ANTICE HAID, Appellant, v. GEORGE EBRIC, Appellee.

APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY. Argued October 17, 18, 1966. Decided December 16, 1966. 1. When special damages are pleaded with reference to documents not accessible to the opposing party, the documents should be annexed to the pleading. 2. The right to withdraw and refile pleadings may be exercised only once in an action. 3. A witness who has testified to the genuineness of a signature may be shown the signature on cross-examination and asked whether he is sure the signature is genuine. 4. An expert on automobile accidents may properly be questioned on crossexamination as to how many feet of skid marks equal a mile of speed per hour. 5. A judgment on a verdict awarding damages for injury to personal property will be reversed when the record on appeal shows that the evidence produced by the plaintiff was insufficient to establish a reasonable basis for the award. 6. The granting of a new trial generally rests within the discretion of the trial court whose exercise of such discretion will not generally be disturbed by the Supreme Court absent a showing of abuse or prejudice. On appeal, a judgment on a jury verdict awarding general and special damages for injury to personal property in a negligence case arising from an automobile collision was reversed. McDonald Acolatse for appellant. M. Kron Y angbe and Joseph F. S. Chesson for appellee. MR. JUSTICE Court. MITCHELL delivered the opinion of the The instant case arises from a complaint in an action of damages to personal property filed in the office of the clerk of the Circuit Court of the Sixth Judicial Circuit, Montserrado County, on the 29th day of July, 1964, and in the September term of said court, by one George Ebric, plaintiff against one Antice Haid, defendant. 662 LIBERIAN LAW REPORTS 663 Pleadings in the case rested at the rebutter. His Honor A. Lorenzo Weeks gave ruling on the law issues on February 9, 1965, and sent the case for jury trial on certain counts laid in the answer, reply, and rejoinder. We will say just a word here, before passing, since we will fully consider the questions later in this opinion. Defendant’s answer had attacked legal defects in plaintiff’s complaint, primarily failure to make profert certain documents to which reference had been made in the complaint as the ground intended to establish ownership, purchase cost, etc. The amended rejoinder also attacked the inconsistency of plaintiff’s second withdrawal after he had previously withdrawn his complaint and refiled ; yet in the face of all these pertinent questions raised in the pleadings, the judge in his ruling bypassed them by making comments irrelevant to the issues raised by the defendant. We shall continue for the moment. This case was called for jury trial before His Honor, D. W. B. Morris, at the March 1965 term of the court. The petty jury brought in a verdict awarding plaintiff damages in the sum of $2,485. A motion for new trial was filed, resisted, and denied, and final judgment affirming the verdict was rendered on June 2, 1965. An appeal was announced, granted, and prosecuted, and the case was brought before this Court for review. This case came up on a bill of exceptions made on eight counts; but for expediency, the major counts which we will quote herein for our consideration are as follows: r. Because defendant avers that His Honor A. L. Weeks erred in his ruling on the law issues, with particularity on the point of notice as raised in Count 1 of defendant’s answer against Count i of plaintiff’s complaint wherein the plaintiff referred to documents to be produced at the trial, which documents were in plaintiff’s possession. This action being one of damages for injury to personal property, the special damages should be specifically pleaded and proven, which ” 664 LIBERIAN LAW REPORTS contention, as raised by the defendant, was overruled, and to which ruling on the law issues, defendant excepted. “2. And also because defendant avers that His Honor A. L. Weeks further erred in ruling on the law issues when he overruled Count i of defendant’s amended rejoinder which contended that plaintiff’s action was illegal and out of court, for plaintiff had twice withdrawn in said action; to which ruling on the law issues defendant excepted. “3. And also because defendant avers that Your Honor erred in overruling this question put to a witness : ‘Mr. Witness, in answer to a question put to you on the direct examination as to whose genuine signature is appearing on the document marked by Court P-12, you answered that said signature was the signature of Judge Thorpe. I suggest to you that your said answer was misleading, in furtherance of which, I hand you again the said document in order that you might look at it and say for the court and jury whether you are sure that said signature appearing thereon is that of the traffic court judge.’ Plaintiff objected to said question on the ground that said question was usurping the function of the court and jury. To which defendant excepted. “4. And also because Your Honor erred in overruling a question put to the witness, a police officer : `Mr. Witness you will please say how many feet of skid marks are equal to a mile?’ To which plaintiff objected on the ground that the question was irrelevant and immaterial, which Your Honor sustained and to which defendant excepted. “7. And also because defendant says that Your Honor erred in denying his motion for new trial, since evidently the verdict was manifestly against the evidence adduced at the trial, but rather, as Your Honor put it, because the ruling of the traffic court was made LIBERIAN LAW REPORTS 665 against defendant, more so, in this damages suit, the case was tried de novo and by a jury, availing to either party the chance, or rather right, to win, irrespective of the ruling of the traffic court, as in keeping with law; that the verdict is restricted to the evidence adduced at the trial by both parties and not the ruling of the traffic court. To which defendant excepted.” In our effort to dispose of Count 1, we will first turn our attention to our statutes controlling on the points raised and upon which defendant has relied in his attack against the sufficiency of the plaintiff’s complaint: “The fundamental principle on which all pleadings shall be based shall be that of giving notice to the other parties of all facts it is intended to prove.” 1956 CODE 6:252. “Any statement in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in a motion. A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.” 1956 CODE 6:256. It seems now to be a well-settled principle of law that the moment plaintiff in his complaint made special reference to the chattel mortgage entered into with the Liberian Trading Corporation and his registration certificate, with the sole aim of establishing ownership to the taxicab which he alleged in his complaint to be his property for the purpose of serving his adversary with sufficient notice of that which he intended to prove at the trial, better still since he was claiming special damages, profert of such documents should have been made; and failure to have done so was incurable, especially when they were not documents alleged to be in the possession of the defendant. And the trial judge erred when he treated this all-important question with indifference in his ruling on the law issues. Count 1 of the bill of exceptions is therefore sustained. In regard to Count 2 of the bill of exceptions, the 666 LIBERIAN LAW REPORTS record before us contains the two separate and distinct documents. The first is a notice withdrawing the complete action on the 31st day of August, 1964, reading thus : “The Acting Clerk, “Civil Law Court, Sixth Judicial Circuit, “Montserrado County, “Monrovia. “Mr. Clerk : “Upon receipt of this notice, please spread upon the record of the above-named court that plaintiff in the above-entitled cause of action has this 31st day of August, 1964, withdrawn said action herein-named, with the right to refile same. “Respectfully submitted, “GEORGE EBRIC, Plaintiff “By and through his counsel : “Henries Law Firm, [Sgd.] “M. KRON YANGBE, “Counsellor at Law. “August 29th, 1964.” The second document is made in this manner, and I quote again word for word : “The Clerk, Civil Law Court “Sixth Judicial Circuit “Monrovia, Liberia. “Sir: “Please spread upon the records of court that plaintiff has withdrawn his reply, and is herewith filing an amended reply. “Very truly yours, [Sgd.] “M KRON YANGBE, Counsel for Plaintiff. “Dated in the City of Monrovia, this 5th day of October, 1964.” LIBERIAN LAW REPORTS 667 This is quite a strange course taken; however, we shall go back to our statutes to ascertain if the plaintiff is covered under the law to proceed as he did. Our Civil Procedure Law makes this mandatory provision : “At any time before trial any party may, insofar as it does not unreasonably delay trial, once [emphasis supplied] amend any particular pleading made by him by : “(a) Withdrawing it and all subsequent pleadings made by him; “(b) Paying all cost incurred by the opposing party in serving and filing pleadings subsequent to the withdrawn pleading; and “(c) Substituting an amended pleading, to which the opposing party may make a responsive pleading in the same manner as he did to the withdrawn pleading.” 1956 CODE 6:32o. When the learned judge, then His Honor A. Lorenzo Weeks, heard the law issues in this case, he, in absolute disregard for good conscience and the law, refused to consider such salient legal issues and ruled, saying among other things : “That it is the proof that counts in the trial of any given case as evidence to the court; and a judge as compass to a marina stands. The court therefore cannot sustain the contention of defendant in this respect since it is that the complaint shows the nature and extent of what the plaintiff intends to prove on the whole amended complaint. Counts 3, 5, 6, 7, 8, and 9 of the answer; Counts 1, 3, 4, 5, and 6 of the amended reply; Counts 3, 5, and 6 of the amended rejoinder are ruled to trial. And it is hereby so ordered.” Here was a judge who took recourse to the law controlling pleadings, quoted it in his ruling, then