McGovern v. Smith

• Decision Date: 18 November 1902
• Citation: 53 A. 326,75 Vt. 104
• Parties: McGOVERN v. SMITH et al.
• Court: Vermont Supreme Court

53 A. 326

75 Vt. 104

McGOVERN

v. SMITH et al.

Supreme Court of Vermont. Washington.

Nov. 18, 1902.

Exceptions from Washington county court; Munson, Judge.

Action by D. S. McGovern against Hayes and Smith, receivers. From a Judgment for plaintiff, he brings exceptions. Affirmed.

Argued before ROWELL, G. J., and TYLER, START, WATSON, STAFFORD, and HASELTON, JJ.

Gordon & Jackson and F. L. Laird, for plaintiff.

C. W. Witters, for defendants.

HASELTON, J. This was an action on the case to recover for injuries sustained by the plaintiff at a crossing of a railroad managed by the defendants. A trial by jury was had, and a verdict was returned for the plaintiff to recover the sum of $4,250 as damages. Judgment was rendered on the verdict. The case was heard in this court on a bill of exceptions allowed to the plaintiff. January 27, 1897, the plaintiff was going over the crossing in question, which was in Bolton, when he was run upon by a locomotive and train of cars. The plaintiff's evidence tended to show that his injuries were very severe, and that they were solely due to the negligence of the defendants.

The plaintiff improved as a witness Dr. Charles Chandler, who saw the plaintiff two or three times within a week after the time of the accident, and offered to show by this witness that when he so saw the plaintiff it was his opinion as a physician that the plaintiff had very little chance of recovery, and asked the witness the following question: "From the examination which you made on that first day, —all you could see and learn about the man, —what was your opinion as a physician as to the probability of his living,—his recovery at all?" The defendants objected, the court excluded the question, and the plaintiff excepted. In this there was no error. The physician's opinion at the time of the trial was all the opinion evidence which he could properly give on direct examination. In support of his exception the plaintiff cites Turnpike Co. v. Cassell, 66 Md. 419, 7 Atl. 805, 59 Am. Rep: 175. But that case does not sustain the plaintiff's contention. The second, third, and fourth exceptions were to rulings permitting cross-examination of the same witness as follows: "Q. Now, doctor, Isn't it true that a large number of men have adhesions of the pleura to the lung? What do you say, doctor? A. Yes, there are a large number of people who have adhesion of the pleura to the chest. Q. And isn't it true that a large number of men have adhesions as marked as Mr. McGovern's adhesion, who do physical labor to a large extent? A. Yes. 'q. Is it not true that when they have got such depression—or whatever yon call it—as he has got, by reason of adhesion drawing in the chest, that men of his age do a great deal of work—physical work?" The witness was permitted to answer this last question also, but it does not appear what the answer was. There is nothing in the record to show what the doctor's testimony about adhesions, given on direct examination, had been, and so there is really nothing upon which to predicate a claim of error in permitting the cross-examination above set out Assuming, however, that the doctor had testified that the plaintiff had the indicated adhesion, and that the testimony tended to show that it resulted from the injury complained of, the cross-examination above set out was proper. The second and third questions bore upon the probable impairment of strength and ability to labor resulting from the adhesion, and the first of the three inquiries was fairly preliminary to the others.

The plaintiff was a witness, and, for the purpose of discrediting him as such, the defendants asked him if he had been convicted of selling intoxicating liquor, and confined in the house of correction therefor, and elicited affirmative answers. The testimony was received under objection and exception, and the fifth and sixth exceptions relate to its admissibility. The offense of selling intoxicating liquor does not, in legal sense, involve moral turpitude. It ranks, rather, with breaches of the peace by assaults and otherwise. This being so, the plaintiff contends that the evidence was not admissible, and relies upon V. S. 1245, which reads: "No person shall be incompetent as a witness in any court, matter or proceedings, by reason of his conviction of a crime other than perjury, subornation of perjury, or endeavoring to incite or procure another to commit the crime of perjury; but the conviction of a crime involving moral turpitude may be given in evidence to affect the credibility of a witness." This statute was enacted to remove a common-law disability or incompetency, and at the same time it makes it a matter of legal right to attack the credibility of a witness by showing by independent evidence that he has been convicted of a crime involving moral turpitude. But this statute does not limit the field of cross-examination which, in the sound discretion of the court counsel may be allowed to go into with a view to shaking the credit of a witness. In State V. Shaw, 73 Vt. 149, 50 Atl. 863, the respondent, when on the stand as a witness in his own behalf, was asked if, on a day named, he had not pleaded guilty to an assault, and answered that he had. The evidence was held admissible as tending to affect his credibility. It was held in that case that the mode of proof was not in question; and the same might be held here if the court regarded only the line of argument in the plaintiff's brief. But we think that if the trial court, in its discretion, permits the conviction and imprisonment of a witness for an offense not involving moral turpitude to be gone into, the permission accorded should be exercised by way of cross-examination, and we are not prepared to say that the examiner inquiring about offense of such grade is not bound by the answers of the witness. In McLaughlin v. Mencke, 80 Md. 83, 30 Atl. 603, it was held not error to permit counsel, on cross-examination of a witness for the purpose of discrediting him, to show that he had been convicted of drunkenness and confined in jail. As to the mode of proof the court say: "While there is some conflict in the authorities and textbooks, as well as reported cases, upon this subject, we think the more reasonable and practicable rule is that which does not demand the production of the record when the object, as here, is solely for the purpose of discrediting." In Clemens v. Conrad, 19 Mich. 174, the court, speaking by Cooley, C. J., say: "We think the reasons for requiring record evidence of conviction have very little application to a case where the party convicted is himself upon the stand, and is questioned concerning it, with a view to sifting his character upon cross-examination." See, also, Wilbur v. Flood, 16 Mich. 40, 93 Am. Dec. 203, and People v. Cummins, 47 Mich. 334, 11 N. W. 184, 186. In Whart. Cr. Ev. § 474, it is said: "In this country there has been some hesitation in permitting a question, the answer to which not merely imputes disgrace, but touches on matters of record; but the tendency now is, if the question be given for the purpose of honestly...