# Resurrection Gold Min. Co. v. Fortune Gold Min. Co.

> Court of Appeals for the Eighth Circuit · April 14, 1904 · 129 F. 668

URL: https://www.frixlaw.com/law-library/cases/8754211

## Case

- **Full name:** RESURRECTION GOLD MIN. CO. v. FORTUNE GOLD MIN. CO.
- **Court:** Court of Appeals for the Eighth Circuit
- **Decided:** April 14, 1904
- **Citations:** 129 F. 668; 64 C.C.A. 180; 1904 U.S. App. LEXIS 4084
- **Precedential status:** Published
- **Opinion:** Concurrence by Hook
- **Judges:** Hook, Sanborn, Thayer
- **Cited by:** 62 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

HOOK, Circuit Judge
(concurring). I concur in the result announced, and also in what is said in support thereof, excepting in one particular. I concur in the view that reversible error was committed in the *681 exclusion of the question propounded to the witness, McNeece on cross-examination. An authority directly in point is Eames v. Kaiser, 142 U. S. 488 , 12 Sup. Ct. 302, 35 L. Ed. 1091 . As applicable to this matter, it is said in the foregoing opinion that a fair and full cross-examination of a witness upon the subjects of his examination in chief is the absolute right, and not the mere privilege, of the party against whom he is called, and a denial of this right is a prejudicial and fatal error. To this I assent.
But it is also said:
“The converse of this rule is equally controlling. In the courts of the United States the party in whose behalf a witness is called has the right to restrict his cross-examination to the subjects of his direct examination, and a violation of this rule is reversible error.”
I am unable to agree that this is a correct statement of the law. The questions presented by the record in the case before us do not require any expression as to what is said to be the converse of the rule which is actually applied and enforced, but inasmuch as it appears in the foregoing opinion, and a similar difference of opinion arose in Balliet v. United States (decided at this term) 129 Fed. 689 , it is not inappropriate that my position in respect thereto be definitely stated.
It is undoubtedly the settled rule in the courts of the United States that the right of cross-examination of a witness is limited to the subjects of his direct examination. This rule finds adequate support in Railroad v. Stimpson, 14 Pet. 448, 461 , 10 L. Ed. 535 , and in Houghton v. Jones, 1 Wall. 702, 706 , 17 L. Ed. 503 . Moreover, with some few exceptions, the rule prevails in all of the states. But from this rule is deduced the conclusion, to which I am unable to assent, that, if a trial court fails to confine the cross-examination of a witness to matters concerning which he testified in his principal examination, prejudicial and fatal error is committed. The position of Judge THAYER and the writer of this, opinion is that, after a cross-examining party has been accorded all of his rights as limited by the rule of Railroad v. Stimpson and Houghton v. Jones, supra, whether the cross-examination may then take a wider scope or latitude is generally a matter within the sound discretion of the trial court, and error is not committed unless such discretion is abused. This position finds overwhelming support in the decisions of almost every court of last resort in the United States, in the views of the text-writers, in the everyday proceedings of trial courts, and in the general concurrence of the bar. That a trial court is given a broad discretion in controlling the latitude of a cross-examination has become an axiom of the practice. In the exercise of that discretion within its legitimate scope, no error, reversible or otherwise can be committed. It may not be said that a court is possessed of a discretion to commit error. The doing of whatever under the law it has the power to do or the discretion to do is not erroneous. Error may be successfully predicated upon an abuse of discretion, but not upon the reasonable exercise thereof. It may be safely asserted that, in nearly every case in which the rule that a cross-examination is limited to the subjects of the examination in chief is declared, the appellant was pressing for a latitude which the court in its discretion declined to allow, and that in most of the others there appeared to be such aw abuse *682 of discretion as constituted reversible error. It rarely happens that a reversal is awarded because of a mere latitude of cross-examination, if the subjects thereof were pertinent to the issues. That there is a broad field of discretion between the limits of the affirmative, positive rights of a cross-examining party on the one side, and the line of abuse and injustice upon the other is indisputable.
In Rea v. Missouri, 17 Wall. 532, 542 , 21 L. Ed. 707 , it was said:
“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 this discretion is not reviewable on writ of error.”
