Clark v. Reese

By the Court, Rhodes, J.: The defendant cannot avail himself of the alleged error of the Court in compelling the witness Lincoln to answer the question propounded to him by the plaintiff’s counsel after his refusal to answer, on the ground that his reply would degrade and disgrace him. The privilege of refusing to answer is personal to the witness, and is not in any sense the privilege of the party calling him. Mr. Chief Justice Nelson, in Cloyes v. Thayer, 3 Hill, 564, says: “ If ordered to testify in a case where he is privileged, it is a matter exclusively between the Court and the witness. The latter may stand out and be committed for contempt, or he may submit; but the party has no right to interfere or complain of the error. It would be otherwise if the Court allowed the privilege in a ease where the witness had not brought himself within the rule, as the party would then be improperly deprived of his [96]testimony.” (See, also, Ward v. People, 6 Hill, 144; 2 Phil, on Ev., C. H. & E. Notes, 935.)

The action of the Court is sustainable on another ground. The matter to which the question of the plaintiff’s counsel related was alleged in the defendant’s answer, and was thus a fact in issue. It is provided by section four hundred and eight of the Practice Act that a witness need not “give an answer which will have a direct tendency to degrade his character, unless it be to the very fact in issue, or t# a fact from which the fact in issue would be presumed.” His privilege, therefore, would not shield him from answering the question.

When the defendant became a witness in his own behalf he subjected himself to all the rules regulating the examination and cross examination of witnesses. His privilege was no greater than that of any other witness. He dropped, for the time being, the character of a party, and took on that of a witness. On the cross examination the plaintiff’s counsel asked him this question: “Did you ever call Mrs. Clark your ‘Dear Carrie,’ or your ‘Dear Child?’ ” To which he replied: “I refuse to answer; when a man takes personal liberties with a woman, he should not come on the stand and swear to it.” Ho one hearing this remark could doubt that he meant to be understood as having taken personal liberties with the plaintiff'. The counsel then asked him: “ Did you ever take improper liberties with Mrs. Clark?” And, after the witness stated that he did not understand the question, it was put in unmistakable language. The witness declined to answer, and the Court held that he must answer or be committed for contempt; and afterwards, on motion of the plaintiff’s counsel, it was held that if the question was not answered the plaintiff would be entitled to have the defendant’s answer to the complaint stricken from the files, and to take judgment in accordance with the prayer of the complaint. Thereupon the defendant answered the question in the affirmative.