Ellsworth v. Potter

The opinion of the court was delivered by Steele, J. 1. The doctrine that in this class of cases exemplary damages may, in the discretion of the jury, be awarded the party injured, has in this state been so long and so uniformly recognized, that, in our judgment, it should be regarded as settled beyond debate. The matters brought to the attention of the jury, namely, the circumstances of the trespass, the indignity to the plaintiff, the fact that the trespass was committed in the night time, the sit689 nation of tbe plaintiff’s family, were, all of them, as well as tbe degree of fault or of malice on tbe part of tbe defendants, legitimate subjects of consideration upon tbe question of damages. There was nothing in tbe charge of tbe court upon this subject of which tbe defendants are entitled to complain. Devine v. Rand, 38 Vt., 621. II. Dwight Rudd, a witness for tbe defendants, testified that be bad bad no difficulty with the plaintiff. Tbe plaintiff was at liberty not only to contradict this in general terms, but also under tbe direction of tbe court to state enough to indicate tbe extent or degree of tbe difficulty and consequent ill feeling. For this purpose she was allowed, against objection, to state that it bad proceeded to such a point that she turned tbe witness out of her bouse. This testimony was not intended or calculated to show which party was in fault, but only tbe degree of estrangement between them. It is impracticable by any general rule to fix a precise limit which should govern tbe admission of such evidence, and necessarily it must be left to a considerable extent to tbe discretion of the nisi prms court. Hutchinson v. Wheeler, 35 Vt., 330. We think that in this instance tbe court acted quite within the legitimate margin which must be left to their discretion, but even if tbe ruling was revisable, we should affirm it. III. Tbe plaintiff was also suffered to testify that there bad been a quarrel between her and tbe witness, Merritt Rudd. Tbe objection which is made to this .testimony is put upon tbe ground that the plaintiff should first have laid a foundation for it by inquiring of Merritt Rudd whether such a difficulty bad occurred. It is true that a witness who is examined in open court may not be impeached by proving bis declarations out. of court unless be is first particularly inquired of upon tbe subject. There is some reason for applying tbe same rule to mere proof of ill feeling, which has only been evinced by unkind or threatening remarks about tbe party, but when there has been an open quarrel or a suit at law between tbe party and tbe adverse witness, it becomes a substantive fact, and may be proved like relationship, or interest in tbe event of tbe suit, without previous inquiry of the witness in regard to it. Pierce v. Gilson, 9 Vt., 216. The [690] proof of such a difficulty, lawsuit, interest or relationship is not in the ordinary sense impeaching testimony, although it may be considered in determining the credit to be given the witness. The inquiry is not collateral but pertinent to the issue. Atwood v. Welton, 7 Conn., 66 ; 1 Stark, 135 ; Hutchinson v. Wheeler, 35 Vt., 330. IV. The defendant, Buel Rudd, a witness on his own behalf and in behalf of the other defendants, was asked whether he had had any difficulty with the plaintiff. To this he replied that he had not except in regard to a hay knife which the plaintiff stole of him. The plaintiff was then permitted, against objection, to give her version of the matter of the hay knife, and testified that the defendant concealed it upon her premises and then procured a search warrant and found it where he had himself left it. It is conceded that the testimony objected to was not pertinent to any issue on trial, and the question is whether its admission was error. The reply of the defendant that u he had had no difficulty with the plaintiff, except in regard to a hay knife,” was, so far, an appropriate answer to the question, but when he volunteered to cast an imputation or stigma upon the plaintiff, by adding “ which she stole of me,” he was testifying upon his own motion, and not in reply to the questions of cross-examining counsel. Had they chosen to call out his testimony upon the collateral question whether the plaintiff stole the hay knife, they would ordinarily have been bound by the answer and not permitted to contradict it. But they did not call it out. The defendant volunteered it, and although he did so during his cross-examination, it is no more a part of the cross-examination than if he had stated it in his examination in chief, on inquiry by his' own counsel. Having thus illegitimately and of his own motion thrust into the case a charge of theft upon the plaintiff, and supported it by his own oath, it does not lie in his mouth to claim that it is a collateral fact, and that the plaintiff is bound by his testimony not in answer to her questions, and that she must go through the trial under the imputation he has chosen to cast upon her. It is not for him to insist that her request to be allowed to state her version of the transaction shall be denied by the court. The court is not bound to turn [691] aside from the trial of the real issue to hear any personal explanation from the plaintiff on this collateral matter; bat if in their discretion they do so, the defendant can not complain. It was entirely for the court to say how much, if anything, in their discretion was necessary to be heard to repel the prejudice calculated to be produced by the improper testimony which was interjected by the party during his own examination. It has been held in this state that while a court is not required to receive, and ordinarily will not admit, evidence to contradict a witness upon a collateral issue, they may under peculiar circumstances do so in their discretion. Powers v. Leach, 26 Vt., 270. See also 1 Cowen & Hill’s notes, 729, and Savage J., in Lawrence v. Barber, 5 Wend., 305. Judgment affirmed.