Kaplan v. Loev , 327 Pa. 465 ( 1937 )

Argued April 23, 1937; reargued May 20, 1937. The court below sustained objections to certain questions proposed to be put to two of defendant's witnesses by plaintiffs' attorney in cross-examining them. The trial resulted in a verdict and judgment for defendant. These appeals are by plaintiffs, who assign as error the refusal of the court to allow the questions.

The details of the collision between the automobile in which plaintiffs were riding and defendant's automobile which give rise to the suit need not be stated. It is sufficient to say that defendant claimed he was not negligent and the witnesses to whom the questions were proposed to be propounded, husband and wife, were guests in defendant's car and their testimony went to establish that fact.

The questions proposed to be asked are these:

1. Whether the witnesses had made a claim for damages to defendant by reason of injuries he or she received in the accident.

2. Whether the witnesses had signed a release to defendant, releasing him from all claims for such injuries.

3. Whether the witnesses had received from defendant a sum of money in compensation for such injuries.

It is argued by appellants' attorney that these questions were proper for the purpose of attacking the credibility of the witnesses or to show bias.

From the opinion of the court below we learn that it was stated, in a side bar conference between counsel on both sides and the trial judge, that the witnesses had never brought suit against defendant, and had never made any statement in writing, or orally, indicating that he had been negligent, but that small settlements had been made with them by an insurance company on defendant's behalf. It is manifest that to permit the witnesses to answer the questions, and to tell the whole truth about the transaction, as they under their oaths were required to do, would be to lay before the jury the fact that defendant was protected by insurance, something which we have said must not be brought out upon the trial: Hollis v. UnitedStates Glass Co., 220 Pa. 49, 69 A. 55; Brown v. Scranton,231 Pa. 593, 80 A. 1113; Curran v. Lorch, 243 Pa. 247, 90 A. 62. That the attempt to get this information before the jury was by questions which were adroit, and not in themselves revealing of the forbidden fact, can make no difference so far as the propriety of the court's ruling is concerned. While the right of cross-examination cannot be denied by the trial judge where fairly conducted, he has the undoubted right to control and even to deny it where manifestly it is being used for the purpose of getting before the jury facts forbidden by the law to be divulged.

We are not unmindful of the general principle called to our attention by appellants' counsel as stated in 70 C. J. 813, sec. 1020: "As bearing on his credibility, a witness may be cross-examined as to inconsistent acts or conduct generally, acts or conduct inconsistent with his testimony, or omissions on his part which tend to discredit him." But we think in the proper administration of justice it would not be proper under the cover of this principle to permit the vehicle of cross-examination to be used to convey to the jury a circumstance highly prejudicial to one of the parties which could not directly be placed before the triers of fact. Such an impropriety in the use of cross-examination should be within the control of the trial judge in the exercise of his impartial judicial discretion. We do not regard any of our cases cited by appellants, such asIrish v. Smith, 8 S. R. 573; Ott v. Houghton,30 Pa. 451;Mullen v. Union Central Life Ins. Co., 182 Pa. 150, 37 A. 988, as conflicting with this sound rule. In none of them was presented the precise situation with which we are dealing. Nor do we think Alford v. United States, 282 U.S. 687, covers what is before us. There, the court held that a reasonable latitude must be given the cross-examiner. If reasonable latitude means in a proper and not unfairly prejudicial mode we think it cannot be said that the intended cross-examination meets the test of reasonableness. In that case the questions ruled out by the lower courts were asked by counsel for defendant in a criminal case to elicit information about where a witness for the government lived in order to extract information as to his surroundings and environment, particularly that he was in the custody of the Federal authorities. We can readily understand why under certain circumstances, as for instance to indicate that his testimony was affected by fear or by a desire to curry favor, such questions would be proper. As the Supreme Court said: "Prejudice [to defendant's case] ensues from a denial of the opportunity to place the witness in his proper setting." That was not the endeavor here; the ultimate purpose was to develop something improperly prejudicial.

In Lenahan v. Pittston Coal Mining Co., 221 Pa. 626, 629,70 A. 884, we said: "The fact that the defendant in an action for personal injuries is insured in an employers' liability company has not the slightest bearing on the issue. It is an irrelevant fact prejudicial to the defendant and its introduction by the plaintiff, whether by testimony offered by him, by statements of his counsel, by offers of proof or by questions asked witnesses or jurors under thepretense of disclosing interest or bias, is ground forreversal: (Italics supplied) Walsh v. Wilkes-Barre, 215 Pa. 226; Hollis v. Glass Co., 220 Pa. 49. The rulings of these cases will be strictly adhered to and rigidly enforced, and no evasion or circumvention of them by indirection will be tolerated." The opinion goes on to point out that it is always the right of the party against whom a witness is called to show by cross-examination "that he has an interest direct or collateral in the result of the trial or that he has a relation to the party from which bias would naturally arise." (Italics supplied.) As the opinion points out, cross-examination is proper only "as long as it [is] conducted in good faith for alegitimate purpose." (Italics supplied.) Here, it is obvious that it was to be carried on to inject something into the case which our decisions bar. In that action, the defendant in an accident case called its own attorney to discredit one of plaintiff's witnesses. On direct examination he had testified that he was attorney for defendant. On cross-examination counsel for plaintiff was permitted to ask him whether he was not also the attorney for the employers' indemnity company which had insured defendant against liability for accidents to employees, in order to show his further interest in the suit. It is not pretended in this case that the witnesses to whom the questions were to be presented had any interest in the suit.

Whether a particular line of cross-examination is proper is a matter for the discretion of the trial judge: Gallagher v.Phila. R. T. Co., 248 Pa. 304, 93 A. 1074; Maloy v. RosenbaumCo., 260 Pa. 466, 103 A. 882; Thompson v. American Steel WireCo., 317 Pa. 7, 175 A. 541; Pusey's Est., 321 Pa. 248,184 A. 844. "The extent to which a witness may be cross-examined for this purpose [to test his credibility] rests in the sound discretion of the trial court": Fischer v. Commercial Nat. Bank, 321 Pa. 200,202, 184 A. 57. To which we may add, so does the fairness and propriety of the examination.

The judgments are affirmed.

Mr. Justice MAXEY, Mr. Justice DREW and Mr. Justice STERN dissented.