 Fed. 795. sion will not be sustained; 30 unless it appears to have been irremediably prejudicial.31 It has been held that when a party inspects a paper produced by his adversary at his request upon the trial and then fails to offer it in evidence, it may be put in evidence by his opponent.32 The jury may be allowed, under the custody of an officer, to leave the court-room and inspect a machine or place.33 It has been held that where the plaintiff in an action for a personal injury exhibits to the jury the part of his body that has been injured, the defendant may require him to submit the same to a surgical examination; 34 and that where articles are produced by a party upon the trial, the court may permit the application of chemical tests to them; 35 although there is no State statute upon the subject. The permission to a party to offer further evidence after he has rested his case, lies within the discretion of the court.36 A judgment may be reversed for an erroneous ruling as to the order of the examination of witnesses.37 § 473e. Discharge of jury and withdrawal of juror. In the discharge of a jury and the withdrawal of a juror the State practice is usually followed.1 Even in a criminal case, where, after a trial is begun, it is discovered that a juror is disqualified, the court may, under proper circumstances, discharge the jury and order a new 30 Pennsylvania Co. v. Roy, 102 U. S. 451, 26 L. ed. 141; State of Missouri v. Hencken, C. C. A., 174 Fed. 624. See Chicago, M. & St. P. Ry. Co. v. Newsome, C. C. A., 174 Fed. 394. It was held that in the absence of a request so to charge there was no error in failing to do SO. Co-Operative Raw Fur Co. v. American Credit Indem. Co., C. C. A., 240 Fed. 67. 31 Order of United Commercial Travelers v. Young, C. C. A., 212 Fed. 132. 32 Edison El. Light Co. v. U. S. El. Lighting Co., 45 Fed. 55. 33 Owens v. Mo. Pac. Ry. Co., 38 Fed. 571. 34 Chicago & N. W. Ry. Co. v. Kendall, C. C. A., 167 Fed. 62.. 35 Lundberg v. Albany & R. I. & S. Co., 32 Fed. 501; Johnson S. S. R. Co. v. N. B. S. Co., 48 Fed. 191, 194, 195. 36 Missouri Pac. Ry. Co. v. Oleson, C. C. A., 329. 37 O'Connell v. Pennsylvania Co., C. C. A., 118 Fed. 989. § 473e. 1 Silsby V. Foote, 14 How. 278, 14 L. ed. 394, 395. trial against the defendant's objections.2 When the plaintiff is surprised by a new defense set up by the defendant in the trial, he may have a juror withdrawn, at least when the State courts, permit such a practice. § 473f. Election by plaintiff. When the plaintiff joins two inconsistent counts or causes of action, the court may suggest that he elect between them1 or in a proper case it seems that it may compel him to do so.2 A motion for the direction of a verdict against him is not the proper remedy in such a case.3 § 473g. Non-suits and dismissals. In the absence of a State statute. or practice giving such authority, the trial judge has no power to order a compulsory non-suit; 1 but he may do so or dismiss the complaint if the State practice permits this to be done. Even then the better practice is to direct a verdict for defendant. It has been said that the difference between the entry of a compulsory non-suit, and the direction of a verdict is in form only.5 2 6 The plaintiff may consent to a non-suit; but not after the commencement of the trial without the leave of the court,7 2 Thompson v. U. S., 155 U. S. 271, 39 L. ed. 146. 3 Cowen Co. v. Houck Mfg. Co., C. C. A., 249 Fed. 285. § 473f. 1 Tomljanovich v. Victor American Fuel Company, C. C. A., 232 Fed. 662. 