194 A. 653 | Pa. | 1937
Lead Opinion
Argued April 23, 1937; reargued May 20, 1937. The court below sustained objections to certain questions proposed to be put to two of defendant's witnesses by plaintiffs' attorney in cross-examining them. The trial resulted in a verdict and judgment for defendant. These appeals are by plaintiffs, who assign as error the refusal of the court to allow the questions.
The details of the collision between the automobile in which plaintiffs were riding and defendant's automobile which give rise to the suit need not be stated. It is sufficient to say that defendant claimed he was not negligent and the witnesses to whom the questions were proposed to be propounded, husband and wife, were guests in defendant's car and their testimony went to establish that fact.
The questions proposed to be asked are these:
1. Whether the witnesses had made a claim for damages to defendant by reason of injuries he or she received in the accident.
2. Whether the witnesses had signed a release to defendant, releasing him from all claims for such injuries. *467
3. Whether the witnesses had received from defendant a sum of money in compensation for such injuries.
It is argued by appellants' attorney that these questions were proper for the purpose of attacking the credibility of the witnesses or to show bias.
From the opinion of the court below we learn that it was stated, in a side bar conference between counsel on both sides and the trial judge, that the witnesses had never brought suit against defendant, and had never made any statement in writing, or orally, indicating that he had been negligent, but that small settlements had been made with them by an insurance company on defendant's behalf. It is manifest that to permit the witnesses to answer the questions, and to tell the whole truth about the transaction, as they under their oaths were required to do, would be to lay before the jury the fact that defendant was protected by insurance, something which we have said must not be brought out upon the trial: Hollis v. UnitedStates Glass Co.,
We are not unmindful of the general principle called to our attention by appellants' counsel as stated in 70 C. J. 813, sec. 1020: "As bearing on his credibility, a witness may be cross-examined as to inconsistent acts or conduct generally, acts or conduct inconsistent with his testimony, or omissions on his part which tend to discredit him." But we think in the proper administration of justice it would not be proper under the cover of this *468
principle to permit the vehicle of cross-examination to be used to convey to the jury a circumstance highly prejudicial to one of the parties which could not directly be placed before the triers of fact. Such an impropriety in the use of cross-examination should be within the control of the trial judge in the exercise of his impartial judicial discretion. We do not regard any of our cases cited by appellants, such asIrish v. Smith, 8 S. R. 573; Ott v. Houghton,
In Lenahan v. Pittston Coal Mining Co.,
Whether a particular line of cross-examination is proper is a matter for the discretion of the trial judge: Gallagher v.Phila. R. T. Co.,
The judgments are affirmed.
Mr. Justice MAXEY, Mr. Justice DREW and Mr. Justice STERN dissented.
Dissenting Opinion
I dissent from the majority opinion. I think that the questions proposed to be addressed to defendant's witnesses on cross-examination were proper and pertinent. The probative value of the expected answers is obvious and the rules of evidence sustain the appellants' position. The asking of questions likely to elicit the truth of an issue is essential to a just result and in respect to them the limit of a trial judge's "discretion" is the boundary line of a litigant's rights.
In the case of Gallagher v. P. R. T. Co.,
In Thompson v. American Steel Wire Co.,
In Pusey's Estate,
The application of the principles just cited is, I think, in the instant case determinative of the question in appellants' favor, as I believe the following review of the facts indicate.
At about 10 p. m., December 30, 1934, the plaintiffs were passengers in an automobile being driven by Harry Zeitlin westward near Freehold, New Jersey. They were traveling about 125 to 150 feet behind the car being driven by defendant. At the scene of the accident the concrete road is straight and is twenty feet wide. A *472 collision occurred between defendant's car and the "Jackson car" coming in the opposite direction. Plaintiffs' evidence indicated that defendant, in attempting to pass a car ahead, went over on the wrong side of the road and collided with the Jackson car. Defendant's evidence was that the Jackson car when opposite defendant's car abruptly turned over to defendant's side of the road and struck the latter's automobile. After this collision the Jackson car was out of control and ran into the Zeitlin car, striking it on the left side. Defendant's car thereafter continued west on the wrong side of the road for about 300 feet.
Nathan Freedman and Anna Freedman, his wife, were passengers in defendant's car. They were called by him as witnesses and testified that his car was on its own side of the highway at all times and that there was no automobile ahead of it. On cross-examination counsel for the plaintiffs proposed to ask each of these witnesses three questions: (1) whether or not the witness had claimed damages from defendant by reason of injuries he or she had received in the accident, (2) whether or not they had in writing released defendant from all claims for such injuries, and (3) whether or not they had received from defendant a sum of money for such injuries. Exceptions to these questions were sustained and a verdict was returned for defendant. Exclusion of these questions was assigned as reasons for a new trial. A new trial was refused. Both plaintiffs appealed.
