Tort Law

Brien Roche

This page within Virginia Tort Case Law is a compilation of cases reported by the Virginia Supreme Court and summarized by Brien Roche dealing with the topic of Witnesses Statements.

Witnesses Statements-Statutes

Va. Code § 8.01-404 indicating that in personal injury cases no ex parte statement in writing may be used to contradict.

Va. Code § 8.01-417 compelling production of statement of injured party.

Witnesses Statements-Cases

2011 Ruhlin v. Samaan, 282 Va. 371, 718 S.E.2d 447.
In this personal injury action, defense counsel was properly allowed to use the transcript of a recorded telephone conversation of the plaintiff taken by the insurance adjuster for the sole purpose of refreshing the plaintiff’s recollection at trial. The statement was not identified as to the source of the document nor was it admitted into evidence.

2004 Gray v. Rhoads, 268 Va. 81, 597 S.E.2d 93.
In this police shooting case, plaintiff sought to offer prior written statements of police officers into evidence during plaintiff’s case. Defendant objected on the grounds of Va. Code § 8.01-404 which prohibits the use of certain types of prior written statements to contradict a witness. That statute did not bar the admissibility of these statements. Pursuant to a pre-trial order, plaintiff identified these statements as exhibits. The pre-trial order also directed the parties to file objections to exhibits except those based on relevance five days before trial. Defendants did not file any objections to these exhibits. In this case, the statements were not being used to impeach but were being used as affirmative evidence during the plaintiff’s case in chief and therefore, they were admissible.

1995 Norfolk & W. Ry. v. Puryear, 250 Va. 559, 463 S.E.2d 442.
Admissibility of written excerpts of plaintiff s testimony was error.

1970 Rakes v. Fulcher, 210 Va. 542, 172 S.E.2d 751.
Plaintiff attempted to subpoena statements of witnesses interviewed by defendant’s insurance company. Good cause must be shown in order to justify. Where both parties have equal opportunity to investigate and where all witnesses to accident are known and available to both sides, discovery would not be granted. For production to be ordered there must be showing of special circumstances in addition to relevancy. Work product doctrine does not offer absolute immunity. Need, however, must be greater than normal requirement of good cause.

1959 Venable v. Stockner, 200 Va. 900, 108 S.E.2d 380.
Defendant subpoenaed statements given by plaintiff to his insurance carrier. Trial court overruled plaintiff’s motion to quash. Trial court ruled statements were not admissible and they were not used or referred to during trial. Supreme Court ruled that it was not necessary to consider this assignment of error since no prejudice to appellant.

1958 Williams v. Morris, 200 Va. 413, 105 S.E.2d 829.
Witness who heard prior statement may be called as impeachment witness. However, transcription of that statement is not admissible.

1956 Ketchmark v. Lindauer, 198 Va. 42, 92 S.E.2d 286.
Defendant at time of deposition was cross-examined about statement he had given shortly after accident. This was in violation of statute controlling such statements. No objection was made to this cross-examination until time of trial. Testimony in reference to statement was essentially same as testimony that defendant gave in reference to statements made at his court martial. Motion to suppress was denied.

1954 Burton v. Oldfield, 195 Va. 544, 79 S.E.2d 660.
Lower court did not err allowing into evidence testimony of two witnesses taken at former trial where counsel’s letters sent to out-of-state addresses supplied by Navy went unanswered. Sufficiency of proof to establish unavailability of witness is largely within discretion of trial court. Here discretion not abused nor was defendant prejudiced.

1953 Alspaugh v. Diggs, 195 Va. 1, 77 S.E.2d 362.
Under Va. Code § 8.293 [now § 8.01404], written statement, not deposition, held inadmissible to impeach in case involving wrongful death or negligence.

1952 Liberty Mut. Ins. Co. v. Venable, 194 Va. 357, 73 S.E.2d 366.
Statute prohibiting use of ex parte statements in personal injury cases is not applicable to suits against insurance company for breach of contract.

1952 Solterer v. Kiss, 193 Va. 695, 70 S.E.2d 329.
Defendant sought to impeach plaintiff by use of prior written statements procured by insurance adjuster. Questions were put to plaintiff in English, transcribed in German and translated by defendant. Under circumstances, judge held statements could be used only if full facts surrounding their taking were presented to jury.

1943 Robertson v. Commonwealth, 181 Va. 520, 25 S.E.2d 352.
Statement taken in personal injury action not admissible for purposes of contradiction.

1942 Harris v. Harrington, 180 Va. 210, 22 S.E.2d 13.
Written statements in personal injury case may not be used to impeach.

For more information on witnesses see the pages on Wikipedia.