In Wills v. Russell, 100 U. S. 621, 626 , 25 L. Ed. 607 , the cases of Railroad v. Stimpson and Houghton v. Jones, supra, which hold that a cross-examination is limited to matters stated in the examination in chief, are cited and approved, but it is expressly said that they do not decide the converse of the proposition. The court, speaking through Mr. Justice Clifford, said:
“It has been twice so ruled by this court, and is undoubtedly a valuable rule of practice, and one well calculated to promote regularity and logical order in jury trials; but it is equally well settled by the same authorities that the mode of conducting trials, and the order of introducing evidence, and the time when it is to be introduced, are matters properly belonging very largely to the practice of the court where the matters of fact are tried by a jury. Both of the cases referred to by the plaintiffs show that the judgment will not be reversed merely because it appears that the rule limiting the cross-examination to the matters opened by the examination in chief was applied and enforced; but those cases do not decide the converse of the proposition, nor is attention called to any case where it is held that the judgment will be reversed because the court trying the issue of fact relaxed the rule and allowed the cross-examination to extend to other matters pertinent to the issue. Cases not infrequently arise where the convenience of the witness, or of the court, or the party producing the witness, will be promoted by a relaxation of the rule, to enable the witness to be discharged from further attendance; and, if the court in such a case should refuse to enforce the rule, it clearly would not be a ground of error, unless it appeared that it worked serious injury to the opposite party.”
In Davis v. Coblens, 174 U. S. 719, 726 , 19 Sup. Ct. 832, 835, 43 L. Ed. 1147 , it is said:
“Thereupon defendant’s counsel cross-examined him at great length, against the objection of plaintiffs, regarding his business of buying and selling real estate, and the extent of it and character. The ruling of the court permitting the cross-examination is assigned as error. We see no error in it. The question of plaintiffs’ counsel was a general one, and opened many things to particular inquiry. The extent and manner of that inquiry was necessarily within the discretion of the court, even though it extended to matters not connected with the examination in chief. In Rea v. Missouri, 17 Wall. 532 [ 21 L. Ed. 707 ], it was said: ‘Where the cross-examination is directed to matters not inquired about in the principal examination, its course and extent are 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.’ ”
In Homestake Min. Co. v. Fullerton, 69 Fed. 923 , 16 C. C. A. 545 , this court said:
“Trial courts should be allowed a liberal discretion in determining the latitude to be given to a cross-examination, and particularly in determining the form in which questions should be propounded to a witness which are simply *683 designed to impeach his credibility. We are not prepared to say, therefore, that the trial court exceeded its discretionary powers in sustaining the objection to the several questions above quoted.”
The doctrine was again referred to with approval by this court in Sauntry v. United States, 117 Fed. 132, 135 , 55 C. C. A. 148 .
In Seymour v. Lumber Co., 58 Fed. 957 , 7 C. C. A. 593 , it was said by the Circuit Court of Appeals of the Sixth Circuit:
“The course and extent of cross-examination, when directed to matters not inquired about in the principal examination, is very largely subject to the control of the court, in the exercise of a sound discretion, which is not reviewable on writ of error.”
As illustrative of another phase of the same doctrine, Judge Taft said, concerning the refusal of a trial court to allow a re-examination of a witness:
“This subject was collateral to the main issue, and largely within the discretion of the court.” Sutherland v. Round, 57 Fed. 407 , 6 C. G. A. 428.
In Hart v. Atlas Knitting Co., 77 Fed. 399 , 23 C. C. A. 198 , the Court of Appeals for the Second Circuit said:
“It is true that no issue was raised by the pleadings as to the cancellation of orders with other persons, but courts have universally recognized the necessity of leaving the course and extent of a cross-examination very largely to the discretion of the trial judge.”
The extent to which a witness may be cross-examined is within the discretion of the trial court, and it will' not be reviewed unless the discretion has been abused. Root v. Railway, 183 Mass. 418 , 67 N. E. 365 ; State v. Haab, 105 La. 230 , 29 South. 725 ; Pennsylvania Co. v. Newmeyer, 129 Ind. 401 , 28 N. E. 860 ; Hanchett v. Kimbark, 118 Ill. 129 , 7 N. E. 493 ; State v. Bunker, 7 S. D. 642, 65 N. W. 33 ; State v. Pfefferle, 36 Kan. 90 , 12 Pac. 406 ; Wroe v. State, 20 Ohio St. 460 ; Hanoff v. State, 37 Ohio St. 178 , 41 Am. Rep. 496 ; White v. McLean, 57 N. Y. 671 ; City v. Gavin, 182 Ill. 232 , 54 N. E. 1035 ; Lesser v. Furniture Co., 68 N. H. 343, 44 Atl. 490 .
The rule was interpreted by Mr. Justice Sharswood in Jackson v. Litch, 62 Pa. 455 , as follows:
