198 A.D. 103 | N.Y. App. Div. | 1921
The action was brought to recover $360, alleged to be the fair value of four cows belonging to plaintiff and wrongfully sold by the defendant.
The defendant, appellant, complains that he has been prejudiced because the attorney for the plaintiff persisted in asking questions, not material or proper, which would have a tendency to influence the jury unfavorably. The plaintiff is the mother of the defendant. There had been differences between the plaintiff and her husband (father of defendant) and the questions complained of referred to their separation and the payment of alimony. Answers to these questions were all excluded and the jury were instructed to disregard the questions and any inferences to be drawn therefrom. But the ¡persistence in asking similar questions, after the plain ruling of the court, may have "influenced the jury.
The defendant also charges error because he was not permitted to examine witnesses and receive their answers to questions as to plaintiff’s mental condition. Objection to the competency of the plaintiff before she was -sworn was not taken. The following appears in the record, in the cross-examination of the plaintiff: “ Q. What department of the hospital were you in? Mr. Baker: I object to that as immaterial, incompetent, improper and inadmissible for any purpose whatever. The Court: It is cross-examination, I will permit it. [Objection overruled.] I will hold, however, that they cannot litigate the question of this woman’s mental capacity here. [Defendant excepted.] Q. Where were you in the hospital, what part of it? A. They sent me down in the insane room and then they sent me up to one of the other rooms. The Court: I instruct the jury to disregard
Having passed the examination by the court and been sworn, the mental capacity of the witness may be tested and considered as bearing upon her credibility and her degree of intelligence. In Wigmore on Evidence (Vol. 2, § 932) it is said: “ The existence of a derangement of the sort termed insanity is admissible to discredit, provided that it affected the witness at the time of the affair testified to, or while on the stand, or in the meantime so as to cripple his powers of recollection.” In 40 Cyc. 2573, it is said: . “ The mental capacity of a witness is proper to be considered as bearing upon his credibility and his lack of intelligence may tend to discredit him.” The mental condition of the witness may be disclosed by cross-examination, but this examination must be limited by the usual rules governing cross-examination. The questions asked in this case and the answers excluded are above quoted. We think it was not error for the court
But the court ruled broadly that no evidence could be offered tending to attack the sanity of the plaintiff, witness. He repeated that this question cannot be tried in this case; “we are litigating the title to these four cows and that is the only thing. ’ The defendant’s attorney was not remiss in failing to ask such further questions as he may have desired in defiance of this broad ruling of the court. The objection to the question to Dr. Burgett and the ruling of the court raised the question directly. The weight of authority seems to be that the alleged insanity of a witness is a question of fact and must be tried upon proper evidence, and the character of the evidence on this question cannot be different however the question is raised. It is proper to go into the history of the supposed insane person’s mind, before, at and after the occurrence and at the time of trial. It is held that, though this raises a collateral issue, which may take a long time to try, yet, if necessary to the full development of the truth, the party charging insanity is entitled to an opportunity to prove if, if he can. (Holcomb v. Holcomb, 28 Conn. 179; Regina v. Hill, 5 Eng. Law & Eq. 547; Rivara v. Ghio, 3 E. D. Smith, 264, 268; Livingston v. Kiersted, 10 Johns. 362.)
The court, after a witness has been sworn, will be allowed a wide discretion in determining to what extent the inquiry as to his sanity or insanity may go, and indeed whether it may be entered upon. It must appear that, in the interests of truth and justice, such inquiry is necessary, before the court is required to permit the trial of this collateral fact. It is error to hold that the fact may not in any event be tried. It is true that it does not appear whether or not the defendant had further evidence to offer upon this subject; but he was apparently in the midst of his examination stopped by a ruling which we think was erroneous.
The evidence in the case was chiefly that of the plaintiff.
The exclusion of the answer to the question “ Did you also .state that you only hoped your husband would live long enough so that you could see him in the poor-house? ” was not error. The husband was not, a party to the action and her feeling toward her husband was, therefore, not a subject of inquiry. I
The judgment and order appealed from should be reversed and a new trial granted, costs to appellant to abide the event.
All concur.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.