McDonald v. Price

PEEK, J.

This is an action for damages for wrongful death brought by the wife and minor child of the decedent. The case was tried before a jury which returned a verdict in favor of defendants.

Plaintiffs’ sole assignment of error relates to the prejudicial misconduct of defendants' counsel in asking a series of questions over plaintiffs’ objections with respect to criminal activities of the decedent some years prior to his death.

The particular matter complained of consisted of the following cross-examination of decedent’s wife by defendants’ counsel:

“Q. How long had you known your husband before your marriage? A. Three or four years.

“ Q. So you knew your husband, then, about back in 1940 ? A. Yes.

“Q. You knew, didn’t you, Mrs. McDonald, that your husband frequently indulged in intoxicants ? A. Yes.

“Q. And you knew that he had been arrested on many occasions for that, didn’t you? A. Yes.

“Q. Did you know that in April of 1937 he plead guilty to a charge of burglary and served six months in the road camp ? ’ ’

At this point plaintiffs’ counsel objected to the question as incompetent, irrelevant and immaterial, and as prejudicial

[152]

misconduct on the part of counsel. After some colloquy between various counsel and the court the objection was overruled and the witness answered “No.”

Counsel for defendants, continuing his questioning, then asked:

“Q. Your husband did not tell you that prior to your marriage? A. No.

“Q. Did you know that in May of 1939 he was charged with three counts of petty theft to which he plead guilty?”

The objection of counsel for plaintiffs again was overruled by the court, and again she answered “No.”

Nowhere in the record before this court does the truth of these assumed convictions appear. The only mention of them is in the questions asked by defendants’ counsel and there they are stated as matters of fact. However, neither proof nor offer of proof of such facts were made by counsel. Prom all that appears here the statements well might have been entirely a fiction of counsel’s imagination. The complete failure to prove such criminal convictions strongly indicates" a lack of good faith in asking the questions.