Helser v. McGrath

• Decision Date: 25 June 1866
• Citation: 52 Pa. 531
• Parties: Helser <I>versus</I> McGrath.
• Court: Pennsylvania Supreme Court

Page 531

52 Pa. 531

Helser versus McGrath.

Supreme Court of Pennsylvania.

June 25, 1866.

ERROR to the Court of Common Pleas of Franklin county.

J. McD. Sharpe, for plaintiff in error, as to the admission of the evidence, cited Ellmaker v. Buckley, 16 S. & R. 72; Mackinley v. McGregor, 3 Whart. 370; Castor v. Bavington, 2 W. & S. 505; Floyd v. Bovard, 6 Id. 75; Mitchell v. Welch, 5 Harris 340; Tiley v. Moyers, 7 Wright 405; 1 Greenl. Ev. §§ 445-447; 1 Stark. Ev. 164; Philadelphia and Trenton Railroad Co. v. Stimpson, 14 Pet. 448, 461; Breinig v. Meitzler, 11 Harris 157; Turner v. Reynolds, Id. 199.

The judge treated the declarations of the plaintiff as an estoppel. To make an estoppel in pais, three ingredients must appear affirmatively: misrepresentation or wilful silence by one having knowledge of the fact; that the actor having no means of information, was, by the conduct of the other, induced to do what otherwise he would not have done, and that injury would ensue from a permission to allege the truth: Commonwealth v. Moltz, 10 Barr 531 and 532; Stephens v. Baird, 9 Cow. 274; Derry v. Field, 5 Metc. 381; Congregation v. Williams, 9 Wend. 147; Pickard v. Sears, 6 A. & E. 469; Gregg v. Wells, 2 P. & D. 296; Dosell v. Odell, 3 Hill 291; Martin v. Ives, 17 S. & R. 366; Lewis v. Carstairs, 5 W. & S. 209; Brubaker v. Okeson, 12 Casey 519; Hill v. Epley, 7 Id. 331; Bitting's Appeal, 5 Harris 211; Woods v. Wilson, 1 Wright 379; Miranville v. Silverthorn, 12 Id. 149.

But if the judge did not mean to charge that this was an estoppel, he should not have given a binding instruction: Newman v. Edwards, 10 Casey 32; Nieman v. Ward, 1 W. & S. 82; Parker v. Donaldson, 6 Id. 137; Com. v. Henderson, 1 P. R. 401; Strohl v. Levan, 3 Wright 177; Sandford v. Decamp, 8 Watts 542; Payne v. Craft, 7 W. & S. 462; Heaton v. Findlay, 2 Jones 304; Paull v. Mackey, 3 Watts 110; Harlan v. Harlan, 8 Harris 303; Thomas v. Snyder, 11 Id. 515; Ream v. Harnish, 9 Wright 376.

The paper-books did not show the counsel for the defendant in error.

The opinion of the court was delivered, June 25th 1866, by THOMPSON, J.

The order of examination and cross-examination of witnesses is so much a matter within the discretion of the judge trying the cause that we seldom reverse on an exception to it, yet it is very important that the latitude should not extend to give an undue advantage to one party over the other in the trial. The cross-examination, as a general thing, is only regular when it is confined to the testimony given by the witness in chief: 11 Harris 199. In Breinig v. Metzler, same book, page 157, it was said that a defendant cannot introduce his defence by cross-examining a witness of the plaintiff to matters not before testified to. This, I understand, has always been the rule. These rules, as well as all others on the order of examination of witnesses and the introduction of testimony, have for their object the eliciting of truth and the preservation of the equality of the rights of parties in trials in courts. Much, however, must still be left to the discretion of the judge. Neither the rule nor the exception must be allowed, if it can be prevented, unduly to prejudice the parties. The exercise of a prudent discretion by the judge is the only guard against this in many cases. Although we will not reverse in this case for an excess of latitude in the cross-examination, because we do not discover the injury from it, yet we think it was very great and beyond the limits of the authorities generally. Doubtless the learned judge thought he saw the propriety of allowing it, and we cannot say he was wrong, for we have not his means of judging. It being a case involving some questions of fraud, although nothing of that had appeared in the plaintiff's testimony at the time of the cross-examination of the witness Myers, he adopted the doctrine, no doubt, that great latitude of testimony...