Appellants contend that the questions excluded were proper to test the credibility of the Freedmans on the theory that if they admitted they made claims against the defendant, it would indicate that they regarded the defendant as negligent and this would be contrary to their testimony at the trial. The court below ruled out these questions on the ground that the making of a claim for damages, the signing of a release, and the receipt of money in satisfaction of the claim made, was "only by inference" inconsistent with the testimony given, whereas *473 the witnesses "could have been asked concerning any statements made by them that defendant had been careless, or any statements otherwise contradictory to their testimony in direct examination." In the opinion refusing a new trial it is stated that "at the side bar conference" the trial judge was informed that "small settlements were made with Mr. and Mrs. Freedman by the insurance company on behalf of defendant" and that counsel for defendant "argued at side bar that to permit the Freedmans to answer the questions propounded would require him in re-direct examination to put before the jury the nature of the settlements and that this would inevitably result in revealing to the jury that defendant was protected by insurance and it was largely to avoid this impropriety that the trial judge exercised his discretion in excluding the testimony."
The limiting of the cross-examination "to anystatement contradictory to their testimony in direct examination" was, in my judgment, error. A witness's action in a given situation may be completely contradictory to his later sworn statement and if it is, or appears to be, so contradictory, the jury is entitled to be informed of it so that they may take it into consideration in appraising his testimony.
Cross-examination is not a privilege but a right. SeeAlford v. United States,
In the instant case the cross-examination attempted by plaintiffs' counsel of the witnesses Freedman was "directed to the development of a course of conduct incompatible with" the direct evidence they gave. That they claimed damages from the defendant for conduct of his which on the witness stand they declared blameless logically tended to contradict their sworn testimony and to impeach their credibility. The settlement which the cross-examination tended to bring to light certainly tended to destroy the effect of the testimony in chief. Wigmore in sec. 1017 of his second edition of Evidence points out that "an approved method of demonstrating a witness's error and discrediting him is the process of using a prior self-contradiction." He quotes from Chief BARON GILBERT on Evidence, 147, 150, as follows: *475 "Things totally opposite cannot receive belief from the attestation of any man. . . . Contraries cannot be true." Wigmore says (sec. 1040): "The form of the supposed contradictory assertion is immaterial. . . . The inconsistency may be found expressed, not in words, but in conduct indicating a different belief." Deeply imbedded in human nature is the recognition of the probative force of conduct; this recognition finds expression in the time-honored and commonplace maxim that "actions speak louder than words." That an apparent inconsistency between a witness's conduct and his testimony may possibly be cleared up or minimized by explanation does not affect the admissibility of testimony of such conduct.
If in the instant case the witnesses who, it is alleged, made a claim for damages and received a sum of money as compensation, did so in good faith, it follows that their sworn testimony as to defendant's freedom from negligence was not honestly given; if the claim was made in bad faith, that fact would show such a lack of moral integrity as to impeach their veracity. Any fact is admissible in evidence (unless excluded by some consideration of public policy) which tends to negative the presence in a witness of "that sense of moral duty to speak truly which is at the foundation of the theory of testimonial evidence."
Earlier in this opinion there is quoted the reasons given by the court below for excluding the cross-examining questions referred to, these reasons being "certain facts not in the record" and relating to settlements made by an insurance company protecting the defendant and possible disclosure of these facts if the questions had been allowed.
The answer to that is: (1) that the admissibility or non-admissibility of testimony must be governed by the state of the record, not tested by facts not in the record, (2) that mere affirmative answers to the questions would have served plaintiff's legal purpose and such answers *476
would not have required a disclosure that the defendant was insured or that the money paid in settlement came from an insurance company, and (3) that if counsel for defendant in re-direct examination saw fit to elicit the fact that defendant was shielded by an insurance company, his client would have to abide the consequences. This court held in Lenahan v. PittstonCoal Mining Co.,
The court below in its opinion refusing a new trial quoted from the opinion of this court in Fischer v. Commercial Nat.Bank,
In the case now before us, the questions it was proposed to ask on cross-examination were not questions whose sole purpose was to impeach the veracity of the witnesses. That is an incidental effect of every successful contradiction, but here the purpose was not merely to discredit the witnesses but to show that their testimony as to defendant's careful driving was inconsistent with their action in claiming damages from him by *477 reason of his careless driving. To show by cross-examination that a witness previously had said or done something inconsistent with the relevant fact he testified to, is a litigant's absolute right. Protection of a litigant's trial rights is a judicial duty; denial of these rights cannot properly be characterized as a mere "exercise of judicial discretion." The denial of the right of a litigant to cross-examine an adverse witness on a relevant fact is far different from a mere limitation of the extent of a cross-examination. Even such a limitation may so prejudice a party's interest as to amount to an abuse of judicial discretion. The cross-examination of a witness to show bias, or corruption, or inability or lack of opportunity to observe the thing he describes might take an impracticable range unless restrained by the trial judge by a proper exercise of discretion. Wigmore in Vol. 2 (2nd ed.) of Evidence, makes a distinction between contradicting a witness by (1) "facts relevant to some issue in the case" and (2) "facts [merely] relevant to the discrediting of a witness." In the instant case the facts appellant expected to elicit on cross-examination were facts relevant to the issue in the case. They would also tend incidentally to the discrediting of the witnesses. The questions should have been allowed.
