The prevailing opinion appears to me to subvert a well-settled legal rule of evidence in holding that a question put to a witness on cross-examination, so long as the question relates to an issue in the cause, though no foundation was laid for asking the question on direct examination, is a matter of right.
The case of Prout v. Bernards Land and Sand Co.,77 N.J.L. 719, decided by this court, is relied on as sustaining this view. A fair reading of the case, however, discloses that this court decided that where a party in interest is a witness (one of the plaintiffs in that case) he may be cross-examined, as a matter of right, on all the issues in the case, even though there was no basis laid for the same on direct examination.
The cases cited in the opinion in support of this declaration were all cases which dealt with the examination of a party in interest, either as plaintiff or defendant, except the case ofLangley v. Wadsworth, 99 N.Y. 61, which decided: *Page 370 "When cross-examination is only to test the accuracy or credibility of the witness, its method and duration are subject to the discretion of the court, and, unless the exercise of this discretion is abused, is not the subject of review."
The syllabus of the Prout case is broader than was warranted by the precise question which was presented and decided by this court.
There is a marked and substantial difference in the application of the rule of evidence invoked between a cross-examination of a party in interest and a witness produced on behalf of such party. In the former case the plaintiff or defendant, as the case may be, can be properly cross-examined on any or all the issues, irrespective of the fact whether or not he had been examined in chief in relation thereto. In the latter case a witness called on behalf of either cannot. The distinction between the two situations is a well-recognized one, founded in good sense, and has received the sanction of the text-writers on evidence, of skilled and eminent judges and of able and skilled trial lawyers.
It must be borne in mind that the distinction to be drawn between the two variant instances, regarding the application of the rule, as above marked out, was not the product of a day or a year, but was of slow growth, evolved from long experience, in the trial of causes, of learned and eminent judges, wherever the English common law was in force.
To adopt the rule as laid down in the prevailing opinion is to strike a blow at the orderly administration of the trial of causes between litigants.
Both bench and bar are familiar with the circumstance that frequently it becomes necessary to call a witness for the adverse party to establish some fact essential to the plaintiff's or the defendant's case. According to the broad rule of the prevailing opinion, if a plaintiff calls a witness for the adverse party and asks him questions limited to proving some essential fact necessary for the plaintiff to establish, the defendant may cross-examine such witness on any of the other issues of the case. Now, it is quite manifest what such a course of procedure would lead to. The principal evil that *Page 371 suggests itself is, that the defendant would thereby be permitted to put in his defense on the plaintiff's case, confuse the issues being tried, and thus materially and prejudicially interfere with the proper presentation of the plaintiff's case. This alone is sufficient to condemn a rule of evidence which will work such a chaotic condition and injustice. The case of Davenport v.Patteson, 98 N.J.L. 65, referred to in the majority opinion as supporting its view, was a case in which the plaintiff was being cross-examined. The other case of Fahr v. New York,Susquehanna and Western Railroad Co., 72 Atl. Rep. 69, also relied on for the same purpose, shows, from a plain reading of it, that the direct examination of the witness laid a foundation for the questions put on the cross-examination, and which were manifestly improperly overruled by the court.
But in the case sub judice neither of these conditions was present. The question put to the medical witness whether the plaintiff had paralysis agitans was elicited on cross-examination by defendant's counsel, for which no foundation was laid in the examination in chief, and the witness having answered that the plaintiff did not have that disease, counsel for defendant undertook to further cross-examine the witness to elicit the grounds of his belief.
According to the record this is what occurred: Objection by plaintiff's counsel was interposed to the question upon the ground that the plaintiff had not introduced any evidence of any such disease. Counsel for defendant insisted upon his right to ask the question, and plaintiff's counsel apparently consented that he might, in these words: "If he makes him his own witness." This, manifestly, defendant's counsel declined to do, so the trial judge overruled the question, to which ruling an exception was taken.
Now, it seems to me that the effect of this ruling was not a denial of the right to seek the information from the witness suggested by the question, for, on the contrary, the right was conceded, but the legal propriety of injecting this new matter on cross-examination was denied, unless the defendant chose to make the witness his own. It is therefore difficult to comprehend *Page 372 upon what sound theory it can be properly said that the defendant was denied a legal right to obtain the information which he sought. For, even if defendant's counsel had consented to make the witness his own, and had asked the medical expert, as he did, what marked and familiar symptom of paralysis agitans was there which did not exist in the plaintiff's case, and the doctor had answered there was none or that there was one, neither answer would have precluded the defendant from introducing, on the defense, medical testimony that the symptoms given by the medical expert on part of the plaintiff indicate the disease of paralysis agitans.
It is a familiar rule of evidence that the order of proof is within the control of the court and rests largely in its sound discretion and is not subject to review, unless it clearly appears that there was an abuse of such discretion prejudicial to the litigant.
But assuming that the question was improperly overruled, I concur with the view expressed in the opinion of the Supreme Court that the exclusion of the proposed inquiry was harmless. There is no rule more firmly settled in this state than the rule that a judgment will not be reversed unless the error complained of clearly tended to prejudice the party complaining on the merits of the case. The reason suggested by the learned author of the majority opinion why the exclusion of the question was harmful, is that, if the witness had been permitted to answer the challenged question, it is proper to assume that the answer would have been that there were no other symptoms, and thus tend to lessen, or, perhaps, totally destroy the value of the witness' testimony that the tremor of hand and head, c., was due to the accident.
There is no warrant for any such assumption. The inference is purely of a conjectural and speculative nature. A fair reading of the doctor's testimony demonstrates that the cross-examiner sought from him a medical name of the disease which the symptoms given by him indicated. How that would have helped to accomplish the purpose suggested is incomprehensible to me. If the witness had answered that *Page 373 the symptoms pointed to paralysis agitans, in what respect that would have been helpful or enlightening to the jury, on the question of the measure of damages, is not apparent. For, if the nervous condition of the plaintiff was in a low state at the time he received his injury, as was testified to by the doctor, it would seem to me, by whatever name the nervous trouble was designated, that if the answer, attempted to be elicited by the overruled question, was answered as conjectured, it would have been, in the prevailing opinion, it would have tended to enhance the damages rather than to diminish them.
Moreover, it is a significant fact which ought not to be overlooked, that on the defense no medical expert was called to testify, what disease the symptoms brought out by defendant's counsel on cross-examination indicated, or to contradict any of the statements made by the plaintiff's medical witness.
For the reasons given I vote to affirm the judgment, with costs.
In Baus' appeal —
For affirmance — THE CHANCELLOR, TRENCHARD, KALISCH, LLOYD, CLARK, JJ. 5.
For reversal — PARKER, KATZENBACH, CAMPBELL, GARDNER, VAN BUSKIRK, McGLENNON, KAYS, JJ. 7.
In Meaney's appeal —
For affirmance — THE CHANCELLOR, TRENCHARD, PARKER, KALISCH, KATZENBACH, CAMPBELL, LLOYD, GARDNER, VAN BUSKIRK, CLARK, McGLENNON, KAYS, JJ. 12.
For reversal — None. *Page 374