Chadbourn v. Franklin , 71 Mass. 312 ( 1855 )

Shaw, C. J.

The first exception is founded on the rule, that each party, in his turn to offer evidence, shall offer the whole which is pertinent, and which he means to offer, on any one point of his case. This is a salutary rule, and tends to secure regularity and fair dealing in the conduct of trials, by giving the adverse party notice of'the strength of the case which he has to meet. But the propriety of its application in each particular case depends so. much upon the circumstances of each case, and the actual state of the proof at the time it is offered, that it must be left almost entirely to the judge conducting the trial to say whether it shall be permitted at that stage.

It sometimes occurs that the evidence on reexamination would have been pertinent as original evidence, in part, and is in part strictly rebutting. This case affords an instance. The controverted fact in this case was, whether the defendant with his carriage, at the time of the collision, kept to the right side of the road. It was important, if not essential to the plaintiff’s case, to prove that the defendant did not so keep to the right of the middle line of the travelled road; and the plaintiff had given evidence to that effect. Then the two witnesses were called by the defendant, who testified strongly to the contrary, and stated a variety of circumstances in corroboration. Then the plaintiff called the witnesses who were objected to tin the ground that they should have been examined in chief; their evidence tended to show that neither Divoll nor Folsom was at the place, at the time, or under the circumstances stated 'by them. This tended to contradict them in a material point, to show that they could not know what they had testified they did know. In this respect, it was strictly competent in rebuttal, but would have been impertinent in the plaintiff’s evidence in chief. They testified to various other facts; for instance, the actual distance of the plaintiff’s chaise from the right hand sidewalk, which, whilst it directly contradicted the defendant’s witnesses* did also bear upon the general question, whether each kept to his own right, or which violated that rule, and therefore might have been received with the plaintiff’s other evidence in chief. But as it might not have been necessary to the plaintiff’s original case, especially if the witnesses in question had not been examined by the defendant, and it was peculiarly pertinent in rebuttal, it was quite within the discretion of the judge to admit it.

Indeed the eases are so numerous, in which justice requires that proof be received out of the usual and regular course, that it is necessary that the mode of conducting the trial, and the cases in which evidence may be received out of what is regarded as the usual and regular course, should be determined by the judge at the trial. Commonwealth v. Moulton, l Gray, 39. Morse v. Potter, 4 Gray, 292.

2. Upon the other point, the modern practice has been uniform, not to entertain a motion to set aside a verdict on the ground of error, mistake, irregularity or misconduct of the jury, or any of them, on the testimony of one or more jurors; and it rests, we think, on sound considerations of public policy. Hannum v. Belchertown, 19 Pick. 313. Murdock v. Sumner, 22 Pick. 357. Cook v. Castner, 9 Cush. 278. Folsom v. Manchester, 11 Cush. 334. Boston & Worcester Railroad Co. v. Dana, 1 Gray, 105. 1 Greenl. Ev. § 252 a.

Exceptions overruled.