Cahoon v. West

• Decision Date: 16 June 1899
• Citation: 20 Utah 73,57 P. 715
• Parties: JOHN P. CAHOON AND REYNOLDS CAHOON, CO-PARTNERS, UNDER THE NAME OF JOHN P. CAHOON & BROTHER, RESPONDENTS v. BRIGHAM E. WEST, JESSE W. FOX, JR., AND ALBERT FISHER, APPELLANTS
• Court: Utah Supreme Court

57 P. 715

20 Utah 73

JOHN P. CAHOON AND REYNOLDS CAHOON, CO-PARTNERS, UNDER THE NAME OF JOHN P. CAHOON & BROTHER, RESPONDENTS v. BRIGHAM E. WEST, JESSE W. FOX, JR., AND ALBERT FISHER, APPELLANTS

Supreme Court of Utah

June 16, 1899

Appeal from the Third District Court, Salt Lake County, Hon. A. N Cherry, Judge.

Action on an official bond against the principal and sureties to recover damages for the alleged wrongful taking and disposing of certain goods claimed by plaintiffs. From a judgment for plaintiffs defendants appeal.

Reversed and remanded.

George L. Nye, Esq., for appellants.

The court erred in sustaining plaintiffs' objection to the questions asked the witness Winder on cross-examination.

Winder was the defendant in the attachment suit. He was the one who was supposed to have made the bill of sale. He is a brother-in-law of plaintiffs and was produced by them as a witness and the first question asked by plaintiffs' counsel was:

Q. You are the party who made the bill of sale to J. P. Cahoon &amp Bro. are you?

A. Yes sir.

Appellants insist that they were entitled therefore to cross-examine Winder at length, concerning all of the transactions of the alleged transfer and change of possession of the goods mentioned in the bill of sale.

No plea of fraud was necessary. The bona fides of the alleged transfer and bill of sale was directly attacked by the statute, Sec. 2837 C. L. U. 1888, Sec. 2473 R. S., and we were entitled to have all the facts before the court.

Mr. Rice in his valuable work on evidence, Sec. 585, says:

"On the cross-examination counsel should be allowed free range within the subject matter of the direct examination, (Buckley v. Buckley, 12 Nev. 423), and a wide latitude should be given to a party who has to prove a negative, (Anderson v. Russell, 34 Mich. 109), or to one examining a witness who was a participant in an alleged fraud." Anderson v. Walter, 34 Mich. 113; Jacobson v. Metzger, 35 Mich. 103; Baird v. Daly, 68 N.Y. 547.

Rice on Evidence, Secs. 586-7, lays down a rule of law broader than that for which we contend. "The cross-examination of a witness cannot be confined strictly to the precise subjects called to his attention upon direct examination, but should be allowed to extend to any matter not foreign to the subject matter of such examination, tending to limit, explain or modify it." Haynes v. Ledyard, 33 Mich. 319; Baird v. Daly, 68 N.Y. 547; Campau v. Dewey, 9 Mich. 381; Insurance Co. v. Crampton, 43 Mich. 421; Kalk v. Fielding, 50 Wis. 339-344; Detroit, etc., R. R. Co. v. Van Steinberg, 17 Mich. 99-109; Turrer v. Grand Rapids, 20 Mich. 390; The Farmers' Ins. Co. v. Crampton, 43 Mich. 421.

Messrs. C. F. & F. C. Loofbourow, for respondents.

Whatever may be the English rule upon this subject, the rule invoked by appellants in this case is not the American rule.

In Rice on Evidence, Vol. 1, p. 586, it is said:

"A party has no right to cross-examine any witness except as to facts and circumstances connected with the matters stated on his direct examination. If he wishes to examine him upon other matters, he must do so by making the witness his own, and calling him as such in the subsequent progress of the case."

Stewart Rapalgie--Law of Witnesses, Sec. 246.

"In this country the weight of authority undoubtedly is that the right to cross-examine a witness is limited to the matters stated by him in his direct examination. * * * The better opinion seems to be that if it be desired to examine a witness upon matters other than those drawn out upon his direct examination, the party must make the witness his own, and call him as snch. Railway Co. v. Stimpson, 14 Peters, 593; Wharton's Law of Evidence, Sec. 529; Greenleaf on Evidence, Vol. 1 Sec. 425; Ency. of Pleading & Practice, Vol. 8, p. 102, (about 100 cases cited); Atwood v. Marshall, 25 Neb. 173 (71 N.W. 1064); State Bank v. Waterhouse, 70 Conn. 76 (38 Atlantic, 904).

We invoke the rule laid down in Omaha National Bank v. Thompson, 39 Neb. 269 (57 N.W. 997).

"While great latitude must of necessity be given in the cross-examination of witnesses charged with participation in fraudulent transactions which are the subject-matter of defense pleaded, yet this latitude is subject to limitation in the sound judicial discretion of the trial judge; and unless it is made to appear in this court that such discretion has been exercised to the injury of the complaining party, the judgment will not be reversed merely because of such limitation."

BARTCH, C. J. MINER, J., and BASKIN, J., concur.

OPINION

BARTCH, C. J.

This is an action on an official bond against the principal and sureties, to recover damages for the alleged wrongful taking and disposing of certain goods claimed by the plaintiffs. It appears from the record that the goods in question, consisting of whiskey and other liquors, originally belonged to one R. H. Winder, a saloon keeper, and, the plaintiffs claim, they were turned over to them in part payment of a debt owed them by Winder. The defendant West, as constable, under an attachment proceeding, in an action commenced before a justice of the peace by the Murray Meat & Live Stock Company against R. H. Winder, made a levy on the goods and afterwards sold the same on execution. At the trial of this cause the plaintiffs recovered judgment against all of the defendants who thereupon appealed.

The decisive question, as to this appeal, is whether the court erred in sustaining plaintiff's objection to certain questions asked the witness Winder on cross-examination. The witness, who was the defendant in the attachment suit, in his examination in chief, was asked questions and testified in part, as follows:

"Q. You are the party who made the bill of sale to J. P. Cahoon & Bro., are you?

"A. Yes, sir.

"Q. You were then engaged in the liquor business at Murray, were you?

"A. Yes, sir.

"Q. Were you familiar with the value of liquors at that time and at that place?

"A. Yes, sir."

On cross-examination the witness was asked, among others, the following questions: "That bill of sale was given by you to J. P. Cahoon & Bro., was it? Mr. Winder, were these goods mentioned in the bill of sale delivered by you to John P Cahoon & Bro. on the date mentioned in the bill of sale? Were those goods mentioned in this bill of sale...