Home / Fulltext Opinions / Supreme Court of Virginia / FOOD LION, INC. v. COX (59823)

FOOD LION, INC. v. COX (59823)


FOOD LION, INC.

v.

COX


February 26, 1999
Record No. 980828

FOOD LION, INC.

v.

LINDA COX

FROM THE CIRCUIT COURT OF SCOTT COUNTY
Ford C. Quillen, Judge
Present: Carrico, C.J., Compton, Lacy, Hassell,
Keenan and Koontz, JJ., and Poff, Senior Justice

OPINION BY SENIOR JUSTICE RICHARD H. POFF


The dispositive issue raised in this appeal is
whether a party in a civil action has a right to cross-examine
witnesses called by another party as adverse witnesses.

The plaintiff, Linda Cox (Ms. Cox), filed a
motion for judgment against the defendant, Food Lion, Inc. (Food
Lion), alleging that she had been injured by the defendant’s
failure to maintain its store in a reasonably safe condition. At
trial, she testified that she had slipped and fallen on the floor
of the store. Ms. Cox called four Food Lion workers as adverse
witnesses. The first, Kenneth Marshall, testified that he saw the
plaintiff fall in a spot on the floor where he had been trying to
remove "a little black substance" with a mop, water,
and detergent.

At the conclusion of Marshall’s direct
testimony, Food Lion’s counsel prepared to cross-examine the
witness. The trial court ruled sua sponte that the
defendant was not entitled to examine its own employees until
Food Lion called them as witnesses for the defense. Food Lion
objected to that ruling and addressed the same objection as
applied to the other three store employees Ms. Cox had called as
adverse witnesses. The jury rendered a verdict for the plaintiff,
and the trial court entered final judgment fixing her damages at
$25,000.

Ms. Cox invokes the general rule that the order
of examination of witnesses lies within the discretion of the
trial court. But that rule does not apply to the order of
cross-examination of adverse witnesses.

This Court has never qualified the rule defined
and applied in Basham v. Terry, Administratrix, 199 Va.
817, 824, 102 S.E.2d 285, 290 (1958), that cross-examination of a
witness "is not a privilege but an absolute right." The
justification for an absolute right is that a rule in the
converse would be prejudicial to the party denied the right of
cross-examination.

We find no merit in Ms. Cox’s contention that
any error in the trial court’s ruling was "mere harmless
error". The right violated by that ruling is absolute; the
adjective "absolute" definitively excludes exceptions.
Accordingly, we will reverse the judgment entered below and
remand the case for a new trial on all the issues.
[1]

Reversed and remanded.

 

 

FOOTNOTES:

[1] Because other errors assigned by Food
Lion may not become involved in the conduct of a new trial, we
need not reach those issues here.

Scroll To Top