(93 Vt. 418) (108 A.) NIEBYSKI v. WELCOME. (No. 162.) of rebuke or caution, although the question was not answered. (Supreme Court of Vermont. Brattleboro. Oct. 9. TRIAL 252(6)-INSTRUCTION ON CONSENT 7, 1919.) 1. WITNESSES 388(10) — LAYING FOUNDATION FOR IMPEACHMENT BY INCONSISTENT STATEMENTS. In laying a foundation for impeachment of a witness by proof of inconsistent statements out of court, they should first be called to the witness' attention, and the circumstances of the supposed statement referred to sufficiently to give reasonable notice of the occasion. 2. APPEAL AND ERROR 939-PRESUMPTION AS TO SCOPE OF EXCEPTION TO EVIDENCE. Where the transcript which is made the bill of exceptions discloses the ground of a ruling sustaining an objection to evidence, it will be presumed that it shows the full scope and point of the exception. 3. WITNESSES 383-NO IMPEACHMENT UP ON COLLATERAL ISSUES. A witness cannot be impeached upon a collateral issue. 4. WITNESSES 383 TEST ON IMPEACHMENT AS TO WHAT IS COLLATERAL ISSUE. The test as to what is a collateral issue, under the rule that a witness cannot be impeached upon a collateral issue, is not whether the alleged inconsistent statement elsewhere would be admissible as evidence in chief against the party offering the witness; the question being one of relevancy. 5. WITNESSES 270(1)-RELEVANCY OF EVIDENCE ON CROSS-EXAMINATION. Questions asked a witness on cross-examnation are relevant when the answers may affect any fact in issue. 6. WITNESSES 383-IMPEACHMENT BY CONTRADICTORY STATEMENTS. If an answer is relevant to material testimony given by the witness, it is not collateral, but can be contradicted and affords a basis for impeachment. 7. WITNESSES 383-RELEVANCY OF TESTIMONY OFFERED IN IMPEACHMENT. In an action for assault and battery, where chastity was made an issue on the question of damages, and plaintiff's husband testified that a certain child was his, question put to such husband on cross-examination as to whether he had not stated the child was not his would, if answered in a certain way, have contradicted his testimony so as to show that plaintiff was not chaste, and afforded basis of impeachment by contradictory statements. 8. APPEAL AND ERROR 1060(2) - PREJUDICIAL ERROR IN CONDUCT OF COUNSEL ON CROSS-EXAMINATION. TO ASSAULT UNNECESSARY IN ABSENCE OF EVIDENCE. In an action for assault and battery, where plaintiff testified to an assault amounting to rape and defendant denied having or soliciting sexual intercourse with her, or even having touched her person, a request for a charge on the question of consent was properly refused. 10. ASSAULT AND BATTERY 39-EXEMPLARY TAYLOR, J. This is an action of tort for assault and battery. Trial was by jury with verdict and judgment for the plaintiff. The case is here on defendant's exceptions. The plaintiff and her husband are Polish people, natives of Austria, and at the time in question residents of Guilford in this state. Her evidence tended to show that the defend ant came to her house during the husband's absence and committed rape upon her. The character of the plaintiff for chastity was made an issue in the case on the question of damages. The defendant supported his claim in this regard by testimony of an admission by the plaintiff that she had a child left behind in Austria when she came to this country of which her husband was not the father. She denied the claimed admission and testified to the legitimacy of the child. She called her husband as a witness and he gave evidence tending to support her claim in this regard. In cross-examination Niebyski was asked if he did not tell one Tkorczyk, a fellow countryman, that the child in Austria was not his and that was the reason why In a civil action for assault, it was prejuIn a civil action for assault, it was prejudicial error for plaintiff's attorney on crossexamination of defendant to ask whether he had not hired men to falsely testify in a rape case, where the court had just ruled against him on a similar question, and said nothing by way he would not take it to America; and, again, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes if he did not tell Tkorczyk that his wife was about two months along with child when he got back to Austria. Niebyski denied making any such statements. The defendant called Tkorczyk, and for the purpose of impeaching Niebyski offered to show by the witness that he had heard Niebyski say that his wife (the plaintiff) had a child which was left in Austria that did not belong to him. The offered evidence was excluded