flagrantly disregarded it–another one of the wonders that face us so frequently. This was not the question of making an explanatory interpretation of any issue on which the parties 668 LIBERIAN LAW REPORTS sought the right. The statute is written in very simple language understandable by even the layman, and yet the judge intentionally misapplied the law and purposely ruled the case to trial in utter disregard of the statute that had been violated by the plaintiff. Therefore, we have no alternative than to sustain Count 2 of the bill of exceptions. A witness may be cross-examined on all matters touching the cause or likely to discredit himself, but he shall not be asked irrelevant or hypothetical questions for the mere purpose of entrapment. He may even be asked leading questions intended to establish his motive, bias or inclination–this is the right that our statutes give and it may not be restricted. And since the witness on the stand had identified the signature attached to document marked P-12 by the court as the genuine signature of Judge Thorpe, of the traffic court, the question then put to the witness on the cross-examination as laid in Count 3 of the bill of exceptions was not, in our opinion usurping the functions of the court and jury ; and the trial judge erred in so ruling. ( See 1956 CODE 6:765.) Count 3 is also sustained. When Police Officer Francis Kpanah was on the witness stand on the cross-examination, the following questions were put to him and his answers returned as follows. “Q. As a police investigating officer, please explain for the benefit of the court and jury what is meant by the word ‘speed limit.’ “A. What we mean by the speed limit in a car on a dash road, we have a mile from i to ioo. If you are running some places 15 miles per hour, on the high 45 miles per hour, and if you above 45 then you run above speed limit. “Q. Mr. Witness, you have placed on record that the speed limit of the Pontiac after you checked was 172 feet and the speed limit of the Opel was 95 feet, what do you mean by this statement, that is, LIBERIAN LAW REPORTS 669 please explain for the benefit of the court and jury. “A. I repeat, we have reaction time to take your foot from the speed towards the brake. It takes you 42 feet–that is, you are driving zo miles per hour on a paved road. That is how I got it when running too miles per hour on the road ; and that is how I got it when this man was running 172 miles and this other man was running 95 miles per hour. What I mean by speed limit is the rate each car runs is computed by the distance from the point of impact to the point of destination. “Q. So then you tell the court and jury that the speed mark of the Pontiac was 172 miles and the speed of the Opel was 95 miles per hour; am I correct? “A. Yes. “Q. Now, if the last answer is correct, I gather then it was from the speed mile you determined how fast the Pontiac was running; am I correct? “A. Yes. “Q. You will please say then, as a qualified traffic accident investigator of the police force, what was the rate of the Opel, since you know that its skid mark was running 95 feet. “A. Forty-five miles per hour; that is the Opel was running 45 miles per hour.” All of such answers given in evidence constituted expert testimony; yet when the witness was asked to say how many feet of skid marks equal a mile, plaintiff below interposed objections on the ground that same was entrapping the witness, irrelevant, and immaterial, which objections the trial court inconsistently sustained. The witness, having testified to skid marks in measurement of feet, miles, and hours, should have answered the question because he had posed himself to be an expert; and the court erred in sustaining objections thereto. And hence Count 4 of the bill of exceptions is sustained. 670 LIBERIAN LAW REPORTS Besides the testimony of Francis Kpanah, the police officer, and Wellington Sirleaf, the driver of the Opel taxicab, there was no other witness who testified to the fact that it was the Pontiac that hit the Opel in the center of the road; but let us see how strong is this quality of evidence against the statements of other witnesses who were eyewitnesses on the spot. Defendant Antice Haid testified that he was en route to Suakoko and that, as he passed the road going to the Police Academy, he observed the Opel taxicab approaching; that a car ahead of the taxi passed but, as the Opel approached, it started to turn over on the right side of the road ; then the driver cut his steering to the other side of the road and hit his car on the right side; then the two cars fell over on the said side on which he was driving. He also testified that a girl was driving the Opel taxi at the time of the impact. Nathaniel Ricks, a police officer, testified that he was told that a lady was driving the Opel taxicab and that he saw skid marks of both vehicles on both sides of the road twice before the place of impact. Witness Fouard M. Saleeby also testified to the fact that he was on the spot in his car when the defendant passed him and got ahead about so to 6o feet; then he saw the Opel car coming and suddenly it switched from its right to the left, hit the Pontiac car, and the two cars fell on the side of the road on which the Pontiac car was running, that is to say the right side of the road from Monrovia. Testifying further, he said that after the impact he stopped, left his car and went on the scene where, when he saw two ladies and two men in the Opel taxicab, he took them from the car and started searching to find how the accident happened. He noticed that the Pontiac car was on its extreme right with its two tires completely off the cold tar road and the impression of the applying of its brakes shown clearly on the road. LIBERIAN LAW REPORTS 671 Witness Abdul Massamej testified that the Opel car was ahead of his car coming down, skidding over the road, and then suddenly it hit the Pontiac car on its extreme right of the road from Monrovia, on which side the Pontiac was running. Sammiar Missaid, another witness for the defendant, testified that it was he who took the lady from the front of the Opel car and that it was she who had been driving the car with a man sitting beside her on the front seat; and that there was a man and a woman on the back seat who were also taken out; yet despite such evidence for the defendant which preponderated against the evidence for plaintiff, no attempt or effort was made in the least to rebut the facts ; and in the face of all this, the petty jury empaneled to try the case brought in a verdict awarding the plaintiff damages in the sum of $2,485. We have made a complete review of the evidence adduced at the trial of this case and it does appear to us that the verdict is not in harmony with said evidence. Hence, a new trial should have been granted in harmony with Section 820 (b) of our Civil Procedure Law (1956 CODE 6 :820 (b) ) . See also Porte v. Porte, [1947] LRSC 7; 9 L.L.R. 279 (1947) . However, the granting or refusal to grant a new trial rests within the sound discretion of the trial court and this Court may not grant a new trial unless it is shown that the trial court’s discretion was abused and exercised to the prejudice of a party. See Killix v. Republic, [1943] LRSC 11; 8 L.L.R. 173 (1943). When this case was called and heard before this Court, counsel for both appellant and appellee strongly argued the respective points couched in their briefs. Appellee’s counsel, of course, showed reluctance to make responsive answer to questions put to him from the Court in relation to his failure to make profert of documents which he relied upon to establish ownership to the damaged vehicle and cost price, or still better, why he failed to accompany 672 LIBERIAN LAW REPORTS his complaint with a bill of particulars, as the law requires, and merely offered the documents in court to be admitted into evidence without first having given notice thereof to his adversary. However, replying, he argued that it was the province of the court to admit and that their admission was therefore in harmony with law, the credibility and effect being within the province of the jury. The requirements of the law must be complied with, and strictly too, in any given case; and in the absence of a bill of particulars accompanying the complaint for special damages and a failure to make profert of documents upon which the crux of the case hinged greatly, we are startled to know how the court below arrived at its judgment. In Knowlden v. Reeves, [1954] LRSC 22; 12 L.L.R. 103 (1954), this Court said at 12 L.L.R. 108, and we quote : “Mere allegation is not proof ; and the burden of proof falls on the shoulders of the party making an allegation. The burden of proof in this case made it incumbent upon plaintiff to prove by a preponderance of evidence the allegations of fact contained of in her complaint.” Common law also gives us this rule : “Decrees in equity and judgments at law must have a basis in the pleadings and the evidence. A party’s proof cannot materially vary from his allegations… .” 41 AM. JUR. 555 Pleading � 381. The plaintiff alleged in his complaint that the defendant, now appellee, was responsible for the damage done to his Opel car. This was a mere allegation which he was bound to prove at the trial. Besides other fatal legal blunders that have been considered already in this opinion, the facts which were adduced at the trial according to the records in the case, and which have been carefully inspected and reviewed by us, show that they do not preponderate sufficiently in proof of the said complaint to authorize the awarding of special damages. On reviewing LIBERIAN LAW REPORTS 673 this case, in our probe into the records to find the quality of evidence or proof in establishment of plaintiff’s complaint, we have not been convinced that special damages were proven at the trial. We are therefore of the firm opinion that the judgment of the court below, not being in harmony with the evidence adduced at the trial, should be reversed; and the same is hereby ordered reversed with costs against the appellee. The clerk of this Court is hereby ordered to send a mandate to the court below to this effect. And it is hereby so ordered. Judgment reversed.