Cooper v. Hopkins

• Decision Date: 27 July 1900
• Citation: 70 N.H. 271,48 A. 100
• Parties: COOPER v. HOPKINS et al.
• Court: New Hampshire Supreme Court

48 A. 100

70 N.H. 271

COOPER

v. HOPKINS et al.

Supreme Court of New Hampshire. Rockingham.

July 27, 1900.

Exceptions from Rockingham county. Action by Anna R. Cooper against Henry C. Hopkins and another. Judgment for plaintiff. Defendants except. Verdict set aside.

The defendant Moore was manager of a dry-goods store owned by the defendant Hopkins. The plaintiff's evidence was that, while she was in the store, Moore touched her upon the shoulder and requested her to go into another room; and, she not complying, he accused her of larceny, seized her, pushed her, and searched her shopping hag, all in the presence of customers and clerks. The plaintiff's innocence was admitted. The testimony, on direct examination, of a clerk called by the defendants, tended to show that no assault was committed. This witness was asked on cross-examination "If two customers did not ask her three times to wait on them before she attended to them, because she was intently watching what took place," and if at the conclusion of the trouble she did not say, "1 am glad he [Moore] has got left this time. He has done this same thing before." She answered both questions in the negative. The plaintiff introduced the testimony of the two customers in contradiction of the witness. There was no evidence that the plaintiff suffered any physical injury. The defendants excepted to the refusal of the following instruction: "If the jury find that no injury was done to the plaintiff's person by the assault, and she was not put in fear of injury, she cannot recover for alleged injuries to her mind or feelings, or for fanciful injuries."

Thomas H. Simes and Samuel W. Emery, for plaintiff.

Page & Bartlett, for defendants.

CHASE, J. The verdict cannot be disturbed on account of the ruling allowing the plaintiff to introduce testimony contradicting the answer of the defendants' witness to the first of the two questions mentioned in the case. Her testimony on direct examination tended to show that no assault was committed. As described by her, the affair was not such as would be likely to attract much attention or cause excitement in the bystanders. If her attention was so absorbed by it that she neglected to attend to the repeated calls of customers, the fact would be inconsistent with her testimony. It would have a tendency, more or less weighty, to contradict her in relation to the main issue in the case, and so to discredit her.

