City of Philadelphia ex rel. McGinn v. Reeder

173 Pa. 281 | Pa. | 1896

Opinion by

Mr. Justice Dean,

McGinn, the use plaintiff, under a contract with the city, payed Kirkbride street on which defendants’ lot fronts, and filed a lien for the same. In sci. fa. on the lien, defendants pleaded a failure of contractor to properly do the work. Among other witnesses to prove faulty work, defendants called T. B. M. Addis, agent for Citizens’ Municipal Association, who testified to the defective construction of the pavement. On cross-examination, plaintiff’s counsel proposed to ask the witness whether he had not, in a letter to the president of the Municipal Association, falsely accused John Martin, assistant commissioner of highways, in charge of this work, through the false .swearing of Clerk Isaac Martindale, of corruptly receiving money not earned and thereby defrauding the city; the purpose of the offer being to affect the credibility of the witness. To this, defendants objected, on the ground that the testimony was irrelevant. The court permitted the question, and defendants excepted. This, and another question of similar import, which last was not answered, constitute the assignments of error preferred by appellants.

So far as the fact proposed to be proved in response to the interrogatory is concerned, no harm resulted to defendants, for the witness denied he had made such false report. But the interrogatory was propounded orally in the hearing of the jury; •appellant argues, it should have been reduced to writing and submitted to the court, or have been made at side bar out of hearing of the jury. That, although the answer did defendants no harm, the statement, in substance, of the expected answer, with detailed circumstances as to time and place, necessarily prejudiced defendants’ case.

We are of opinion, the fact proposed to be proved was evidence as bearing on the credibility of Addis.

The work for which the lien had been filed, was constructed by the city under the supervision of its sworn officer, Martin, •and had been accepted by it as well done and according to the specifications. Unless the weight of the presumption in plaintiff’s favor thus raised was rebutted by direct and positive evidence to the contrary, defendants’ case failed, for in their notice of special matter, they averred the work had not been done in .accordance with the contract, proposals and specifications. This was an indirect attack on either the competency or integrity of the supervising officer, Martin. Addis testified in support of this averment, that instead of the street being graded out fifteen inches below the top of the pavement, it had only been graded eight to nine inches; that the blocks had been laid on a very thin coat of gravel or fine sand, and spaces left between the blocks not filled in, and the bed underlying was of loam. If this were true, the work did not come up to the specifications, and there was gross dereliction on part of the officer, Martin,, whose duty it was to see that the contractor performed his work according to his contract.

If Addis were believed, the presumption that the city’s, sworn officer had done his duty, was effectually rebutted. But plaintiff attacked the credibility of Addis, and alleged that he was spiteful and prejudiced against Martin; that his testimony was-prompted by ill feeling towards him, and they proposed to ask him whether he had not at another time falsely and maliciously accused Martin of corruption as an officer, in connection with the very work in that territory, of which the pavement in front of defendants’ property was a part, by receipt of the fruits of perjury by a clerk. This was not an independent fact; not as if the witness had been asked whether he had not at some time- or other made a false accusation against Martin; but it was whether he had not once before, in connection with a part of the work, which was the subject of dispute, made a false accusation against Martin. If he had done so, the jury might fairly infer his malice continued unabated, and that his testimony now, which was, in effect, an indirect accusation of Martin, was also prompted by malice; that his attitude in this issue was not solely to disclose the truth, but to gratify his hatred of Martin.

Observation and experience have taught us to act in the gravest affairs of life in thus judging the credibility of testimony, and we think there was no error in permitting the question.

However, the witness denied making the alleged false statement ; but defendants aver, the offer having been made in the hearing of the jury to prove the fact, that, of itself, to some degree, had the same effect as if it had been proved, therefore it was error to state the offer in open court.

It is doubtless true, an overruled offer in the hearing of the jury to prove certain facts often prejudices them against the party to whom the proposed proof is unfavorable. The jury may and often do conclude the party making the offer is able to prove the facts stated in it, and but for the adverse ruling of the court would have done so; and this is the reason for side bar and written offers. But when the oral offer is admitted, and the proof of it wholly fails, surely the adverse party has no reason to complain that the jury may have been prejudiced. If any prejudice resulted, the natural tendency was to arouse it against the party making the unfounded offer or groundless accusation.

The- second specification of error is of the same character. Both are overruled, and the judgment is affirmed.