Clever v. Hilberry , 116 Pa. 431 ( 1887 )

Opinion,

Mr. Justice Green:

We are clearly of opinion that the fourth assignment of error is sustained. The plaintiff was permitted to give in evidence her own declarations made to third persons in the absence of the defendant, in her own favor, and not under oath. Those declarations are as to the very substance of her cause of action. They are mere repetitions to others of the alleged breaches of contract by the defendant. But she was a competent witness in her own behalf, and was examined as such, and testified before, the jury, under the sanction of an oath, and subject to the cross-examination of her opponent, to whatever facts she had to relate. Why then should she be permitted to prove that she had told the same story to other persons out of court and in the absence of the defendant? The declarations of a party in his own behalf are not evidence. No rule is clearer than this. We oau perceive nothing in the declarations received in this case but the mere assertions made by the plaintiff as to the defendant’s breaches of contract. They are her own statements of her cause of action to the witnesses who simply repeat what she told them. Certainly she cannot do this. The learned court below thought they tended to show that her story was not of recent fabrication, and therefore were admissible upon the very exceptional and narrow ground upon which in certain peculiar circumstances a previous statement made by a witness may be given in evidence to corroborate his statement made on the trial. But the difficulty with the present case is that those exceptional circumstances are all wanting.

Where it is important to know whether a statement made by a witness on the trial of a cause is of recent fabrication, it is sometimes competent to show that upon some former occasion, when there was no reason to suspect his motives, he stated the matter in the same way as upon the trial. The subject is thus presented in 1 Whart. Ev. § 570: “When a witness is assailed on the ground that he narrated the facts differently on former occasions, it is ordinarily incompetent to sustain him by proof that on other occasions his statements were in harmony with those made on the trial......On the other hand, where the opposing case is that the witness testified under corrupt motives, or where the impeaching evidenee goes to .charge the witness with a recent fabrication of his testimony, it is but proper that such evidence should be rebutted. It has consequently been ruled that statements made by a witness corroborating his evidence upon the trial, such statements being uttered soon after the transaction in litigation and at a time when the witness could not have been subjected to any disturbing influences, are competent where proof has been offered to impeach him by showing that he had recently fabricated the narrative, or that he testified corruptly.” In the case of Craig v. Craig, 5 R. 91, C. J. Gibson discusses the matter at some length,'and says: “But statements by a witness at another time, though admissible to contradict him, are not equally so to confirm him. They are certainly not receivable before his credibility has been assailed; but it is a vexed question whether they may not be used to rebut evidence of self-contradiction by showing him to have been sometimes consistent.” After citing some authorities, pro and eon, and stating the rule as expressed by Starkie, Judge Gibson proceeds: “ Adopting then the rule of Mr. Starkie with its exception that, consonant declarations may be given in contradiction of evidence tending to show that the testimony at the bar is a fabrication of a recent date, and to show that the «ame statement, was made before its ultimate effect on the question trying could have been foreseen, we come to an inquiry,” etc., etc. In McKee v. Jones, 6 Penn. St. 425, Burnside, J., says: “ Statements by a witness at another time, though admissible to contradict, -are not equally so to •confirm him. This is the general rule. But consonant declarations may be given, in contradiction of evidence tending to «how that the testimony at the bar is a fabrication of recent date, and to show that the same statement was made before its ultimate effect on the question trying could have been ■foreseen.”

Tested by these considerations, it will be seen at once that “the declarations in question are clearly incompetent. They were made almost immediately before the present suit was commenced and contemporaneously therewith. They do not tend to show, therefore, that they were not a fabrication of recent date; but rather to confirm that theory, since they •cannot rationally be dissociated from the plaintiff’s immediately following action. Nor do they show that the same statements were made before their ultimate effect on the question trying could have been foreseen. On the contrary they were made in such close connection with the bringing of the suit, that they have much the appearance of being made for the very purpose of affecting the question to be tried, by making evidence in support of the plaintiff’s claim. It would be a very dangerous practice, in our opinion, to permit a party who is about to commence an action against another, to go about making declarations to third persons as to the substance of his cause of action, and then on the trial of that same action to give those declarations in evidence for any purpose. It looks too much like an attempt to manufacture improper testimony for the very purpose of using it on the trial.

The remaining assignments of error are without merit and are not sustained.

Judgment reversed and new venire awarded.