McHugh v. McHugh

Opinion by

Mr. Justice Feel,

Three of the specifications of error relate to the admission of testimony to show that the defendant, before a former trial of the same issue, had attempted to procure false testimony and corruptly to influence the jurors. The action was to revive a judgment obtained against the defendant’s deceased husband, of whose will she was the executrix. The defense was accord and satisfaction. In rebuttal the plaintiff offered to prove by two witnesses that, before the first trial, the defendant had attempted to induce them to appear as witnesses for her and to testify falsely; and to prove by a third witness that the defendant had attempted to induce him to corrupt the jurors. These offers were sustained, and the witnesses were allowed to testify. The defendant had not testified at either trial.

The spoliation of papers and the destruction or withholding of evidence which a party ought to produce gives rise to a presumption unfavorable to him, as his conduct may properly be attributed to his supposed knowledge that the truth would operate against him. This principle has been applied in a great variety of cases, and it is now so well established that it is unnecessary to do more than state it. A somewhat extreme illustration of its application is found in Brown v. Schock, 77 Pa. 471, where the failure of a party to an action to appear at the trial, when he had a strong motive to appear, was said to be evidence against him. Those who have had experience in the trial of causes will assent to the statement of Thompson, C. J., in the opinion in Frick v. Barbour, 64 Pa. 120: “ The testimony of a case often consists in what is not proved as well as in what is proved.”

A like presumption arises where in connection with the trial testimony has been fabricated or witnesses suborned or a jury corruptly influenced, or where an attempt has been made to do any of these things. The conduct of the party may then be attributed to his knowledge that his cause was an unjust one. This rule is suggested in 1 Taylor on Evidence, sec. 116, and in 1 Greenleaf on Evidence (15th ed.), sec. 37 and sec. 196, and ,thus stated in 2 Wharton on Evidence (3d ed.), sec. 1265: “ . . . . proof of the forgery of false testimony is admissible against the party by whom the fabrication is made. The same presumption is drawn .... against all forms of attempted suppression of or tampering with evidence or subornation of witnesses.” And in Best on Evidence, sec. 411:“.... if it be shown that a plaintiff has been suborning false testimony, and has endeavored to have recourse to perjury, it is strong evidence that he knew perfectly well that his cause was an unrighteous one.” .

It is surprising that there are so few cases upon the subject, but there are some very high authorities upon the exact point raised. Moriarty v. L. C. & D. Railway Co., L. R. 5 Q. B. Cases, 314, was an action by a husband and wife against a railroad company for personal injuries to the wife caused by negligence. E vidence was admitted that the husband, who was not a witness, had offered to share with witnesses the compensation in the event of a recovery of damages. A rule for a new trial was made' absolute on the ground of surprise, but it was held that the testimony was properly admitted. It was said by Cocit-BUBN, C. J.: “I think this rule ought to be discharged so far as the ground taken that the evidence was improperly admitted. The conduct of a party to a cause may be of the highest importance in determining whether the cause of action in which he is plaintiff, or the ground of defense, if he is defendant, is honest and just; just as it is evidence against a prisoner that he has said one thing at one time and another at another, as showing that the recourse to falsehood leads fairly to an inference of guilt. Anything from which such an inference can be drawn is cogent and important evidence with a view to the issue. So, if you can show that a plaintiff has been suborning false testimony, and lias endeavored to have recourse to perjury, it is strong evidence that he knew perfectly well his cause was an unrighteous one.” In Egan v. Bowker, 87 Mass. 449, it was held that it was competent to prove that a party to an action had suborned a witness to swear falsely in a deposition taken in relation to the case, although the deposition had not been put in evidence by either party at the trial. The decision rests on the ground that a party would not support a fair claim by falsehood, and that when he has been guilty of fraud in the maintenance of the action, proof of the fraud is competent as an admission of the fraudulent nature of the claim. This case was approved in Hastings v. Stetson, 130 Mass. 76, in which testimony was admitted to show that the adverse party had attempted to bribe a juror at a former trial of the cause. In Chicago City Ry. Co. v. McMahon, 103 Ill. 485, an action for injuries resulting from negligence, a witness in the case was allowed to testify that he had been offered money by a clerk in the employ of the corporation defendant not to appear, or to influence his testimony. In Snell v. Bray, 56 Wis. 156, letters written by a party to third persons, warning them not to aid the other party by testifying or otherwise, and urging them to testify to a particular state of facts, were admitted, and it was said to be immaterial that they had been written before the action was commenced, if written aft-er the controversy had arisen. To the same effect is the case of Winchell v. Edwards, 57 Ill. 41. In Heslop v. Heslop, 82 Pa. 537, it was held not to be error to receive testimony to show the participation of the defendant in an attempt to corrupt the plaintiff’s witnesses; but it was said that the presumption arising from the misconduct of the party would not justify the jury in utterly disregarding the testimony which he had produced in support of this defense, although it should admonish them carefully to scrutinize it.

In some of these cases the reason given for the admission of the testimony is that it is an admission by conduct, and in others that it gives rise to a presumption, but the decisions all rest on the ground that evidence of the misconduct of a party in connection with the trial is admissible as tending to show that the party guilty of the misconduct is unwilling to rely on the truth of his cause, or is conscious that'it is an unjust one. The effect of such testimony may be to impeach witnesses by proof of misconduct with which they have had no connection, but the testimony of a witness is never exempt from scrutiny. The cause may be discredited while the witness is not, for an entirely honest piece of testimony may be part of a dishonest claim or defense.

It did not help the defendant’s position in objection to the testimony that she was defending as executrix, and acting in a representative capacity. As a beneficiary under her husband’s will she was in fact largely interested in the result of the litigation. But the effect of her conduct was the same whether she was acting for herself or for another. The same ground of objection to the admission of testimony to show an attempt to corrupt witnesses was taken in Moriarty v. L. C. & D. Ry. Co., supra, and it was said by Lush, J.: “ I also think no distinction can be made with reference to the character of the party suing; whether it is a representative character, or he is suing to enforce some right of his own. Either way the inference which the evidence tends to raise is the same, that the case is not a true one, and on that ground the evidence is receivable.”

There is nothing in the other assignments which need be considered. If there was any defect in the manner in which the defendant was brought upon the record, her voluntary appearance cured it.

The judgment is affirmed.