Dunham v. McMichael, 214 Pa. 485

Dunham v. McMichael

214 Pa. 485

| Pa. | 1906

Opinion by

Mr. Justice Stewart,

On the trial of the case, the witness, H. Bellinger Dunham, son of the plaintiff, a lad of about eleven years, called on behalf of plaintiff, was permitted to testify to a conversation carried on over the telephone between the plaintiff and another *491representing himself or herself to be the defendant in the case. The effort was to prove by this witness declarations of defendant in the nature of admissions. When it was first attempted to introduce this evidence, the witness had so far proceeded as to give the date of the occurrence, 8th day of July next preceding — a date first suggested by the examining counsel — to describe the conversation as an angry one, and to say that the person conversing with plaintiff was this defendant, because he knew her voice, and heard her say over the ’phone who she was. Upon being inquired of by defendant’s counsel, the witness admitted that he did not know the defendant, had never seen her, and had never heard her voice before, unless it was she who had earlier in the same day attempted to call up the plaintiff on the ’phone. Under objection that the identification of defendant was insufficient, the witness was withdrawn. With a view to repeating the effort to prove the conversation, the defendant was called to testify as under cross-examination, and was asked whether she had called up the plaintiff over the ’phone on July 8, 1904. She admitted one conversation with plaintiff over the ’phone, but asserted her inability to fix the date when it occurred, hour, day or month; and when asked whether the conversation did not relate to certain specific matters suggested by counsel, denied that it did so relate, and stated what the subject of the conversation was. The learned trial judge being of opinion that defendant’s admission sufficiently connected her with the conversation, admitted against objection the witness to testify to the details of the conversation. This ruling is the subject of the second assignment of error.

It is first of all to be observed that the identifying circumstances relied on, are to be found exclusively in the defendant’s testimony; there are none in the testimony of the witness by whom it was proposed to prove the conversation, and no other witness refers to the occurrence even remotely. Again, it is to be remembered that in passing upon the question of identification, the testimony of the witness Dunham, when called to the stand the second time, was not a subject of consideration. It was not a question how far that fitted in with the statements made by defendant when under cross-examination; the real question was as to the admissibility of this particular evidence, *492and this was to be met and passed upon with the offer of the evidence, and in the light of what had preceded. Defendant had the right to have it excluded at that point in the trial, if then the evidence was not sufficient to carry it to the jury. The determining question was, — did the admissions contained in the defendant’s testimony so far supplement the testimony of Dunham when first called to the stand, as to make his later testimony, with respect to the conversation he heard, admissible ? It was just as though the offer had been to show what Dunham first testified to, to be followed by certain specified admissions of the defendant. And in this inquiry it is important to remember that while defendant was called as an adverse party, she was called only for the purpose of establishing affirmatively the necessary supplemental facts. She was under no burden to acquit herself of or disprove in any degree the conversation imputed to her. No unfavorable or prejudicial inferences are to be derived from any failure on her part to state facts and circumstances which would negative the claim made against her. It was not as though the conversation had been already testified to and she had taken the stand to contradict or explain it. Oqly so much of her testimony as was affirmative in support of plaintiff’s contention could be considered. Her admissions were, first, that at one time or other during the year 1904 she had conversed with plaintiff over the ’phone ; and, second, that the conversation was an angry one. The first could have no identifying significance except as- it also was supplemented by evidence that could come only from the plaintiff herself, that she had but the one ’phone conversation with defendant during that year. To make the second an identifying circumstance, it was just as necessary that it should be supplemented in the same way. The inquiry was not narrowed appreciably by showing that the conversation was an angry one, for it is not to be supposed that any conversation between these parties would be pleasant and agreeable; to a reasonable certainty it would be animated and most likely vituperative on one side or the other, probably on both. Whether one or many, the same feeling and temper would be displayed. The fact that it was angry, as Dunham testified, is the only point of agreement between the two witnesses.' That this circumstance would be entitled to significance greater *493or less depending upon other facts in the case, we concede, but with no other support than the fact that a ’phone conversation had occurred some time within a year between the parties, we cannot agree that it was a sufficient identification to open the way for the admission of the evidence. It is no answer to say that this Mew of the matter imposes upon the plaintiff a burden she could not in the nature of things meet, that she was incompetent as a witness, and therefore it was out of her power to prove that she had had but one conversation with the defendant over the ’phone. Without here discussing the competency of the plaintiff as a witness, but for present purposes assuming her incompetency, it was a circumstance wholly aside from the immediate question before the court. Her disability might have been to her disadvantage of course in this particular case; but rules of evidence are not made to fit particular cases, and they are not to be relaxed to avoid an apparent hardship in any case. This sort of hardship is frequently encountered, but courts are powerless to relieve it. When the offer to show the conversation was first made, it was rejected because the identification was insufficient; it was admitted later only on the ground that defendant had admitted to a conversation ; and yet an examination of the testimony of Dunham will show that the conversation she admitted was not at all that which Dunham testified to. It was a virtual denial on her part that she had had any such conversation as he spoke of, and being uncontradicted, instead of her testimony supporting the offer, the effect of it was just the opposite. True, the plaintiff was not bound by her answers, but this simply means that plaintiff was at liberty to contradict her if she could; no evidence was offered by way of contradiction, with the result the same evidence that established the fact of a conversation, established the other fact that defendant did not have the conversation that it was proposed to prove. We are of opinion that the objection to Dunham’s testimony ought to have prevailed. It is a well-recognized rule of evidence, that testimony may be rejected which appears to be founded on data so scanty, that the witnesses’ alleged inferences from them may be pronounced either absurd or extreme. The claim of the witness that he knew one of the parties of the conversation was the defendant is absurd on its face; the inference from all *494the proved facts that defendant was one of the parties to it, would be too extreme to entitle it to acceptance. For the reasons we have given, this assignment of error must be sustained.

The plaintiff herself was called and sworn as a witnesses under objection that because of the peculiar character of the case she would be testifying against her husband. The sixth assignment relates to this ruling of the court. When a point was reached in the examination of the witness that introduced the witness’s husband, an objection was interposed and sustained. What preceded was not only without significance, incapable of working prejudice to the defendant, but should be regarded as striken out, since plaintiff’s counsel so requested and the request was not opposed by the other side. The record does not show that it was actually stricken out, and it does not appear that the jury was directed to disregard it; but it was so manifestly harmless that even if admissible, a question we are not called upon to decide, it would not of itself call for reversal.

The fifth assignment of error must be sustained. The plaintiff had shown as a basis of damage the probable annual expenditure required for the support of plaintiff’s family, in the style in which they had been living, before the cause of action arose. This of course was admissible only on the theory that such expenditures had been met by the husband, whose support it was alleged had been withdrawn. It was proposed to show in reply that the plaintiff had an income of her own, that it had been applied toward the cost of the family’s living, and that the actual loss of support was the difference between the total and the plaintiff’s contribution. The evidence should have been admitted. The total cost .of the living would certainly be an unfair measure of damages, if in point of fact, the plaintiff herself had contributed out of her own funds toward these expenses. The other assignments of error call for no comment. They are without merit and are overruled.

Judgment reversed and a venire facias de novo awarded.