Sayres v. Allen

• Citation: 25 Or. 211,35 P. 254
• Parties: SAYRES v. ALLEN.
• Decision Date: 08 January 1894
• Court: Supreme Court of Oregon

35 P. 254

25 Or. 211

SAYRES v. ALLEN.

Supreme Court of Oregon

January 8, 1894

Appeal from circuit court, Multnomah county; E.D. Shattuck, Judge.

Assumpsit by Maria Sayres against William O. Allen. From a judgment for plaintiff, defendant appeals. Reversed.

X.N Steeves, for appellant.

R.R Giltner, for respondent.

LORD C.J.

This is an action brought by the plaintiff against the defendant to recover the sum of $855.85, alleged to have been collected by the defendant as her agent from a number of persons named in the complaint. The answer denies such indebtedness, and sets up counterclaims which the reply puts in issue. The trial resulted in a verdict and judgment for plaintiff for the sum of $599.35, from which this appeal is brought. The error assigned relates to the refusal of the court to permit a witness to answer on cross-examination a certain question propounded to him. The bill of exceptions discloses that, after the plaintiff rested her case, the defendant was called as a witness in his own behalf, and, among other things, gave evidence tending to prove that he paid and advanced to the plaintiff, through George Sayres, her husband and agent, $1,201.75, that the amount claimed in her complaint should be satisfied out of this sum, and that he should have judgment for the balance. The defendant having rested his case, the plaintiff recalled George Sayres on her behalf as a witness in rebuttal, and, among other things, he gave testimony tending to prove that the said money so paid by the defendant was not paid on plaintiff's account, but that it was money due from the defendant to him on account of a partnership existing between himself and said defendant and collections made by defendant, as receiver and otherwise on accounts due said Sayres and one Antone as partners. Defendant, by his counsel, asked said witness, on cross-examination, to state "what partnership existed between said Sayres and defendant, and between him and one Antone, when it was, its nature and business, and when defendant was receiver, and for what this money was collected by said Allen, and when, and fully state all about this partnership and receivership, and moneys collected by Allen on account thereof;" to which question counsel for plaintiff then and there objected, whereupon the court sustained the objection, and refused to allow any testimony in regard to said partnerships by the witness on said cross-examination, or as to the money collected as receiver, or as to the total amount of money which the said Sayres claimed the defendant had collected; to which ruling the defendant, by his counsel, then and there excepted, and said exception was allowed.

At the outset of the argument, the contention of the defendant involved the idea that the trial court, in its ruling, proceeded on the mistaken notion that the cross-examination of a witness is a matter within its discretion, and not a legal right of the defendant. We are satisfied, however, that the trial court made its ruling from no misapprehension of its duties. It may be true, as claimed for the plaintiff, that the question asked was excluded because the matter to which it was addressed had been already freely investigated, but this cannot be assumed; it should be made to appear by the record. Certainly, if such was the case, it was the duty of council to have called the attention of the trial court to the matter, and secured its incorporation in the bill of exceptions certified to us; otherwise, we cannot regard such matter. Judged by the record and the argument, the question asked was excluded upon the assumption that it was not proper cross-examination, or that it included matter beyond the scope of legitimate cross-examination. The extent and range of such examination is largely in the discretion of the trial court, and, as a consequence, its exercise is not subject to appellate review unless a clear case of abuse or manifest injustice is disclosed.

The question, then, in the present case, is whether the ruling of the trial court amounted to an abuse of its discretion. It will aid us in the determination of this question to keep in view the object of a cross-examination, and the limit within which the right may be exercised. The object of all cross-examinations is to break the force, or destroy the effect, of the testimony given by the witness on his direct examination, or to lay the foundation for the testimony of other witnesses which shall have that effect. As a means to this end, when a witness has been examined in chief, the adverse party has the right to cross-examine him for the purpose of showing the situation of the witness with respect to the parties and to the subject of the litigation his interest, his motives, his inclinations and prejudices, his means of obtaining a correct knowledge of the facts to which he has borne testimony, and the manner in which he has used these means, his power of discernment, memory, and description, so that the jury may have the opportunity of observing his demeanor, and of determining the just weight and value of his testimony. 1 Greenl.Ev. § 446; Tayl.Ev. § 1285; 1 Whart.Ev. § 545; Starkie, Ev. 195. Such an examination affords one of the principal and most efficacious tests for the discovery of truth, and renders it extremely difficult for a witness subjected to such test to impose upon the court or jury. Such being its importance, great latitude should be allowed the adverse party in conducting his cross-examination, in order to make it effective, and subserve the ends of justice. Our Code provides that "the adverse party may...