170 A. 364 | Pa. Super. Ct. | 1933
Argued November 21, 1933. This was an action (brought into the lower court by appeal from a justice of the peace) by plaintiff against defendant to recover for the board, lodging and care of the latter's ten year old son. The contract relied on by the plaintiff was made between his wife and the defendant, the latter agreeing to pay $5 a week. The defendant's contention was that Mrs. Keiter had offered to take the boy and care for him in return for his companionship.
Two of the rulings of the court below require a reversal of the judgment.
(1) It was error to permit the plaintiff to cross-examine the defendant at length as to whether he had not had similar disputes and presented the same defense *596
respecting his other children who, since the death of his wife, were being cared for by strangers. The truth or falsity of his version of the arrangement with Mrs. Keiter could not be established or disproved by evidence of his contracts or alleged contracts with other people in other places relative to his other children. Evidence of collateral matters, which do not afford any reasonable presumption or inference as to the principal fact or matter in dispute is not relevant to the issue and is excluded. "It is an established rule, applicable alike to civil and criminal inquiries, that the commission of the act charged cannot be proved by showing a like act to have been committed by the same person. The rule is thus stated in Stephen's Digest of the Law of Evidence, Article 10: `The fact which rendered the existence or nonexistence of any fact in issue probable by reason of its general resemblance thereto, and not by reason of its being connected therewith, is deemed not to be relevant to such fact' ...... `That a doing of one act is in itself no evidence that the same or a like act was again done by the same person' has been so often judicially repeated that it is commonplace": Veit v. Class amp; Nachod Brewing Co.,
Nor was the error cured by the fact that the defendant denied having had any such dispute relative to his other children and that his denials were not attempted to be rebutted by the plaintiff. The harm was done by the questions, which should not have been permitted in the first instance. The general control of cross-examination by the trial judge, referred to in Maloy v. Rosenbaum Co.,
(2) It was competent for the defendant to prove by the witness Sherman that Mrs. Keiter had told him that she was keeping the child for company and without pay, even though she had not been asked, when she was on the witness stand, whether she had so told him. She was the party who made the alleged contract in suit, (Cronkrite v. Trexler,
We find no merit in the other questions raised by the appellant.
The first, second and third assignments of error are sustained. The judgment is reversed and a new trial awarded.