on the objection that it was immaterial and irrelevant, and the defendant had an exception thereto. The situation was somewhat clouded by what had preceded the ruling excepted to; but we think it sufficiently appears that the court ruled understandingly, in effect holding that it would be impeachment upon a collateral and immaterial issue. the ruling, it will be presumed that it shows the full scope and point of the exception. See Comstock's Adm'r v. Jacobs, 84 Vt. 277, 283, 78 Atl. 1017, Ann. Cas. 1913A, 679. [3-6] The plaintiff also insists that it was an attempt to impeach the witness upon a collateral and immaterial issue. The argument is that, if Niebyski made the statement out of court that the offer imports, it would not be admissible evidence against the plaintiff. The rule governing impeachment by self-contradiction requires something more than the mere contradiction of testimony given by the witness in direct examination. it is well settled that a witness cannot be impeached upon a collateral issue, but there is considerable conflict in the cases as to when an issue is collateral within the rule. [1] It is now for the first time objected that Manifestly, the test is not whether the althe necessary foundation for impeachment leged statement elsewhere would be admiswas not laid. The plaintiff does not even sible as evidence in chief against the party now attempt to point out wherein the short-improving the witness. The question is one age exists, but refers us generally to Nieby- of relevancy (Perry v. Moore, 66 Vt. 519, 29 ski's cross-examination on the subject. In- Atl. 806), and questions asked a witness on spection of the portion of the transcript re- cross-examination are relevant when the anferred to discloses that the only possible fault swers may affect any fact in issue. Fairwith the foundation attempted was in not child v. Northeastern Mut. Life Ass'n, 51 Vt. designating the time and place with suffi- 613, 627. A test whether an answer sought to cient particularity. With us the general rule be contradicted for the purpose of impeachof practice in laying the foundation for im- ment is collateral or not was laid down by peachment by proof of inconsistent state- Chief Baron Pollock in Attorney General v. ments out of court requires that they Hitchcock, 1 Exch. 91, and approved by this should first be called to the witness' attention court in Comstock's Adm'r v. Jacobs, 84 Vt. and the circumstances of the supposed state- 277, 283, 78 Atl. 1017, Ann. Cas. 1913A, 679. ment referred to sufficiently to give reason- It is this: If the answer of a witness is a able notice of the occasion. The specification matter which has such a connection with the of time, place, and person is required merely issue that you would be allowed to give it in to insure fairness and as a means of ade-evidence, then it is a matter on which you quately warning the witness so as to afford may contradict him. Prof. Wigmore parahim reasonable opportunity for explanation. phrases it thus: It is for the trial court, in the exercise of "The test is whether it (the answer) consound discretion to determine whether this cerns a matter which you would be allowed has been done in the particular case. State on your part to prove in evidence independentv. Glynn, 51 Vt. 577, 579; 2 Wig. on Ev. §ly of the self-contradiction; i. e., if the witness 1029. It was said in the case cited that to had said nothing on the subject." 2 Wig. on insure fair dealing some witnesses would re- Ev. § 1020. quire the protection thus afforded, while with others it would be needless. [2] It would be inconsistent with what the record discloses to infer in support of the ruling that the court excluded the offered evidence on this ground. It is nowhere hinted by court or counsel that the foundation for impeachment was not well laid. The objection urged when Niebyski was being inquired of was that it was an immaterial issue. The objection was renewed when a question relating to the same matter was put to the impeaching witness. The court said: "That is not admissible, of course." Thereupon the offer was made and the objection that it was immaterial and irrelevant was sustained without anything further being said. As the transcript, which is made the In explanation of the test, Chief Baron Pollock says that the answer to be contradicted "must be connected with the issue as a matter capable of being distinctly given in evidence, or it must be so far connected with it as to be a matter which, if answered in a particular way, would contradict a