“A party will not be permitted to lead out new matter, constituting his own case, by the cross-examination of his adversary’s witnesses. Ellmaker v. Buckley, 16 Serg. & R. 72; Floyd v. Bovard, 6 W. & S. 75 ; Mitchell v. Welch, 17 Pa. 339 [ 55 Am. Dec. 557 ]; Turner v. Reynolds, 23 Pa. 199 . Yet I have not been able to find a single case in which this court has reversed on that ground.' It has generally been considered as a matter within the sound discretion of the court below, and in Schnable v. Doughty, 3 Pa. 392 , though the Supreme Court thought that the rule had been violated, they distinctly refused to reverse. In Helser v. McGrath, 52 Pa. 531 , the present Chief Justice remarked: ‘These rules, as well as all others on the order of examination of witnesses and the introduction of testimony, have for their object the eliciting of truth, and the preservation of the equality of the rights of parties in trials in courts. Much, however, must still be left to the discretion of the judge. Neither the rule nor the exception must be allowed, if it can be prevented, unduly to prejudice the parties. The exercise of a prudent discretion by the judge is the only guard against this in many cases. Although we will not reverse in this case for an excess of latitude in the cross-examination, because we do not discover the injury from it, yet we think it was very great, and beyond the limits of the authorities generally. Doubtless the learned judge thought he saw the propriety of allowing it, and we *684 cannot say he was wrong, for we have not his means of judging.’ It may be concluded from these authorities that, in order to reverse, it must be an extreme case, in which discretion has been abused, and in which it is apparent that the party has been injured.”
This case was cited and the doctrine reaffirmed in Bohan v. Avoca, 154 Pa. 404 , 26 Atl. 604 .
It is said in the concurring opinion in Balliet v. United States, supra, that, if the rule limiting a cross-examination to the subjects of the examination in chief is relaxed or suspended when the trial court is of the opinion that it is necessary or convenient to do so, the rule is abrogated and ceases to be a rule at all; that such discretion is not committed to a court. But there are other rules in the law of evidence equally well settled, the rigid enforcement of which is by universal consent committed to the discretion of the trial courts. Thus in Ballew v. United States, 160 U. S. 187, 193 , 16 Sup. Ct. 263, 40 L. Ed. 388 , the court recognized and applied the well-known rule that a re-examination of a witness should be confined to matters to which the cross-examination related, and that an attempt to draw out new matter is, in the language of that court, clearly improper. 1 Greenleaf on Evidence, § 467. Though this is a recognized rule of the law of evidence, nevertheless all will agree that its suspension or relaxation in actual practice is almost as frequent as the administration of the oath to witnesses.
Again, it is a general' rule that leading questions on direct examination are not permissible. That rule was applied by this court in Parker v. Brown, 85 Fed. 595 , 29 C. C. A. 357 . But it was said by the Supreme Court in Railroad v. Urlin, 158 U. S. 271, 273 , 15 Sup. Ct. 840, 39 L. Ed. 977 , that the granting or refusal of permission to ask such questions is within the discretion of the trial court, and that there must appear a plain case of abuse of discretion in order to justify the claim that error was committed; and it was said by this court in Eli Mining & Land Co. v. Carleton, 108 Fed. 24 , 47 C. C. A. 166 , that an objection to a question as leading is “never regarded by an appellate court.”
It seems that the true theory is that these rules are intended primarily to limit the positive rights of the parties when engaged in the examination or cross-examination of witnesses, but are not intended to impose an unyielding limitation upon tue discretion of a court as exigencies arise during the progress of the trial'. By denying to trial courts a discretion in the enforcement of these rules — and I do not conceive that there is any difference between them which is material to the matter under discussion — we would add immeasurably to that great mass of technicalities which unfortunately encroach upon, and not infrequently entirely obstruct, the channels of justice. The object of all- evidence in courts of justice is that the truth may-be elicited, and this is of much more importance, than the mere order in which the evidence is adduced or the latitude allowed, in the examination of witnesses. I am of the opinion that when one of these rules of evidence is relaxed or suspended by a trial court, and its action in that regard is challenged on appeal, the appellate court does not proceed upon the assumption that reversible error was committed, but that, on the contrary, it is presumed that error was not committed, unless it clearly appears that the discretion of the trial court was abused.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8754211. Public record. Not legal advice.