Sidur v. Thall

• Decision Date: 11 May 1943
• Docket Number: No. 65.,65.
• Citation: 31 A.2d 873
• Parties: SIDUR v. THALL
• Court: D.C. Court of Appeals

31 A.2d 873

SIDUR

v.THALL

No. 65.

Municipal Court of Appeals for the District of Columbia.

May 11, 1943.

Appeal from Municipal Court of District of Columbia, Civil Division.

Suit by Lenore Thall against John Sidur to recover value of personal property. From an adverse judgment, defendant appeals.

Reversed with instructions to award a new trial.

RICHARDSON, C. J., dissenting.

Joseph M. Bonuso, of Washington, D. C., for appellant.

Morris Benson and Edward J. Lynch, both of Washington, D. C., for appellee.

Before RICHARDSON, Chief Judge, and CAYTON and HOOD, Associate Judges.

CAYTON, Associate Judge.

The suit was for $676.96 representing the value of certain furniture and other personal property allegedly withheld by defendant, the former husband of plaintiff. Trial was by the court and resulted in judgment for plaintiff.

Plaintiff testified she and defendant had been married in this District on August 4, 1941, that they separate two months thereafter and that in March, 1942 she obtained an annulment of the marriage in the state of New York. It was her claim that the property involved in this suit had been a personal gift to her from her mother. Defendant contended that the property had been given to him. Cross-examination of the plaintiff developed that she had been worked in the District for more than a year preceeding the marriage and that her home had been in New York City for more than six years. Pursuing the cross-examination, defendant's counsel attempted to question her with reference to an affidavit she executed in order to file the annulment suit in Monticello, New York, and attempted to show that Monticello is about 100 miles from her home; he also sought to examine her as to her having sworn falsely in the affidavit filed as a basis for the annulment proceeding, and also to statements made to the court at the hearing of the annulment proceeding. The trial court ruled that all such cross-examination was improper, ‘that it was a collateral matter and not admissible in this suit’. On this single ground we are required to reverse. This we do on the authority of Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 219, 75 L.Ed. 624. In that case the Supreme Court reversed the decision of the Circuit Court of Appeals for the Ninth Circuit, 41 F.2d 157, which had affirmed a judgment of the District Court of the United States for the Southern District of California. The reversal was based entirely on the refusal to require an answer to a single question which had been put to a witness: ‘Where do you live?’

It happened that the question was not responsive to anything developed in the direct examination; but the Supreme Court pointed out the cross-examination of a witness is a matter of right ‘and that facts may be brought out tending to discredit the witness by showing that his testimony in chief was untrue or biased’. Speaking for the Court, Mr. Justice Stone said: ‘Counsel often cannot know in advance what pertinent facts may be elicited on cross-examination. For that reason it is necessarily exploratory; and the rule that the examiner must indicate the purpose of his inquiry does not, in general, apply. [Citing cases] It is the essence of a fair trial that reasonable latitude be given the cross-examiner, even though he is unable to state to the court what facts a reasonable cross-examination might develop. Prejudice ensures from a denial of the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test, without which the jury cannot fairly appraise them. [Citing cases] To say that prejudice can be established only by showing that the cross-examination, if pursued, would necessarily have brought out facts tending to discredit the testimony in chief, is to deny a substantial right and withdraw one of the safeguards essential to a fair trial. [Citing cases.]’

In the case cited the cross-examination of a mere witness was involved. Here it was directed to the plaintiff herself. Her testimony was directly contrary to the of defendant and the case turned upon an issue of fact. That issue was directly connected with the marriage and the marital status. Also involved was the annulment suit which the plaintiff had brought in New York, seemingly in a city and county other than her own home. It was to the circumstances of the filing and prosecution of that suit that the cross-examination was directed. Whether plaintiff could have explained...