part of the witness' testimony; and, if it is neither the one nor the other of these, it is collateral to, though in some sense it may be considered as connected with, the subject of the inquiry.' It comes to this then: If the answer is relevant to material testimony given by the witness, it is not collateral, but can be contradicted and affords the basis of impeachment. See Fairchild v. Northeastern Mut. Life Ass'n, supra; note Ann. Cas. 1914B, 112. (108 A.) put to Niebyski in cross-examination, "if an- [ upon the minds of the jury. Whatever may swered in a particular way," would contradict his testimony to the effect that the child was his, which was a material issue in the case. It follows that the offered statement was admissible for the purpose of impeachment, and that its exclusion was error. The defendant was a witness in his own behalf. In cross-examination plaintiff's attorney without objection developed the fact that some years before he had been arrested and tried at Greenfield, Mass., on the charge of rape, in no way connected with this transaction, resulting in his acquittal. He was then asked: "Because some men from Turner's Falls testified upon that trial that you were there at the time?" On objection the question was excluded. Immediately, this question was asked: "And after that trial was over at your home here in Guilford in conversation with some of your associates there, and in the presence of your wife, but not talking to her, you made your brags that you had raped that woman and that you hired those men to testify as they did, did you not?" Defendant's counsel interrupted with an objection, and asked for and was allowed an exception to the propounding of the question. The court at the same time directed that an exception be noted for the plaintiff to the exclusion of the question and said nothing by way of rebuke or caution. have been the motive that prompted the inquiry, we cannot believe that it was done through ignorance or inexperience. The examiner was a lawyer of mature years and of large experience in jury trials, and the court had just ruled against him on a similar question. We are forced to the conclusion that he momentarily let his zeal outrun his better judgment. But the defendant has suffered thereby, and the only relief we can afford him is the benefit of a new trial. We hold that in the circumstances the asking of the question was reversible error. [9] The defendant excepted "to the refusal or neglect of the court to charge that, if there was any sexual intercourse shown and plaintiff consented, there would be no assault of any kind, and the verdict should be for the defendant." This exception is without merit. The question of consent was not an issue in the case. The plaintiff testified to an assault amounting to rape. The defendant denied having or soliciting sexual intercourse with her, or even having touched her there was no occasion for a charge on the person. With the evidence standing thus, question of consent. [10, 11] The defendant, by a further exception to the charge, challenges the allowance of exemplary damages in this action as a violation of articles 5, 13, and 14 of the amendments to the Constitution of the United States and article 2, c. 1, of our own Consti tution. The foundation of exemplary damages is too firmly imbedded in the common law as [8] The question was manifestly improper, but plaintiff insists that, as it was not answered, reversible error is not shown, invok-interpreted by the decisions of this court ing the rule that a judgment will not be reversed merely because an improper question is asked. While such is undoubtedly the general rule, it has its exceptions. That it is in some circumstances reversible error to persist in offering evidence that has been ruled out is shown by State v. Felch, 92 Vt. 479, 105 Atl. 23, and Rudd v. Rounds, 64 Vt. 432, 25 Atl. 438. It was said in the former case that much depends upon the character and importance of the offered evidence and the good or bad faith of counsel, whether an offense of this kind requires a reversal; and that each case must be judged on its own circumstances. The question was well calculated to prejudice the rights of the defendant seriously, and nothing was done to counteract its effect to be now disturbed; and, in view of the attention that it has already received, it would be of little profit to re-examine the question. The defendant's objections to the allowance of such damages are fully answered in Earl v. Tupper, 45 Vt. 275, Hoad(ley v. Watson, 45 Vt. 289, 12 Am. Rep. 