2 See California Fruit Canners' Ass'n v. Lilly, C. C. A., 184 Fed. 570. Cf. § 185b. 3 Copper River & N. W. Ry. Co. v. Heney, C. C. A., 211 Fed. 459. § 473g. 1 Elmore v. Grymes, 1 Pet. 469, 7 L. ed. 224; D'Wolfe v. Rabaud, 1 Pet. 476, 7 L. ed. 227; Crane v. Morris, 6 Pet. 598, 8 L. ed. 514; Silsby v. Foote, 14 How. 218, 14 L. ed. 394; Castle v. Bullard, 23 How. 172, 16 L. ed. 424; Board of Com'rs v. Home Sav. Bank, C. C. A., 200 Fed. 28. See Moss v. City of Pittsburg, C. C. A., 184 Fed. 325. 2 Russo-Chinese Bank V. Nat. Bank of Commerce, C. C. A., 187 Fed. 80; Board of Com'rs v. Home 3 Central Transp. Co. v. Pullman's P. C. Co., 139 U. S. 24, 38-40, 35 L. ed. 55, 60, 61; Paul v. Delaware L. & W. R. Co., 130 Fed. 951; Shank v. Great Shoshone & Twin Falls Water Power Co., C. C. A., 205 Fed. 833. 4 Hotel Woodward Co. v. Ford Motor Co., C. C. A., 258 Fed. 302. 5 Dominion Trust Co. v. National Surety Co., 221 Fed. 618. 6 Elmore v. Grymes, 1 Pet. 469, 7 L. ed. 224. See Worthington v. McGough, C. C. A., 192 Fed. 512. An "involuntary nonsuit" ordered at the plaintiff's request is equivalent to a voluntary nonsuit. Duffy v. Glucose Sugar Refining Co., 141 Fed. 206. unless a State statute gives him an absolute right so to do.8 A State statute regulating the time when a voluntary nonsuit may be taken is followed.9 A voluntary non-suit cannot be taken after a verdict has been directed for the defendant,10 unless the State practice so permits, 11 when this may be done by the plaintiff.12 The court may compel the plaintiff to elect whether he will take a non-suit before a motion for the direction of a verdict is decided.13 It has even been held to be too late to take a non-suit after a motion to direct a verdict has been made but not decided; 14 although by the State practice the plaintiff had a right to do so.15 But after a verdict and judgment in his favor, a plaintiff was allowed, pending a motion for a new trial, to have the suit discontinued against one of two joint tort feasors who were defendants.16 § 473h. Direction of verdict. The trial judge may direct a verdict for either party in a case where the evidence is such as to make it proper to set aside a verdict in favor of the other.1 The court may submit to the jury preliminary questions of fact, and after their verdict thereupon, either submit the 8 Aetna Life Ins. Co. v. Lakin, C. C. A., 59 Fed. 989; Francisco v. Chicago & A. R. Co., C. C. A., 149 Fed. 354; Meyer v. National Biscuit Co., C. C. A., 168 Fed. 906. 9 Connecticut Fire Ins. Co. V. Manning, C. C. A., 177 Fed. 893; Whitted v. S. W. Tel. & Tel. Co., 217 Fed. 835, where the directed verdict had been signed; Pannill v. Roanoke Times Co., 257 Fed. 910; Alsop v. McCombs, C. C. A., 253 Fed. 949. 10 Parks v. Southern Ry. Co., C. C. A., 143 Fed. 276; Huntt v. MeNamee, C. C. A., 141 Fed. 293. 11 Pannill v. Roanoke Times Co., 252 Fed. 910. 12 Chicago, M. & St. P. Ry. Co. v. Metalstaff, C. C. A., 101 Fed. 769, where the State practice permitted it, after the judge had announced his intention to direct a verdict for the defendant but no such verdict had been made. 13 Pannill v. Roanoke Times Co., 252 Fed. 910. 14 Cogdill v. Whiting Mfg. Co., C. C. A., 212 Fed. 658, 660. 15 Ibid. 16 Texas & P. Ry. Co. v. Sheftall, C. C. A., 133 Fed. 722. Amer. § 473h. 1 Anglo-South Bank v. McCleary, Wallin & Crouse, C. C. A., 210 Fed. 891; Randall v. B. & O. R. Co., 109 U. S. 478, 27 L. ed. 1003; Bunt v. Sierra Butte G. Min. Co., 138 U. S. 483, 34 L. ed. 1031; Hathaway v. East Tenn., V. & G. R. Co., 29 Fed. 89; Hodges v. Kimball, C. C. A., 104 Fed. 745; Journal Pub. Co. v. Drake, C. C. A., 190 Fed. 572. |