Gillett v. Lydon, 31899

• Decision Date: 04 August 1952
• Docket Number: No. 31899,31899
• Citation: 40 Wn.2d 915,246 P.2d 1104
• Court: Washington Supreme Court
• Parties: GILLETT, v. LYDON.

Page 915

40 Wn.2d 915

246 P.2d 1104

GILLETT, v. LYDON.

No. 31899.

Supreme Court of Washington, en Banc.

Aug. 4, 1952.

Rehearing Denied Oct. 1, 1952.

Christ D. Lillions, Seattle, for appellant.

Kahin, Carmody & Horswill, Burton C. Waldo, Seattle, for respondent.

OLSON, Justice.

This appeal is from a judgment, entered upon the verdict of a jury, for the recovery of fees for treatments for cancer paid by plaintiff to defendant, a sanipractor and drugless healer. The cause was submitted to the jury solely upon issues pertaining to his alleged agreement to cure plaintiff.

Defendant was called as an adverse witness, and, during his examination by plaintiff's counsel, the following occurred:

'Q. Did you tell Mrs. Gillett that you would cure her carcinoma? A. I never told anyone in all my forty years of practice that I would cure them of any ailment. When they go out of my office, I don't know what they're liable to do or befall them, and I could not, in all honesty, make such a statement. Q. Did you tell Mrs. Jenny Nuihuis--I don't know how you pronounce it, N-U-I-H-U-I-S,--in 1932, that you would cure her cancer? A. Who?'

Defendant's objection that the question was an attempt to impeach the witness on a collateral issue was overruled, and the defendant answered in the negative. He was required to answer similar questions, over objection, regarding statements to a Mr. Wollan and a Mrs. Carney, which he did by saying that he did not remember Wollan and denying any such statement to Mrs Carney.

The rulings upon these objections were proper. The trial court has discretion in limiting the examination of a party litigant as an adverse witness. Wide latitude should be allowed in such examination. Miller v. Denman, 1908, 49 Wash. 217, 95 P. 67, 16 L.R.A.,N.S., 348. See 3 Wigmore on Evidence (3d ed.) 671, § 1006.

Plaintiff called Mr. Wollan's widow as a rebuttal witness. She was permitted to testify, over objection, that, during his treatment of Mr. Wollan for cancer in 1939, defendant had said many times, "You're not bad; I can cure you." In response to a question by his counsel, defendant later testified that he had no record in his office of the name of Wollan.

Defendant's objection presents the question of his attempted impeachment upon a collateral matter. It does not include consideration of the propriety of the foundation laid or whether or not the form of defendant's answer permits the attempted impeachment. A motion to strike the testimony of Mr. Wollan's widow was not made.

The answer from which the attempted contradiction or impeachment arises, was given in response to a proper question to defendant as an adverse witness. A party is not bound by and may contradict or rebut testimony given by an adverse witness. RCW 5.04.050, cf. Rem.Rev.Stat. § 1229; Rule of Pleading, Practice and Procedure 42, 34A Wash.2d 106; Williams v. Brockman, 1948, 30 Wash.2d 734, 740, 193 P.2d 863.

The answer given was not elicited by the question and was not responsive to it. Nor was it entirely irrelevant, at least defendant did not think it so. He must have thought there was some logical relationship between his statement and the question of his agreement with plaintiff which he sought to disprove. The voluntary enlargement of an answer to open the inquiry to matters possible collateral, does not bar the right of attempted contradiction or impeachment, whenever it appears to the trial court that permission for such further inquiry is necessary to remove a plain and unfair prejudice which might otherwise inure from the original evidence. See 1 Wigmore on Evidence (3d ed.) 309, § 15.

The control of a voluble and overanxious party as a witness is difficult at best for both the court and counsel. Sufficient latitude should be and is lodged with the trial court, in the exercise of its discretion under the rule which we have expressed, to permit the control of such a witness to prevent him from obtaining an unfair advantage, and yet to avoid confusion of issues or misleading of the jury. Also, defendant's statement being voluntary, there was no element of surprise so that he could claim he did not anticipate the inquiry and was not prepared to meet its contradiction. Nor was the time consumed by the offered contradictory evidence long. All of these and possibly other considerations of policy should be weighed by the court in exercising its discretion. In the case at bar,...