Hall v. Widger

Per Curiam:

The judgment appealed from was entered upon a verdict awarding the plaintiff damages for an alleged assault committed by defendant upon plaintiff at her residence on the afternoon, of May 22, 1912. It was conceded upon the trial that earlier in the afternoon plaintiff, who had considerable dealings with defendant relative to house furnishings, called defendant by telephone and inquired if he had a charcoal flatiron. Defendant said he had not, but had a gasoline flatiron and would send it down. Within a half hour he took it to plaintiff’s rooms, adjusted it and showed plaintiff how to use it. It was immediately following this that the plaintiff claims the assault occurred. There were no other persons present at the time, although plaintiff says she told defendant that her sister was there in plaintiff’s rooms. The plaintiff does not claim to have suffered any physical injuries other than the nervous shock which accompanied defendant’s act of placing his hand on her arm, and making improper proposals. The defendant denied that he committed any assault or used any improper language.

Upon the cross-examination of the defendant the following appears in the record, the name of the woman and of her husband being omitted in this opinion: “Q. Do you know Mrs.-in Cortland ? [Objected to. Objection overruled. Exception.] A. Yes. Q. How long have you known her ? [Objected to as incompetent, inadmissible and improper. Objection overruled. Exception.] A. A year I think. Q. She lives where ? [Objected to as incompetent, improper and immaterial. Objection overruled. Exception.] A. She lives on Otter Creek Place, I think. Q. Her husband is-? [Objected to as incompetent, inadmissible and improper. Objection overruled. Exception.] A. I think his name is-. Q. You ever callón Mrs.-at her place? [Objected to as incompetent, immaterial and improper. Objection overruled. Exception.] Q. Did you ever call on Mrs.-at her house ? [Objected to as incompetent, inadmissible and improper. Objection overruled. Exception.] A. I called at their house, yes, sir. Q. Did you call on her ? A. 3STo, sir. Q. Who did you call on ? [Objected to as incompetent, inadmissible and improper. Objection overruled. Exception.] A. I called on Mr.-. Q. Eorwhat purpose? A. Collect bills. [Objected to on same grounds. Objection overruled. Exception.] Q. How often did you call there ? [Objected to on same grounds. Same ruling. Exception.] A. I called until I got my money. Q. Frequently? A. No, sir.”

Upon the direct examination of the defendant he was not questioned regarding this woman or her husband, and nowhere in the record do their names appear or any reference whatever to either of them. That the fact that this examination, which was clearly immaterial and improper, was considered prejudicial to the defendant, furnishes the only reasonable explanation for its being had. That its effect may have been to influence the verdict of some of the jurors is not at all improbable in view of the flat contradiction which existed between the testimony of the plaintiff and defendant. For error in the admission of this testimony the judgment must be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred, except Kellogg, J., dissenting in memorandum in which Smith, P. J., concurred.