City of South Bend v. Hardy

• Decision Date: 16 December 1884
• Docket Number: 10,771
• Citation: 98 Ind. 577
• Parties: City of South Bend v. Hardy
• Court: Indiana Supreme Court

98 Ind. 577

City of South Bend v. Hardy

No. 10,771

Supreme Court of Indiana

December 16, 1884

From the St. Joseph Circuit Court.

J Hagerty and L. Hubbard, for appellant.

W. G George and A. Anderson, for appellee.

OPINION

Black C.

The appellant was sued by the appellee to recover damages for his personal injury, caused through the negligence of the appellant, by a defect in a sidewalk, over which the appellee was passing at night.There was an answer of general denial.

Two questions embraced in a motion for a new trial made by the appellant, the overruling of which is assigned as error, are presented by counsel for our consideration.The first relates to the exclusion of certain evidence; the second, to the giving of the eleventh instruction to the jury.

The plaintiff testified as a witness in his own behalf.On cross-examination he testified that he was absent from South Bend a short time; that he was in Michigan and Wisconsin; in Wisconsin most of the time, in Michigan four days; that he was in Cadillac, Michigan; that he did not conspire with others to defraud a life insurance company during his absence; that he did have life insurance before he went to Michigan.

Counsel for the appellant then asked the witness, "What amount of life insurance did you have at the time you were absent from the State?"Upon objection being made by the appellee to this question, counsel for the appellant stated to the court"that the defendant proposed and offered to prove, by such cross-examination, circumstances tending to show that said plaintiff had had a large amount of insurance on his life; that he secretly left the State and concealed himself; that during his absence his friends attempted to collect his life insurance, alleging that he was dead; and facts tending to show plaintiff's knowledge of such concerted attempt to defraud the life insurance company."

The court sustained the objection and refused to require the witness to answer the question.

Counsel for appellant then asked the witness, "Do you not know that during your absence, it was alleged by your acquaintances that you were drowned at Cadillac, Michigan?"To which the witness answered, "Yes."Counsel for appellant then asked the witness, "Did you not have your life insured before you left South Bend for Michigan and Wisconsin?"Counsel for the appellee objected to the question.Counsel for the appellant then stated: "We expect to show that the plaintiff had insured his life for $ 5,000 before going away; that he concealed his whereabouts; that, with his knowledge, and to defraud the life insurance company, it was reported by his friends that he had been drowned at Cadillac, Michigan; that he went to Wisconsin to conceal himself to assist in the attempted fraud."The court ruled that the question should not be put or answered.

The date of the trial was January 9th, 1883.There was evidence showing that the appellee's absence from South Bend, when he visited Michigan and Wisconsin, was an absence for about three weeks in June or July, 1880 or 1881.

The particular facts which it was sought by these questions to elicit, and the professed purpose of the cross-examination, were collateral and irrelevant to the principal matter in dispute.Whatever the answers of the witness might have been, they would not have helped to prove or disprove the alleged cause of action.The evidence sought might have tended to impair the credibility of the witness, and to do this was the purpose of the questioner.

In weighing the testimony of a witness, the jury may consider his interest, but we see no reason why a party should otherwise stand upon a different footing from other witnesses as to the modes of attacking his credibility.

The limits of cross-examination, for the purpose of impeaching the credit of witnesses, have not been in all respects clearly defined and uniformly established.Much contrariety is attributable to the great latitude allowable in this regard, in some instances, in the exercise of discretion by the trial court.A witness can not, on cross-examination, be interrogated as to a particular fact which is collateral and irrelevant, merely for the purpose of contradicting him by other evidence, and of thereby discrediting his testimony.If such a question is put to a witness and answered, his answer is conclusive, and he can not be contradicted.1 Greenl. Ev., sections 448, 449.

In Bersch v. State,13 Ind. 434, on the trial of an indictment against Bersch for passing counterfeit money, the principal witness for the prosecution was one Deckhard.On cross-examination, the defendant proposed to ask this witness if he had not passed a counterfeit bill as a genuine one in Louisville, and what he had sworn about it on a former occasion.The trial court held the question inadmissible.On appeal, this court said that if the defendant's object was to lay the foundation for the contradiction of the witness, such contradiction would be a violation of the rule that it must be as to matter relevant to the issue, and that if the defendant relied upon the answer to impeach the character of the witness, he was attempting to violate the rule that evidence for that purpose should not go to particular acts, but to general character.But it was said that perhaps the court might, in its discretion, have let the question go to the witness under proper advice, and that there was no error in the ruling.

In an action by a father for the seduction of his daughter, her character for chastity is involved in the question of damages, and proof of her particular acts of sexual immorality has been held admissible.

It has been held by this court that in such a case the principal female witness could not, over objections made by counsel, be asked, on cross-examination, whether she had not previously been criminal with other men.It was said that in her character as a witness she stands as any other witness in the case(Shattuck v. Myers,13 Ind. 46), and that in that character she may be impeached only "in the usual mode, through general questions."Long v. Morrison,14 Ind. 595.

In Wilson v. State,16 Ind. 392, which was a prosecution for rape, in speaking of a proposal of the defendant to prove that the prosecutrix was a keeper of a house of prostitution, and that she had with knowledge received a portion of the price of illicit intercourse of a certain man with another woman kept in said house, the proposition being to make the proof by the evidence of another witness, it was said that the evidence could only be offered to show that there was not the utmost reluctance and resistance, and that "The evidence of a particular act of immorality is not admissible to impeach a witness, or affect his general character," and Shattuck v. Myers, supra,andLong v. Morrison, supra, were cited.

In Shattuck v. Myers, supra, the question by which it was sought to elicit evidence of particular immoral acts was asked on cross-examination of the principal female witness in an action for seduction, and the evidence sought related to previous acts of criminal sexual intercourse of the witness with other men than the defendant.In Long v. Morrison, supra, it was not stated how the attempt to prove the particular immoral act of the witness was made, though it would seem, from the language used, to have been made by questioning another witness, and the nature of the particular act of immorality is not stated.

In Smith v. Yaryan,69 Ind. 445(35 Am. R. 232), an action by a female for her own seduction, it was held that, as in a bastardy case it is competent to ask the prosecuting witness, on cross-examination, whether she had had sexual intercourse with any person other than the defendant about the time the child was begotten, so, where a child was born as the result of the seduction, as this fact would be a proper element to be considered in assessing the damages for the seduction, the question whether the defendant was the father of the child could be tested in the same manner, by cross-examination of the plaintiff, over the objection of her counsel.

It seems that it would be sufficient reason for sustaining an objection to such a question as was proposed in Shattuck v. Myers, supra,if it were irrelevant to the issue, that though the answer thereto might disgrace the witness in another respect, it would not affect the credibility of the witness.1 Greenl Ev., sec. 458.The relations between the sexes, it is sometimes said, have no direct bearing on the probability of the witness telling the truth.Whart.Ev., section 542,...