197, and Edwards v. Leavitt, 46 Vt. 126. He lays great stress upon Fay v. Parker, 53 N. H. 342, 16 Am. Rep. 270, the argument and conclusion of which is favorable to his contention. But this case, then lately decided, was brought to the attention of the court on the hearing in Edwards v. Leavitt and doubtless received adequate consideration. Judgment reversed, and cause remanded. HASELTON, J., did not sit. (93 Vt. 466) tiff regarding this sugar on July 27, 1917, FARMERS' EXCHANGE v. WALTER M. and its letter of that date authorized the LOWNEY CO. et al.1 (No. 171.) plaintiff to bill the same direct to the defendant, crediting the company with its prof (Supreme Court of Vermont. Franklin. Oct. it. To this letter the plaintiff replied, quot9, 1919.) PRINCIPAL AND AGENT 23 (5) EVIDENCE OF AGENCY IN CONTRACT OF SALE. In an action based upon failure to pay for a shipment of maple sugar ordered by a third party from plaintiff, to be consigned to defendant with whom the third party had, previously to the negotiations with plaintiff, contracted for the purchase of sugar, evidence held insufficient to sustain a finding that the third party acted as plaintiff's agent, who was then an undisclosed principal. ing a price, and, in effect, agreeing to ship the sugar to the defendant on the company's order, to bill it to and make draft on the de fendant, and to send the company a check for its profit when the draft was paid. The sugar was ordered by the New York Company and shipped by the plaintiff to the defendant accordingly. The plaintiff sent to the defendant the bills of lading, together with bills for the sugar; it charged the same to the defendant on its books; and it credited to the sugar company the difference between its own price and what the defendant Exceptions from Franklin County Court; was to pay. In due time, the defendant paid Fred M. Butler, Judge. Action by Farmers' Exchange against Walter M. Lowney Company and trustees upon a contract. Judgment for plaintiff, and defendants except. Reversed and remanded. Argued before WATSON, C. J., and POWERS, TAYLOR, MILES, and SLACK, JJ. C. G. Austin & Sons, of St. Albans, and Warren R. Austin, of Burlington, for plaintiff. the sugar company for the sugar at the price agreed upon with it. The court below found the fact to be that in these transactions the sugar company acted as the agent of the plaintiff, who was then an undisclosed principal; that the defendant knew nothing of this agency until it received the bills above referred to; and that it then and thereafter, until payment as above, only had such knowledge of the agency as it received, or ought to have received, therefrom Harry C. Shurtleff, of Montpelier, for de- and certain correspondence that followed. fendants. POWERS, J. This suit results from the shipment to the defendant by the plaintiff of two lots of maple sugar on orders given by the Vermont Maple Sugar & Syrup Company, a concern doing business in the city of New York. The plaintiff had judgment below on facts found by the court, and the defendant argues here only exceptions taken to the findings and to the judgment. On or about July 18, 1917, the defendant closed a trade with this sugar company for the purchase of the two lots of sugar above referred to. By the terms of this contract, the first lot of four tons was to be delivered at once. The other lot, a carload, was to be delivered later on defendant's order. The sugar company obtained the four tons from a concern in Lowville, N. Y., and it was delivered from that point, though on account of delay in shipment the sugar company also directed the plaintiff to send the defendant a like amount, which was done. The sugar company opened negotiations with the plain 1 When this case was originally argued it was assigned to Mr. Justice Haselton. Upon his retirement from the bench, the case, being ordered for reargument, was assigned to Mr. Justice Powers. While it sufficiently appears that the sugar company was not in any general sense an agent of the plaintiff, but was a dealer wholly independent of it, it was, of course, competent for those parties to enter into a special arrangement with reference to a particular deal which would result in making the former, pro hac vice, the agent of the latter. As we have seen, however, the contract between the defendant and the sugar company preceded any arrangement between the sugar company and the plaintiff. The firstnamed contract was made and completed, and the rights of the parties thereto became fixed and vested long enough before the alleged agency was created. This being so, no arrangement entered into between the sugar company and the plaintiff alone could relate back to affect the status of the former when, acting for itself, if dealt with the defendant. For want of supporting evidence, the exception to the finding of agency is sustained. Without this finding, the judgment cannot stand, and will have to be reversed. Whether the plaintiff can recover on the theory of equitable assignment or otherwise are questions not litigated or considered. Reversed and remanded. