Opinion
01-26-1888
PULLEN v. PULLEN.
W. Y. Johnson, for appellant. G. O. Vanderbilt and W. D. Holt, for appellee.
Bill for divorce. On appeal from the master's rulings on evidence.
W. Y. Johnson, for appellant. G. O. Vanderbilt and W. D. Holt, for appellee.
BIRD.V. C. To understand the question in hand, it should be remembered that it arises on the examination of the defendant, who is charged by his wife with the crime of adultery, and also with many acts of cruelty, showing alienation of affection, and also showing, because of those acts, that the wife had just cause for separating herself from him. The defendant was sworn in his own behalf. On cross-examination he was asked: "Question. Did you make any effort to get her to come back? Answer. No sir; I did not. Q. For what reason was your wife not in your house? A. Why, she went away. Q. Why did she go away? A. I suppose she loved Phillips more than she did me—loved his company more, liked to be in his company." On being re-examined, his intention was directed to this last question and answer, and asked: What reasons had you for believing your wife loved Phillips more than she did you?" This question was objected to as "not pertinent or relevant to the issue, and as not a proper re-examination." But the master allowed the question to be answered. Was he right?
The last branch of the objection is the material one. Was it a proper re-examination? Hence the inquiry: To what extent may the re-examination be carried? Greenleaf says: "To ask all questions which may be proper to draw forth an explanation of the sense and meaning of the expressions used by the witness on cross-examination, if they be in themselves doubtful; and also of the motive by which the witness was induced to use those expressions; but he has no right to go further and to introduce matter new in itself and not suited to the purpose of explaining either the expressions or the motives of the witness." 1 Greenl. Ev. § 467. 2 Taylor, in his work on Evidence, § 1474, says the witness may be re-examined, not only with respect to his motive, but also his provocation which induced the expression used on cross-examination.
Let us look at the few illustrations which the books present. On a trial of the defendant for incest with his niece, the woman was not examined as a witness by the state, but the defendant examined her as a witness in his behalf. On being asked if defendant had ever had sexual intercourse with her, she answered, he had not. On the cross-examination, counsel for the prosecution presented her with the affidavit which she had made by which proceedings in bastardy had been instituted, and in answer to his question she stated that she had signed the affidavit. On re-examination by defendant's counsel, she was asked if the signing of the affidavit was voluntary on her part. The question was objected to, as not a re-examination, and the objection sustained, and on appeal this was held to be error. Yeoman v. State, 31 N. W. Rep. 669.
In Kendall v. City of Albia, 34 N. W. Rep. 833, the plaintiff testified, without objection, that his services were worth in his business $200 per month. On cross-examination, he said, I can get more than that; I can get $2,500 for my time outside of my business. On re-direct examination, he said he meant that he could get that sum for superintending other people's business. Held, that the defendant could not object to this testimony, as it was merely explanatory of evidence introduced by himself.
In Blumenthal v. Bloomingdale, 100 N.Y. 558, 3 N. E. Rep. 292, the question arose upon an action at law for breach of a contract in a lease. The court of last resort said: "The defendant, upon cross-examination of Elkin Blumenthal, a witness for the plaintiff, drew out of him the fact that on one occasion he soughtto negotiate with defendant a sale of plaintiff's crockery business, which negotiation failed. The purpose of this evidence, or the inference which the defendant sought to draw from it, is not very apparent. It was new matter, not at all growing out of the direct examination. It was possible to infer from it that plaintiff's business was unsatisfactory, and so without profit as to make a sale desirable, and that independently of any interference by defendant, since nothing of the kind was alleged in the negotiation. Upon the re-direct examination of the witness, he was allowed to testify, under objection and exception, that plaintiff, when he requested him to attempt the negotiations, stated as a reason for his desire to sell, that defendants had obstructed him, and he could not compete with them. The alleged reason for the offer of sale actually given to the selected agent was a part of the res gestœ of the particular transaction made by the defendants themselves the subject of inquiry. If they were entitled to part of it, plaintiff might prove the whole to prevent or rebut any adverse or damaging inferences. The answer, too, as the general term suggests, beyond bringing out the true character and purpose of the attempted negotiation, tended to prove nothing more than what the plaintiff had already stated as a witness."
In Bank v. Young, 36 Iowa, 44, a witness for the plaintiff said he saw the defendant sign the note in question. On cross-examination, he said the matter had once been talked over by the bank officers, and the loan to Young had been refused. On re-examination, he was asked to state the reasons for such assertion respecting the talk with the bank officers, and, upon objection, the question was overruled. On appeal, this was held to be erroneous.
In Rex v. George, 9 Car. & P. 193, on trial of A. for an attempt to discharge loaded arms at B., B., (with a view to discredit his evidence,) was cross-examined as to whether he had not used violent language towards his father, which he admitted he had. Held, that on re-examination B. might be asked as to how his father had acted towards him before he used the language that he had been cross-examined about.
In Railroad v. Doughty, 22 N. J. Law, 500, a witness was asked, on cross-examination, whether the plaintiff at any time had told him how his property was injured by the railroad, and was answered in the affirmative, without more. On re-examination, he was asked what the plaintiff said to him on that point, to which objection was made; but the question was allowed to be answered. The supreme court held that this was not error.
The opinion of ABBOTT, C. J., in Queen's Case, 2 Brod. & B.284, seems to make quite plain the fair scope and limit of a re-examination. He shows that when a conversation is alluded to on cross-examination which is material to the issue, the re-examination may be extended to the whole of such conversation on that material point, but nothing beyond. He also says it is right "to ask all questions which may be proper to draw forth an explanation of the sense and meaning of the expressions used by the witness on cross-examination, if they be in themselves doubtful, and also, of the motive by which the witness was induced to use those expressions; but, I think he has no right to go further, and to introduce matter new in itself, and not suited to the purpose of explaining either the expressions or the motives of the witness."
For further illustrations, see Hex v. Beezley, 4 Car. & P. 220; Rex v. Simmonds, 1 Car. & P. 84; Rex v. Bodle, 6 Car. & P. 186.
Now, what were the affirmations of the witness about which are-examination is sought, but which is objected to? They are that the petitioner loved Phillips more than she did the witness, and his company better than the company of the witness. These were legitimate answers to questions put by counsel for the petitioner. In my judgment, it was within the rule to ask on re-examination, why the witness said that he supposed his wife loved Phillips more than she did the witness. It seems to me that it should appear from his own lips whether or not such a direct and serious charge, elicited as it was, washonestly made, and had any foundation in fact. And I think, if such charge had any facts, within his knowledge, to rest upon, he should be permitted to state those facts; for, if there were no facts of which he could speak, his making such a broad statement under oath would go very far towards qualifying the value of the rest of his testimony, and sustaining one of the main points pressed by the petitioner, i. e., a decided alienation of affection on the part of the defendant. Hence, the very natural inquiry: What motive had the witness in making such a charge? Did he so swear from pure malice? Was it because he had contracted an unreasonable dislike to his wife, and had become unlawfully attached to another, or because he had seen enough of his wife's actions to justify him? That a good or bad—a true or a false—motive prompted him, cannot be questioned. This being so, brings the case within the rule; whether the motive was good or bad, true or false, certainly should be shown, and that, too, from his own lips.
Counsel for petitioner insists that one fatal objection to this re-examination is that thereby the defendant is permitted to thrust into the case, at an improper time, testimony which, considering what had taken place, he was not entitled to. The claim is that while he might have shown the conduct of his wife towards Phillips on his direct examination, not having done so, he cannot introduce it now. The question at issue cannot be settled by any such reasoning. The question is not, alone, what the defendant might or might not prove, independently of the action of the petitioner on cross-examination, but the question is, what has the petitioner, by her cross-examination, made possible for the defendant to prove or re-examine about? Nor can the court, under such circumstances, reject such testimony because of any influence it may have upon the merits of the case, if perchance it may be considered to that end; but of this more. Again, it is said that the introduction of this evidence is opening the door to the defense of recrimination, without such defense having first been set up by pleas or answer. First. Such defense cannot be presented without having been distinctly pleaded, so long as the case of Jones v. Jones, 18 N. J. Eq. 33, stands unreversed; and, secondly, the introduction of the testimony by way of re-examination does not make it necessary for the court to give the same effect to it as though the defense of recrimination had been pleaded. It is every day's experience for the trial judge to admit evidence which will be considered for one purpose and for no other; but which, under other circumstances, might be considered for all purposes. It is a like experience which teaches us that facts may be sworn to in one stage of a cause which at any preceding stage would be wholly inadmissible or irrelevant.
The master should be affirmed, with costs.