Georgie Shores v. Charles E. Simanton

• Decision Date: 07 October 1925
• Citation: 130 A. 697,99 Vt. 191
• Parties: GEORGIE SHORES v. CHARLES E. SIMANTON
• Court: Vermont Supreme Court

130 A. 697

99 Vt. 191

GEORGIE SHORES v. CHARLES E. SIMANTON

Supreme Court of Vermont

October 7, 1925

October 7, 1925

ACTION OF CONTRACT.Plea, general denial, and declaration in set-off.Trial by jury at the June Term, 1924, Caledonia County, Chase, J., presiding.Verdict and judgment for plaintiff.The defendant excepted.The opinion states the case.

Judgment affirmed.

Shields & Conant for the defendant.

Searles & Graves for the plaintiff.

Present POWERS, TAYLOR, SLACK, and BUTLER, JJ., and GRAHAM, Supr.J.

OPINION

BUTLER

The plaintiff seeks to recover the purchase price of a certain steam power automobile, which he claims to have sold to defendant at an agreed price.The defendant, who is engaged in the business of repairing and dealing in automobiles at St. Johnsbury, denied that he purchased the machine, but claimed that he took it for repairs with the understanding that he was to repair and sell it for the plaintiff.This was the principal issue in the case.Verdict and judgment for plaintiff.Defendant excepts.

The defendant was improved as a witness in his own behalf and on direct examination testified, among other things: "Q.At some time were you in business different from what you are now?A.Yes.Q.What was that business?A.Watches and jewelry business.Q.How long were you in that line?A.Fifteen years.Q.Since that time what was your occupation?A.I have been dealing in automobiles.Q.What kind usually?A. Stanley's.Q.How long have you had to do with the Stanley Steamer car?A.Well, twenty years."

During the cross-examination by plaintiff, he was asked: "Q.The jewelry business and watch business and the automobile business hasn't been the extent of your business activities, has it?" to which he answered: "To a large extent."He was then asked: "You, for quite a large number of years at least, had scattered about the State of Vermont, particularly the northeastern part, Klondyke machines, didn't you?"This was objected to and excluded.

Thereupon plaintiff's counsel stated to the court in the presence of the jury as follows: "I offer to show, although this is cross-examination, it was opened up by them, and I expect the purpose, if the court please, about their asking him about his business affairs was to show that he was a reputable business man.Now, my purpose in asking these questions is to show just the contrary, if the court please that he, in fact, had stationed all about the State these gambling machines, contrary to law, and that they were seized and destroyed, and that he was arrested at different times for it."

The defendant excepted to the offer on the ground that the question before the court had already been ruled upon and excluded, and to the statement before the jury as being improper and misleading.

As briefed and argued, this and the following exception are treated together but they are not alike and must be considered separately.The grounds of this exception are: (a) To the offer of evidence after the question had already been ruled upon and excluded, and (b) to the statement before the jury as improper and misleading.To be sure, in some circumstances it is reversible error to persist in offering evidence that has been once excluded for the reason that the ruling of the court is the law of the trial (State v. Felch, 92 Vt. 477, 105 A. 23), and orderly procedure and good practice requires it to be so.And an offer in cross-examination is unnecessary to save an exception to the ruling excluding the question when one is taken.Knapp v. Wing, 72 Vt. 334, 47 A 1075.

Nor is it necessary in cross-examination for the plaintiff to disclose the purpose of the question.Cowles v. Cowles' Estate, 81 Vt. 498, 71 A. 191.But it is not necessarily error to do so.This rule does not preclude counsel from urging a reconsideration of the ruling where error, either by mistake or failure to grasp the situation, is apparent or confidently believed to have occurred, or the making of proper explanation when permitted by the court, and properly dealt with.In re Alonzo Martin's Estate, 92 Vt. 362, 104 A. 100.A fair opportunity should be given the court to enable it to rule correctly ( Capital Garage Co. v. Powell, 98 Vt. 303, 127 A. 375), and this is so as well in cross as in direct examination.

It is argued that the statement before the jury was improper and misleading by permitting counsel to offer incompetent, immaterial, and scandalous testimony, knowing it to be such, for the purpose of prejudicing the jury.If such was the character and purpose of the offer, it was error to permit it to stand unrebuked.Rudd v. Rounds, 64 Vt. 432, 25 A. 438;Niebyski v. Welcome, 93 Vt. 418, 108 A. 341.

But this exception raises no such question, for it failed to point out with sufficient particularity the objectionable statement or the grounds then or now relied upon.Cross-examination on the subject of the offer, might, in the discretion of the court, properly have been permitted.The offer was to show that the defendant was not a reputable business man, by showing what his previous occupation had been in order to meet the testimony already adduced by the defendant.

The defendant had tendered the issue and introduced testimony from which it might be argued that he was a reputable business man and had been engaged in reputable business for a long period of years at St. Johnsbury, as bearing upon the weight that the jury might give his testimony.The plaintiff answered by offering to show the contrary by cross-examination of defendant himself.Manifestly thus far the plaintiff had the right to go.That he had been engaged in business other than that he had testified to was a proper matter of inquiry.Questions relating to the previous business and occupation of witness are proper, especially so of a party when in reply to testimony as to previous vocation, first adduced by him.Jones on Ev., § § 832, 834.

The admissions of a party, bearing upon his character and moral standing essential to the estimate of his testimony by the jury, are not improper, and the scope and extent of the cross-examination are largely matters in the discretion of the trial court.State v. Fournier, 68 Vt. 262, 35 A. 178;Titus v. Gage, 70 Vt. 13, 39 A. 246;State v. Felch, supra.Great latitude is often allowed in cross-examination, especially of a party who testifies in his own behalf, in testing the weight to be given to it.State v. Slack, 69 Vt. 486, 38 A. 311;Luiz v. Falvey, 228 Mass. 253, 117 N.E. 308;People v. White, 251 Ill. 67, 95 N.E. 1036.

Neither the want of good faith, nor the particular part of the offer as made, were pointed out in the exception taken.Nor were they specifically called to the attention of the court.The only portion of the offer that can be said to be objectionable, bad faith of the examiner not appearing, is that the gambling machines were seized and destroyed and the defendant arrested at different times, and this very likely would have been properly dealt with by the court had its attention been specifically directed thereto.

No claim of want of good faith was made, so far as the record shows, nor was the reason why it was regarded as improper, and so misleading, pointed out.In these circumstances, we cannot say that reversible error affirmatively appears.Hambleton v. U. Aja Granite Co., 96 Vt. 199, 118 A. 878;Drown v. Oderkirk, 89 Vt. 484, 96 A. 11.

Later in the course of the trial, the plaintiff having testified in substance, that, when the defendant took the car from Granby the man who was with him asked the defendant how he should get the car into St. Johnsbury without a license on it, without number plates, the car was not registered--if the officer should come out and stop him.That the defendant, speaking disparagingly of the officer of the law told the man it was up to him to run it down the back way and put it in the garage.The defendant, testifying, as a witness in his own behalf, in substance, denied what the plaintiff had testified to, but testified...