Rhodes v. Harwood

• Decision Date: 26 December 1975
• Citation: 544 P.2d 147,273 Or. 903
• Parties: Dennis Lyle RHODES, Respondent, v. Geneva HARWOOD, Appellant. Kathleen Jo RHODES, Respondent, v. Geneva HARWOOD, Appellant.
• Court: Oregon Supreme Court

Page 147

544 P.2d 147

273 Or. 903

Dennis Lyle RHODES, Respondent, v. Geneva HARWOOD, Appellant.

Kathleen Jo RHODES, Respondent, v. Geneva HARWOOD, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted Oct. 31, 1975.

Decided Dec. 26, 1975.

Edward H. Warren, Portland, argued the cause for appellant. With him on the briefs were Hershiser, Mitchell & Warren, Portland; Darst B. Atherly, of Thwing, Atherly & Butler, Eugene, and Larry J. Anderson, of Anderson & Richmond, Eugene.

Bruce E. Smith, Eugene, argued the cause for respondents. With him on the brief were Young, Horn, Cass & Scott, Eugene.

TONGUE, Justice.

These are consolidated actions for personal injuries sustained by plaintiffs as the result of an alleged assault and battery and also for damages from an alleged trespass. ¹ Defendant appeals from an adverse judgment based upon a jury verdict awarding $5,000 general damages and $5,000 punitive damages to each of the two plaintiffs, in addition to special damages in the sum of $123.75 and $25, respectively, for assault and battery, together with the sum of $1 general damages and $1,500 punitive damages for trespass.

Defendant assigns as error the overruling of her objection to evidence offered by plaintiffs to show that defendant's son, who had been called by plaintiffs as a witness, made a prior inconsistent statement which was received both for the purpose of impeachment and also as substantive evidence. Defendant also assigns as error the failure of the trial court to set aside the award of $1,500 as punitive damages in the cause of action for trespass in each case in view of the award of only $1 as general damage for trespass in each case.

The facts.

The facts need not be stated in detail. There was a direct conflict in the testimony of plaintiffs and that of defendant and her husband relating to the events of the alleged assault and battery and the alleged trespass.

Plaintiffs were tenants in a small house owned by defendant and her husband. They testified that defendant became angry because one of them had climbed on the roof of the house to straighten the TV antenna and came to the house with a pistol, which she pointed at both plaintiffs and shot into the house, and that she also struck both of them--one with the pistol, causing it to fire.

Defendant not only denied the assault and battery and the trespass, but testified that she did not see the plaintiffs on that day and had never owned or fired a pistol.

According to plaintiffs' testimony no third persons were present or witnessed the incident, but bullets were found in the woodwork of the house.

In plaintiffs' rebuttal case they called as a witness Lorren Harwood, one of defendant's adult sons, who testified that he did not become 'aware' of the 'alleged incident' until 'probably two weeks later.' He was then asked:

'Q Did you ever have any knowledge that your mother gave a gun or caused a gun to be given to your brother, Michael Harwood?

'A No, sir.

'* * *

'Q BY MR. SMITH: Did you ever tell anyone else that your mother tried to hurt some hippies and give a gun to Mickey or Michael, your brother, to hide?

'A No, sir.

'Q Do you know a Melvin Zoller, Junior?

'A Yes, sir.

'Q Now, a couple weeks after October 3, 1972, were you employed and working in the same plant with Melvin Zoller, Junior?

'A. I was working in the same area but not employed by the same person; no, sir.

'* * *

'Q At that time, approximately two weeks after this incident, did you tell Melvin Zoller that your mother tried to hurt some hippies and gave the gun to your brother, Mickey?

'A No, sir.'

Plaintiffs then called Melvin Zoller, Jr., as a witness and, over objection by defendant, offered both 'for impeachment' and 'as substantive proof' the following testimony:

'Q BY MR. SMITH: What did Mr. Lorren Harwood tell you at that time, Mr. Zoller?

'A Well, that his mother had gotten involved in a shooting incident with some hippies that lived on their property. And it as kind of a mill story going around and so I asked him about it because I worked with him and he said that his mother had gotten crazy and took a shot at somebody and that they had probably gotten rid of the gun through Mickey.'

Contentions by parties.

In support of her first assignment of error defendant contends: (1) that this testimony by Mr. Zoller was improperly received for purposes of impeachment because a party cannot impeach his own witness by proof of a prior inconsistent statement unless the testimony of the witness to be impeached was prejudicial or damaging to the party calling that witness, and (2) that such testimony was not admissible as substantive evidence because it was hearsay.