The matters brought out by the second question were of a different character. Undoubtedly the plaintiff was at liberty to show that the witness was excited by the occurrence. This fact, besides having a tendency to contradict the witness on a material matter, might show that she was not in a proper frame of mind to correctly observe what took place. But the witness' state of excitement was referred to only incidentally. The principal matters sought for were the two statements made by the witness at the conclusion of the trouble,—one an expression of gladness because Moore had got left, and the other an assertion that he had done the same thing before. If the Joy of the witness tended to show bias, it was bias against Moore, and would naturally add weight to the testimony given in his behalf. It is reasonably certain that this was not the plaintiff's object. If the defendants could introduce the testimony for such purpose, it was for them to determine whether they would do so, and take the risk of having incompetent prejudicial testimony accompany it. The plaintiff certainly Icould not force incompetent testimony upon the defendants simply because it happened to have a connection with competent testimony that was beneficial to them. If she saw fit to show that the witness was prejudiced against the defendants, she would be limited to the use of competent testimony for the purpose. But, whatever may be said of the expression of joy, no ground has been found upon which the assertion of the witness that Moore had done the same thing before can be regarded as competent. It was not directly or indirectly inconsistent with her previous testimony. It had no tendency to show state of feeling, bias, corruption, source of knowledge, or interest in the subject-matter of the action. 1 Greenl. Ev. (16th Ed.) § 4 Gle; Titus v. Ash, 24 N. H. 319, 331; Martin v. Farnham, 25 N. H. 105. It had no tendency to characterize or elucidate the conduct of the witness at the time. Plumer v. French, 22 N. H. 450,454,455; Morrill v. Foster, 32 N. H. 358. It was not a spontaneous declaration of the circumstances as observed by her. 1 Greenl. Ev. (16th Ed.) § 162f. It was not a part of the transaction itself, but was made at its conclusion, and, so far as appears, in the absence of the parties, when neither of them could have been influenced by it. Hartnett v. McMahan, 168 Mass. 3, 46 N. E. 392. It was hearsay evidence as to the fact asserted. If the fact had been relevant and material,— as it was not,—the proper inquiry of the witness would be, "What do you now say about it?" not "What did you say at" a former time, when not under oath? Combs v. Winchester, 39 N. H. 13, 16, 17. "It would be a dangerous rule which would admit such historical statements because they happened to be detailed when some transaction material to be proved was occurring." Wiggin v. Plumer, 31 N. H. 251, 268. In short, the matter was not relevant to the main issue nor to any collateral issue in the ease, and the form of proving it was also incompetent it was "positively improper to be proved at all," and clearly falls within the class of testimony that cannot be contradicted. In Seavy v. Dearborn, 19 N. H. 351, 355, 356, the law on this subject is stated as follows: "In the cross-examination of witnesses, a great deal of latitude is allowed for the purpose of testing the memory, the capacity, or the honesty of the person under examination, and for that purpose inquiries may be pushed even to matters not positively material to the issue. But this license has various restrictions. In the first place, it does not extend so far as to authorize a party to prove, by a witness on cross-examination, things positively improper to be proved at all; and, secondly, he cannot, for the purpose of discrediting a witness, contradict by other evidence his statements that are improper or immaterial. In other words, he may, for the purpose before indicated, ask questions not strictly relevant to the issue, provided they do not tend to elicit testimony that is injurious or improper. But, when a question of either kind has been put and answered, the party cannot introduce other evidence to contradict the witness, whether for the purpose of discrediting him or for any other purpose. It is a very plain corollary to that rule that a question not otherwise material or proper does not become so by force of any purpose of the examining party to make use of it to discredit the witness by contradicting his answers to it" This extract was quoted with approval in Combs v. Winchester, 39 N. H. 13. The following authorities are to the same effect: Boyce v. Railroad Co., 42 N. H. 97; Dewey v. Williams, 43 N. H. 384; Sumner v. Crawford, 45 N. H. 416; Willard v. Sullivan, 69 N. H. 491, 45 Atl. 400. Indeed, it is an elementary rule of the law of evidence. 1 Greenl. Ev. (16th Ed.) § 461e; Best, Ev. § 644, and notes.

It is said that the court had discretionary authority to allow the witness to be contradicted on this point for the sole purpose of discrediting her, although the point was immaterial and injurious to the defendants. This raises the question whether the authorities before cited have been overruled to this extent by later decisions. Willard v. Sullivan certainly has not been overruled, as it is the latest decision in which the subject was considered. There is no case in which the other authorities have been expressly overruled or their soundness has been questioned. Is there any case having that effect? Martin v. Farnham, 25 N. H. 195, is cited by the plaintiff in support of her proposition. It was there held that evidence showing that a witness had made statements inconsistent with his testimony in regard to material mat ters is admissible to affect his credit, and that the state of feeling of a witness towards one of the parties is a material matter. This, instead of being in conflict with Seavy v. Dearborn, is in line with it. In Nute v. Nute, 41 N. H. 60, one issue was whether certain deeds had been placed in the possession of a third person as a delivery to the grantee. The defendant contended that by the arrangement between the grantor and grantee the latter was to give the former a bond or lease, and that one was drawn and placed in the hands of a third person, D., when the deeds were given to him, but that the papers were not delivered because of the failure of the grantee to perform his agreement. D. was a witness, and testified that the grantor placed in his hands certain papers, among which were the deeds; that he did not remember that a bond or lease was among them; and that he thought he did not testify it was at a former trial. The court say: "Whether the bond or lease was deposited at the same time or not was a circumstance bearing upon and qualifying the character of the act as much as a verbal declaration made at the time, and part of the res gestæ" Accordingly it was held that.

D.'s testimony at the former trial "would properly tend to impeach his credit and diminish the weight of his testimony as to the circumstances Connected with the deposit of the deeds," and was admissible. The fact to which the contradictory testimony related was relevant to the issue. Martin v. Towle, 59 N. H. 31, was case against a common carrier of passengers for an injury sustained by the overturning of a carriage driven by the defendant's servant, E. He was called as a witness by the defendant, and testified upon cross-examination that he did not remember that he told the plaintiff, in an...