The Stolen BMW

 

P drives her new BMW home from the BMW dealer on June 1. She parks it in front of her house with the motor running while she goes in to pick up her running shoes. P notices some acquaintances--W, D, and T--standing on the sidewalk. P shouts to them to keep an eye on her new car. When P comes out of her house a minute later, the BMW is gone and so are D and T. P asks W where the car is. W says, "D took it."

P sues D for conversion of the BMW. D's answer generally denies P's allegations. At trial, P calls W and asks him if he saw who took the BMW. W says, "Yes, T took it." P then questions W about his June 1 statement to P that D took the BMW. D's objection is overruled. W denies making the statement. P takes the stand and over D's objection testifies to W's June 1 statement. P rests her case. D moves for a nonsuit. If D's motion is granted, what is the rationale for overruling his objections to the evidence but granting his motion? Compare Rules 607, 613, and 801(d)(1).



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