Rose Glass v. G. T. Bosworth

• Decision Date: 05 October 1943
• Citation: Rose Glass v. G. T. Bosworth, 34 A.2d 113, 113 Vt. 303 (Vt. 1943)
• Parties: ROSE GLASS v. G. T. BOSWORTH
• Court: Vermont Supreme Court

34 A.2d 113

113 Vt. 303

ROSE GLASS v. G. T. BOSWORTH

Supreme Court of Vermont

October 5, 1943

May Term, 1943.

Cross Examination of Witnesses as to Interest. Inquiry of Juryman as to Automobile Insurance.

1. In cross examination a party is entitled to find out the full interest of a witness who testifies against him, and all the circumstances calculated to create bias, prejudice or zeal on the part of such witness may be inquired into.

2. State v. Glynn, 51 Vt. 577, so far as it held that the unfriendliness of the witness for a party was so far collateral to the issue that inquiry as to detail would not be permitted, but only the general inquiry whether the witness is friendly or otherwise, overruled.

3. Large scope is allowed to cross examination, the extent of it in a given case being left largely to the discretion of the trial court; such discretion may be exercised to any extent that does not infringe the right itself.

4. An exception taken to the court's instruction without statement of the ground of objection is unavailing; a trial court is entitled to be informed of the fault found with its instruction so that it may have a fair opportunity to pass upon it and, if the objection appears to be well founded, to add to, or modify the charge.

5. The statement of a witness not directly contradicted is not always conclusive; such statements are not to be arbitrarily disregarded, but a trier may, on occasion, disbelieve them or some part of them and may accord to them a construction differing from their literal effect.

6. Since the enactment of No. 47 of the Acts of 1935, it is not permitted in an automobile negligence case to inquire of a juryman on the voir dire whether he is insured in a certain named mutual insurance company.

ACTION OF TORT based upon negligence in operation of automobile. Trial by jury, Franklin County Court, April Term, 1942. Cushing, J., presiding. Verdict and judgment for the defendant, and the plaintiff excepted.

Reversed and remanded.

Louis Lisman and Edward B. Reiter for the plaintiff.

M G. Leary and Bernard J. Leddy for the defendant.

Present MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS JJ.

OPINION

BUTTLES

This negligence action is based on a collision which occurred on Main Street in St. Albans on June 14, 1941, between an automobile in which the plaintiff was a passenger and a car driven by the defendant. The defendant had a verdict and judgment and the case is here on the plaintiff's exceptions. The accident happened at about two o'clock on a Saturday afternoon, at which time there was considerable traffic on Main Street as there was to be a parade in which the high school band was to participate and other exercise were to be held for the benefit of the league base ball team. The car operated by the defendant was the first in a line of three cars that were proceeding southerly on Main Street; the second car was a pick-up truck driven by a young man named Starr and the third was the Glass car in which the plaintiff was riding. The defendant's car came to a stop while in line but the plaintiff's car did not stop in time to avoid colliding with the Starr truck which in turn was driven against the defendant's car. The force of the collision was such, it is claimed, as to cause serious personal injuries to the plaintiff for which she seeks to recover. The defendant's evidence was to the effect that he signaled with his hand before stopping and that he was compelled to stop by the stopping of other cars ahead of his. The plaintiff's evidence tended to show that the defendant failed to signal, that there were no other cars immediately ahead of him and that he stopped because he was looking for a parking place.

The driver of the second vehicle, James Starr, as a witness for the defendant testified, in contradiction of the occupants of the Glass car, that there were cars in line ahead of defendant's car which stopped before he did and that the defendant signaled before stopping. In cross examination Mr. Starr was inquired of and replied as follows:

Q. "You have an interest in this suit, do you not?"

A. "That is correct."

Q. "You are interested for reasons of your own in seeing to it that Mr. Bosworth succeeds in this suit?"

A. "Not necessarily."

Q. "Isn't it a fact that your lawyer is assisting in the defense of this case?"

A. "That is correct."

Q. "That is that Mr. Kissane is your lawyer?"

Objection being made the question was excluded after some discussion, subject to the plaintiff's exception. During this discussion Mr. Kissane, one of the attorneys appearing for the defendant, made a statement at the bench, following which the court ruled as follows: "With the statement of counsel for the defendant, Mr. Kissane, the court considers the matter closed and the plaintiff will not be permitted to refer to either one of the attorneys for the present defendant as attorney for the witness now testifying." To this ruling plaintiff's counsel saved an exception stating that if this line of examination continued the witness would have revealed the facts to be as they had claimed them, evidently referring to the claim previously made that the witness Starr or some surety for him had employed Mr. Kissane to participate in the trial of the present case.

The exclusion of the pending question if error was harmless, since it merely served to identify the attorney referred to in the previous question and Mr. Kissane in effect admitted that it referred to him. The peremptory ruling which followed was in our opinion too drastic and interfered with a substantial right of the plaintiff. It is true that in State v. Glynn, 51 Vt. 577, 580, it was held that the unfriendliness of a witness for a party was so far collateral to the issue that inquiry as to detail would not be permitted, but only the general inquiry whether the witness is friendly or otherwise. It should be noted, however, that in the present case there had been no inquiry as to friendly or unfriendly feelings and the proposed line of inquiry might refer only to financial or business interests. The Glynn case is criticized in II Wigmore on Evidence 2d ed., Sec. 948, p. 332, note 3, where it is said that the case has no support elsewhere. The annotator in 74 A.L.R. 1158 also states that no other authority has been found for the proposition contained in that case.

The statement is made by Wigmore that there is to be understood a general canon that on cross examination the range of evidence that may be elicited for any purpose of discrediting is to be very liberal. Idem, Sec. 944, page 329. Our own later cases seem to be in accord with this proposition. We have said that a party is entitled to find out the full interest of a witness who testifies against him, and all the circumstances calculated to create bias, prejudice or zeal on the part of such witness may be inquired into. Raymond's Admx. v. Rutland Ry. Lt. & P. Co., 90 Vt. 373, 378, 98 A. 909; Vt. Farm Mach. Co. v. Batchelder, 68 Vt. 430, 442, 35 A. 378; In re Esterbrook's Will, 83 Vt. 229, 238, 239, 75 A. 1; Mears v. Daniels, 84 Vt. 91, 98, 78 A. 737; McAndrews v. Leonard, 99 Vt. 512, 518, 134 A. 710. The foregoing cases are inconsistent with the statement in State v. Glynn, 51 Vt. 577, above referred to, and that case is not to be considered as authoritative on that point.

Large scope is allowed to cross examination, the extent of it in a given case being left largely to the discretion of the trial court. Miller v. Pearce, 86 Vt. 322, 324 85 A. 620, 43 L.R.A. (N.S.) 332. The limitation of this discretionary control has been indicated by the statement that although cross examination is a right, yet the court may control the exercise of it to any extent that does not infringe the right itself. State v. Plant, 67 Vt. 454,...