Coles v. Harsch

In this action the plaintiff sought to recover a judgment for $50,000 upon charges that the defendant had maliciously alienated the affections of plaintiff's wife by improper attentions shown to her in the years 1923, 1924, and 1925. The answer denied all of these charges. In these years the plaintiff's sister was the wife of defendant. In the fall of 1925 the defendant instituted a suit for a decree of divorce; his wife filed a cross-bill, and on January 13, 1926, the decree was awarded to her. June 1, 1926, the plaintiff's wife left his home; June 4th she instituted a suit for a divorce against him; he defaulted, and on June 23, 1926, she obtained the decree. May 16, 1927, the defendant married plaintiff's former wife. The verdict and judgment were in favor of the plaintiff in the sum of $17,500. The defendant appealed.

ROSSMAN, J. (after stating the facts as above).

The defendant presents for our disposal several assignments of error. We shall first consider the one which is based upon the endeavor of the plaintiff to impeach the testimony of one James A. Thompson, who was one of the defendant's principal witnesses. In order to better understand the situation presented by this assignment of error, it seems desirable to state the following undisputed facts: While the parties were married to their former wives, the two couples belonged to the same social group; they frequently met at card parties, dances, and other social diversions, and frequently visited back and forth. The plaintiff contended that at some time in 1923 he noticed that the defendant was developing a propensity for wrestling with the plaintiff's wife, and engaging in other similar play with her. It was his contention that this propensity of the defendant did not abate with the passing of time, but that it grew more pronounced, and the plaintiff contended that it constituted one of the means which the defendant employed for winning the affections of the plaintiff's wife. This seems to be a rather unusual method of love making, yet if current reports are reliable, it is not the first instance where a cicisbeo has delved into the distant stone age and brought forth a somewhat rough and uncouth method of endearment, which well served his purpose, and brought about the desired result. Be this as it may, it will suffice to say that much time was consumed in the trial court in taking testimony concerning these wrestling and similar encounters and the extent to which other members of the parties participated in them; there was also testimony, not all in harmony, however, concerning the plaintiff's protests against the activities along these lines of his wife and the defendant and the latter's replies and rejoinders thereto.

As we have said, one of the defendant's principal witnesses was a Mr. James A. Thompson. The latter and his wife were members of this social group. His testimony, apparently important to the defendant, covered these wrestling encounters, the social diversions of the group, and the relationship between the defendant and Mrs. Coles, plaintiff's former wife. If his testimony was accepted as truthful by the jury, the defendant's conduct towards Mrs. Coles was the same as his conduct towards other women friends, and was proper and harmless. Apparently nothing developed upon cross-examination which obviously discredited this witness; but, upon rebuttal, the plaintiff was permitted over objection to testify that, “at the time I was in the garage where he works,” Thompson told him that at a picnic held on the banks of the Pudding river the conduct of the defendant and Mrs. Coles towards each other was disgraceful. Before defendant's objection was ruled upon, plaintiff's counsel stated that the purpose of the contemplated answer was to “go to the credibility of Thompson.” The objections of the defendant to the questions, which elicited the above answer, were specific and were reiterated; they were to the effect that, if the plaintiff sought this information to substantiate the charges of his complaint, the inquiry was in violation of the hearsay evidence rule: That if the plaintiff sought the answer for the purpose of impeaching Thompson, he had not laid the proper foundation by making a similar inquiry of Thompson accompanied with the details of time, place, and persons present. The merits of the first alternative of the objection are so self-evident, . . . that we deem it necessary to set forth our consideration only of the second phase of the objection.

Section 864, Or. L., provides: “A witness may also be impeached by evidence that he has made, at other times, statements inconsistent with his present testimony; but before this can be done, the statements must be related to him, with the circumstances of times, places, and persons present; and he shall be asked whether he has made such statements, and if so, allowed to explain them. If the statements be in writing, they shall be shown to the witness before any question is put to him concerning them.”

It is necessary, therefore, to examine the inquiries propounded to Thompson and determine whether a similar question was put to him which complied with this statutory rule. Pausing for a moment, it is worth while to observe that this requirement does not invoke an idle ceremony, but is intended to serve a useful purpose. Every witness, whose testimony is shown in conflict with a previous statement made by him, is not necessarily revealed thereby as a dishonest person; the impeachment, in many instances, may uncover only a faulty memory in the discredited witness. The requirement that the identifying circumstances of time, place, those present, and the statement that the witness then made shall be related to him, is founded upon the experience, which frequently presents itself in the courtroom, that a witness, who has stoutly denied having made an alleged statement, may finally blushingly and apologetically admit it, when the questioner throws into association with it identifying circumstances. It is a common observation that associated ideas, as they are related, one after another, not infrequently succeed in upturning a fact which previously had defied all efforts of recollection. And so this rule of evidence is intended to reveal not only the dishonest witness, but is also intended to afford all witnesses ample opportunity to recall a fact before they may be assailed as dishonest. The requirement also tends to reduce to the minimum a confusion of issues by eliminating unnecessary impeachments. . . .

Approaching the statutory requirement thus broadly as one intended to serve a practical, useful end, let us see what the record presents. On direct examination Thompson was asked concerning a conversation he had had with the plaintiff at the Bybee Avenue Garage. The witness stated that the conversation occurred so long ago that his recollection had become somewhat vague, but he recalled that at that time the plaintiff said that his wife was going to get a divorce. No further questions were asked him on direct examination concerning that conversation. The time of this conversation was not fixed, nor were those present mentioned, and he was asked nothing concerning the Pudding river incident. On cross-examination he was asked whether he recalled “talking to Mr. Coles about that trip to the Pudding river.” He replied in the negative. This was the only foundation laid for the impeaching question; we believe it was insufficient. It may be that Thompson was untruthful, but before the plaintiff could avail himself of such an argument he should have prepared the necessary premise by submitting to Thompson the alleged statement accompanied by the identifying circumstances. Since this was not done, error was committed when the impeaching witness was permitted to answer.

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Reversed and remanded.