Plaintiffs respend by contending: (1) that under ORS 45.590 a party may impeach his own witness by proof of a prior inconsistent statement whether or not the testimony of that witness was prejudicial or damaging to him; that the requirement of prejudice or damage has 'probably been disregarded more than it has been followed' by this court ² and is criticized by modern authorities; ³ and that, in any event, the testimony of defendant's son 'that he did not have any knowledge or information that his mother had been involved, nor any knowledge that his mother gave the gun to his brother Michael' was prejudicial or damaging to the plaintiffs' case; and (2) the testimony of Mr. Zoller was admissible as substantive evidence because defendant's son was available in court and that under such circumstances modern authorities would hold that a prior inconsistent statement is admissible as substantive evidence. ⁴

1. The prior inconsistent statement by plaintiffs' witness in this case was not admissible for impeachment because his previous testimony was not prejudicial to plaintiff.

ORS 45.590, ⁵ as originally adopted in 1862, ⁶ has been interpreted by this court in many cases as permitting the impeachment by a party of his own witness by proof of a prior inconsistent statement only when the testimony of the witness has been prejudicial or damaging to the party calling him. ⁷ Cases in which such testimony has been held admissible, including those cited by defendant as holding to the contrary, are distinguishable on their facts in that in most, if not all, of such cases the witness had given testimony which was prejudicial or damaging to the party calling him. ⁸

Decisions by the Oregon Court of Appeals are more equivocal. In State v. Gardner, 2 Or.App. 265, 467 P.2d 125 (1970), rev. den., cert. den., Wade v. Oregon, 406 U.S. 972, 92 S.Ct. 2418, 32 L.Ed.2d 673 (1972), the owner of a tavern which had been robbed, when called as a witness for the state, testified that he did not know how much money was found by him in the pockets of the defendant. The state was then permitted to offer in evidence a prior statement to the effect that he had then found 'eighty some dollars in his pocket.' The Court of Appeals recognized the requirement of prejudice, citing State v. Merlo, supra, and held (at 267--68, 467 P.2d at 126) that the testimony of the witness was prejudicial in the sense that it would indicate that he 'had so little concern about it as to raise a question in the minds of the jury whether it was, in fact, his money.' The reasons for the rule requiring that the testimony of a witness must itself be prejudicial or damaging to the party calling him before he may properly impeach that witness by proof of a prior inconsistent statement, as stated by this court in Langford v. Jones, 18 Or. 307, 327, 22 P. 1064, 1071 (1890), the first case in which it considered this question, are as follows:

'* * * To allow a party, after calling him as a witness and failing to elicit from him any advantageous testimony, to prove that the witness at some other time and place had made statements favorable to the claim of the party, is a strange mode of securing proof. It would be a kind of evidence which I could not distinguish from hearsay. Counsel for appellant cited a number of authorities to show that such a course was not permissible; but I think that the bare statement of the proposition is a sufficient refutation of its correctness. If it were proper, a case could be made out many times by proof of what third persons had said; it would only be necessary to call the persons as witnesses and attempt to show by them the substance of the matter embraced in the statements, and having failed in that, then to prove what such persons had said at another time and place, when they were not under oath, and obtain the benefit of that as direct evidence of the fact. Such a construction would enable parties to employ as a sword what was intended as a shield. Instead of availing themselves of the benefits of the statutory rule in order to avoid the effect of damaging testimony given against them by a witness called to prove a fact in their favor, they could make use of it for the direct purpose of establishing the fact. It is enough to say that the legislature never intended by said provision of the Code to adopt any such absurdity.'

To the same effect, see State v. Steeves, 29 Or. 85, 103--05, 43 P. 947 (1896); and State v. Merlo, 92 Or. 678, 173 P. 317 (1919).

In State v. Merlo, supra, in an exhaustive opinion by Justice Harris, discussing this question in detail, it was held (at 699, 182 P. at 157) that in order to constitute prejudice so as to entitle a party to offer in evidence a prior inconsistent statement by a witness called by him, the witness must have given testimony 'which relates to a material matter and is prejudicial to the party calling him' and that it is not sufficient that the witness 'fails to testify as strongly as was expected, or gives testimony which is favorable to neither party.' In that case it appears (at 695, 182 P. 153) that the state's witness had said 'I don't know' when asked by the state's attorney who started a quarrel which resulted in a murder.

This is in accord with a previous decision by ...