The conclusion, which I think is the correct one, is in harmony with the decisions in other jurisdictions where the same question has been adjudicated.
In Mo. Pac. Transp. Co. v. Norwood,
I would reverse the judgments of the court below and award a venire.
Dissenting Opinion
I cannot assent to the opinion and conclusion of the majority. Both are based on an assumption that the cross-examination proposed was not in good faith; that it had for its object an insidious purpose, to reveal to the jury that defendant was protected by insurance. I am certain that such is not so, and it seems to me the record and surrounding circumstances support my view. The assumption rests solely on a statement of the trial judge, admittedly outside the record, based on a statement of counsel for defendant "at side bar," that defendant had made no settlement but that his insurance carrier had, and that if the witnesses were required to answer the questions, he would be compelled to reveal the fact of insurance.
The majority does not deny that the questions, if asked in good faith and not for the purpose of introducing *479
the insurance carrier, are entirely proper cross-examination. That they are is settled in other jurisdictions by decisions in which the precise problem arose: Mo. Pac. Transp. Co. v.Norwood,
I do not find anything in the case, except the side-bar statement of defendant's counsel, which could indicate that the "ultimate purpose was to develop something improperly prejudicial." I am at a loss to know how the allowance of the questions would compel the disclosure of insurance, and why they are branded "adroit." The question as to consideration for settlement was carefully limited to defendant. If it was in fact an insurance company that paid, the witnesses would have answered in the negative, and the matter would have been closed without any mention of the company. Instead of being adroitly phrased to invite mention of insurance it seems to me the question was drawn with care to avoid it. It was defendant's counsel who said if the questions were allowed he would so examine that it would be revealed to the jury that defendant was protected by insurance. He could introduce his company or not, as he pleased. That was his business. It was not being done by plaintiffs; they should not have been denied their right of cross-examination in such an important matter because defendant's counsel thought he might have to do something which would prejudice his case in the eyes of the jury. The very fact he thought he would have to explain the conduct of his principal witnesses, even at the risk of introducing an insurance carrier, shows how important it was to plaintiffs to have all the facts presented to the jury. If the witnesses made claims and received compensation for settlements they were inconsistent at trial in exculpating defendant from all liability no matter whose money they took; if they received the money as a gratuity without having pressed a claim the likelihood of bias is present nevertheless. Mention of insurance could explain away neither impeaching circumstance.
I assert there was no attempt "to inject something into the case which our decisions bar." Our case of *481 Lenahan v. Pittston Coal Mining Co.,
The ruling of the Lenahan case, it is true, reserves a qualification. The cross-examination must be in good faith. I can detect no bad faith in this case; nor is bad faith to be readily presumed or founded on suspicion only: Fletcher v.Saunders, supra.
In my opinion the majority also fall into error in not differentiating between "limiting" and "excluding" cross-examination. The opinion of the learned court below indicates it too confused the right of a trial judge to limit the extent of cross-examination with the exclusion of all cross-examination. It is a duty of a trial judge to limit or put an end to cross-examination when it has fully answered its purpose. But to prevent all cross-examination on a relevant and material matter, as was done here, is improper. It is a matter of right. Its permissible purpose is to bring out facts tending to discredit the witness by showing that his testimony in chief was untrue or biased. As said in Alford v. United States,
The following cases mentioned in the majority opinion, I think, are beside the point. In Fischer v. Commercial NationalBank,
The consequences of the ruling of the majority are easy to conjecture. In most litigated accident cases the defendant is insured and the insurer the real defendant — the one who pays the verdict. Such is true here. In the future "in such cases" the decision "here" will be a bar to the jury's knowing that witnesses who made claims and accepted money in settlement of them are actually denying under oath that there was any liability for the accident on the part of the defendant for the very happening for which they claimed damages and received compensation. Such information should not be kept from the jury. It most definitely indicates interest, bias, or inconsistency, and should be given to the jury to determine the credibility of the witness. The insurance carrier placed defendant's counsel in the embarrassing position of which lie complained, not the plaintiffs. Under such circumstances, surely plaintiffs should not be compelled to protect defendant's case at the cost of their own.
I would reverse the judgments and grant a venire. *484