California Fruit Canners' Ass'n v. Lilly

GILBERT, Circuit Judge (after stating the facts as above). It is contended that the admission of the evidence given on the cross-examination of S. L. Goldstein was error for which the judgment should be reversed. The plaintiff had sued upon a stated account, and had alleged that the defendant was indebted to it in the sum of $19,185.87. The defendant, in addition to other defenses, denied the indebtedness, and denied that an account had been stated. Goldstein was called to testify for the plaintiff. He testified that he had sent the statement of the account to the defendant, and that he had received the defendant’s letter in response, and both the statement and the letter were offered in evidence. On the cross-examination he testified that the goods which are mentioned in the statement had never in fact been sold to the defendant, that they had never been segregated from the mass of other similar goods owned by the plaintiff, and that they remained the plaintiff’s property. The letter which the defendant had sent on receipt of the statement and which is claimed to have constituted an assent thereto, referred to the goods “which you are holding in the warehouse for us.” In an instrument which was made an exhibit to the complaint, it would appear that the dealings between the parties were had upon ah understanding that the plaintiff was to hold as bailee for hire, and to insure at defendant’s expense all goods ordered by the defendant. The letter of the defendant shows that the defendant so understood the transactions between the parties, and the items of warehouse charges contained in the statement conduced to that understanding. Now, the cross-examination of Goldstein shows that such was not the fact, that it was not true that the plaintiff was a bailee, that there was no actual or constructive delivery of the goods, and that there could be no legitimate warehouse or insurance charges against the defendant, nor charges for goods sold and delivered. It is true that in the courts of the United States the party on whose behalf a witness is called has the right to restrict his cross-examination to the subjects of his direct examination. Various reasons have been assigned for the rule. One is that the party by whom the witness is called stands sponsor for the truth of the testimony which he elicits on the direct examination, and that the adverse party has no right to bind him by testimony brought out on cross-examination as to other matter's. Another is that the rule conserves the purpose and end of cross-examination. Another is that otherwise the [573] party calling the witness would lose the benefit of cross-examination on the evidence adduced to support his opponent’s case. Another is that the cross-examiner ought not to be allowed to employ leading questions as to matters brought out in support of his own cause. Another is that the rule tends to promote the orderly and methodical trial of a cause. It may be doubted whether there is any substantial merit in any of these reasons unless it be in the last, and as that reason relates only to form and method, it would seem that a rule based thereon ought to yield to the sound discretion of the trial court. But whatever may be said of the reasons on which the rule is ordinarily upheld, there is no substantial reason why, in the exercise of sound discretion, the court may not relax the rule in the case of the cross-examination of a party to the action. Here was a witness who was the vice president and treasurer of the plaintiff, and its active agent in its transactions with the defendant. To all intents and purposes he was the plaintiff. He was introduced as a witness to testify as to his own acts. He was sworn to testify to the whole truth. He produced in evidence the statement of account which he had sent to the defendant, together with the answer of the defendant thereto, which, on its face, was an assent to the statement and an acknowledgment of the debt. He testified that no payment had been made on the account or on the items of storage therein specified. In presenting those papers he vouched for their truth, and he thereby asserted that the goods had been sold and delivered as represented in the statement. He was examined in such a way as to have him avoid testifying to the important facts which went to the merit of the controversy, facts which were peculiarly within his own knowledge. In such a case, why should the defendant be required to make the plaintiff a witness for the defense, and be compelled to give credit to the plaintiff’s testimony as to the very existence of his own cause of action? Callison v. Smith, 20 Kan. 37; Norris v. Cargill, 57 Wis. 251, 15 N. W. 148; Rea v. Missouri, 17 Wall. 532, 542, 21 L. Ed. 707. Said Mr. Justice Bradley in the case last cited: “But a greater latitude is undoubtedly allowable in the cross-examination of a party who places himself on the stand than in that of other witnesses. Still, where the cross-examination is directed to matters not inquired about in the principal examination, its course and extent is very largely subject to the control of the court in the exercise of a sound discretion, and the exercise of that discretion is not reviewable on a writ of error.” But even if the witness Goldstein is not to be deemed, technically speaking, the actual plaintiff in the action, it is clear that the admission of his testimony on the cross-examination was not error for which the judgment should be reversed, for the plaintiff was not injured thereby. The defendant could have called the witness in his own behalf and could have elicited the same testimony in his defense. Lukens v. Hazlett, 37 Minn. 441, 35 N. W. 265. In Wills v. Russell, 100 U. S. 621, 25 L. Ed. 607, it was held that where it appears that no injury has resulted to the plaintiff in error, a judgment will not be reversed merely because the court at the trial permitted a witness on [574] Bis cross-examination to be interrogated as to matters pertinent to the issue, but about which he had not testified in chief. . . • We need not enter into the discussion of the question whether the court erred in requiring the plaintiff to elect between his two causes of actions. The joinder of such counts has been permitted in New York. Johnson v. Tyng, 1 App. Div. 610, 37 N. Y. Supp. 516. But there was no reversible error in the ruling of the court in the present case, for the evidence which was adduced on the cross-examination of the plaintiff’s witness would have been fatal to recovery upon either of the counts pleaded in the original complaint. The judgment is affirmed.