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (93 Vt. 404) (108 A.) In re HAYWARD'S ESTATE,1 Appeal of LUCIA (No. 159.) (Supreme Court of Vermont. Addison. Oct. 7, 1919.) town of Bridport during her natural life. After making specific bequests of $1,000 each to five benevolent societies, he provided for his only daughter as follows: "The rest, residue and remainder of all my estate both real and personal I give to my daughter, Emma C. Eldridge, during her natural life, and if she should die leaving no chil 1. WILLS 616(6)—LIFE ESTATE WITH LIM- dren, it is my will that her share of my estate The executor of the will proceeded to settle the estate, and in 1886 petitioned the probate court for permission to sell the Bridport real estate "for the purpose of putting the avails of said estate in the hands of a trustee." Mrs. Hayward, Mrs. Eldridge, and all other parties in interest joined in the petition, and formally consented to the sale. The petition was granted, the real estate sold, and Mr. Lucia appointed trustee of the avails. Mrs. Hayward died in 1899. In Exceptions from Addison County Court; September, 1903, the trustee filed an invenZed S. Stanton, Judge. In the matter of the Estate of Charles N. Hayward, deceased. A probate decree on settlement of the account by J. H. Lucia, as trustee of a fund created by the will, was affirmed by the county court, and the trustee's administratrix excepted. Affirmed. Argued before WATSON, C. J., and POW. ERS, TAYLOR, MILES, and SLACK, JJ. Edward H. Deavitt, of Montpelier, for appellant. Joseph Fairbanks, Porter, Witters & Harvey, and Samuel E. Richardson, all of St. Johnsbury, for appellee. TAYLOR, J. This is an appeal from a decree of the probate court for the district of Addison upon the settlement of the account of J. H. Lucia as trustee of a fund created under the will of Charles N. Hayward. The decree charged the trustee with the full amount of the principal of the trust fund, and disallowed the major part of his claimed credits. On appeal the county court affirmed the decree, and the appellant brings the case here on exceptions to this judgment. Charles N. Hayward, in life a resident of Bridport, Vt., died testate in 1874. By his will he gave to his widow, Susan E. Hayward, the use of all his real estate in the 1 When this case was originally argued it was as"signed to Mr. Justice Haselton. Upon his retirement from the bench, the case, being ordered for reargument, was assigned to Mr. Justice Taylor. tory in which he gave the amount of the fund as $5,000, after deducting from the avails of the sale $250, which included the expenses of the sale, his services and expenses as trustee to date, and $100, "allowed Mrs. Eldridge." Shortly after the sale the trustee loaned the proceeds to Mrs. Hay Ward, taking her note therefor without in terest, secured by a trust deed of land in Colorado. The court finds that the trust fund has remained invested on the security of this mortgage deed of trust since May 10, 1887, and that Mr. Lucia's estate has not in its possession, and has not had, any part of the fund except as represented by said deed of trust. Mrs. Eldridge is in possession of the mortgaged real estate. In 1904 Mrs. Eldridge preferred a petition to the probate court, in which she alleged that all or a substantial portion of the trust fund was required for her support and comfort under the will, but that the trustee declined to turn over any portion thereof to her without the order and direction of the court, and asked that the court order the fund or a portion thereof applied to her support and comfort. This petition was dismissed by the probate court, appealed to the county court by the petitioner, and there dismissed without prejudice. In December, 1914, Mrs. Eldridge brought a similar petition to the probate court, in which she alleged, among other things, that the funds arising from the sale of the real estate were in the hands of Mr. Lucia as trustee to the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |