the court should inquire into the circumstances of the violation to determine if the witness acted upon the advice, or in collusion with the litigant
How later courts described this case
- the court should inquire into the circumstances of the violation to determine if the witness acted upon the advice, or in collusion with the litigant
Written by the judges who cited it.
The opinion
Mr. Justice Robb
dissenting:
The explosion was on October 6, 1910, and in boiler No. 4. It was stipulated by counsel for the respective parties that this boiler “was taken out of service June 30, 1910, and put back in service September 19, 1910.” The question therefore was whether this boiler, when put back in service, was in proper condition. Whatever the custom or rule of the District may have been, for custom is nothing more than a rule, it was entirely immaterial in my view, unless that custom or rule was adhered to in the present case. In other words, the witness should have been asked to state how often in fact the boilers were put out of service and cleaned. It is significant that this question was not asked. That the court’s ruling was based upon the form of the question is apparent from what followed, for the same witness was permitted to testify that during the time boiler No. 4 was out of commission, that is from June 30 to September 19, 1910, “six boilers, each of them having ninety tubes, had been put out of commission,” for the purpose, of course, of be *78 ing cleaned. It is inconceivable that counsel for tbe District should have failed to understand that they would be permitted to show, as a matter of fact, when and how often boilers were put out of commission for the purpose of being cleaned- It is apparent, I think, that, had the witness been permitted to answer the question as propounded, his. answer might have been very misleading, for the custom or rule may have been, and probably was, violated in this case, and perhaps in others.
Little need be said as to the second question. Counsel for the District in the argument at bar asserted that the presence of the witness Bradshaw in the court room was necessary to assist them in the defense. There is not a line in the record to indicate that any effort was made to obtain the consent of the court to have this witness present, and, in view of the ruling excluding his testimony, we must assume that the court found that the presence of the witness was not only in violation of its order, but that counsel for the District were not entirely blameless in the matter. Witnesses were excluded in the interest of justice, and to permit one party knowingly to disobey the order of exclusion, and then take advantage of that disobedience, would militate against the authority of the court and be subversive of justice. The judgment below should be affirmed.
Thereafter the appellee moved for a rehearing suggesting a diminution of the record and applying for a writ of certiorari to the lower court. On April 28, 1914, the motion for a rehearing and the application for the writ of certiorari were denied.