## Facts

- Lewis T. Finch, a guest passenger in a sedan, was injured in a collision with a truck owned by Phillip Weiner and driven by Weiner’s employee, Skinner.
- Finch sued Weiner for negligence, alleging the truck’s negligent operation caused the collision and Finch’s injuries.
- At trial, Finch called Skinner early in his case and questioned him only on limited foundational matters, including employment status and identification of an accident report.
- Over Finch’s objection, the trial court permitted Weiner to examine Skinner extensively on “cross-examination” about the details of the collision and surrounding events, even though those subjects were not covered on direct examination.
- After Finch rested, Weiner recalled Skinner and elicited substantially the same accident narrative in greater detail; Finch’s objection that Skinner had already been fully examined on those matters was overruled.
- The jury returned a verdict and judgment for Weiner.

## Issues

1. Whether the trial court improperly exercised its discretion by allowing the defendant, on cross-examination, to elicit a full accident narrative from a witness whose direct examination was limited to foundational matters.
2. Whether permitting the defendant to recall the same witness to repeat and expand the same testimony, after it had already been introduced through an expansive cross-examination, was prejudicial error warranting a new trial.

## Decision

- The Supreme Court of Errors of Connecticut sustained Finch’s appeal.
- The court held the challenged rulings, treated as deviations in the order of proof, were an improper exercise of discretion because they worked substantial prejudice to Finch.
- The court concluded the procedure gave Weiner an unfair advantage by presenting a defense-favorable account at the outset through a witness called by Finch, and the later recall compounded the prejudice.
- Disposition: error; new trial ordered.

## Legal Principles

- Trial courts have discretion over the order of proof, but that discretion must be exercised to serve legitimate trial-management purposes and with due regard for the parties’ substantial rights.
- A deviation from the regular order of proof should not be permitted when it works injustice or creates unfair tactical advantage.
- Allowing a party to introduce a new substantive narrative through expansive cross-examination of an opposing party’s witness, without making the witness the examining party’s own and clarifying the effect to the jury, may be prejudicial.
- Repetition of the same disputed narrative through recall of the witness can aggravate prejudice and support reversal.

## Conclusion

Because the trial court’s handling of Skinner’s testimony effectively allowed the defense to place its version of the accident before the jury first—through a witness called by the plaintiff—and then to repeat it on recall, the resulting unfair prejudice required reversal and a new trial.


Finch v. Weiner, 109 Conn. 616, 145 A. 31 (Conn. 1929)