John Ruemer, Respondent, v. Margaret A. Clark, Appellant

John Ruemer, Respondent, v. Margaret A. Clark, Appellant. Second Department, July 23, 1907. Evidence — prior injury. When, in an action for personal injuries alleged to have caused a rupture, the plaintiff has testified that prior to the accident he never had any trouble with his groin, it is error to exclude, under a general objection, a question asked of the plaintiff’s wife on cross-examination as to whether the plaintiff in a prior suit against another defendant had not claimed to have been ruptured. If such objection were based upon the contention that the complaint was the best evidence, the fault might have been remedied had the objection been ■ specific. Moreover, the question did not call for the contents of the complaint, but for the statement of a party in a court where the pleadings could be oral. The rule that such evidence is not admissible unless the attention of the witness sought to be discredited is called to the declaration does not apply when that witness is a party^ Moreover, when the plaintiff’s wife has testified that, he did not have an injury before the accident, the evidence is admissible as bearing upon her credibility. Appeal by the defendant, Mai'gafet A, Clark, from a judgment of the Supreme Court in favor of the plaintiff, entered upon the verdict of a jury, and also from an order denying the deféndant’s motion for a new trial. Henry F. Cochrane, for the appellant. Charles C. Clark, for the respondent. [MAJORITY — Jenks, J.:] Jenks, J.: The action is for negligence. The plaintiff has recovered a substantial verdict. The injuries alleged and covered by the testimony included an inguinal hernia. The plaintiff upon liis direct examination testified that he “ never had anything in his groin before the accident; ” that he “ never had any trouble with his groin.” Upon the defendant’s cross-examination of the plaintiff’s wife she was asked : “ Q. I will ask you if your husband didn’t bring suit against Sfcutts, the' butcher, in the year 1898, in which he claimed to.be ruptured also ? [Objected to. Objection sustained and exception taken.] ” If the plaintiff prior to the accident had asserted that lie was suffering from hernia I think it was competent to prove such declarations on the theory that they might be regarded as inconsistent with his present testimony. The objection was general. The rule that such evidence is not admissible unless the attention of the witness sought, to be discredited is called to the declaration, does not apply when that witness is a party. (Blossom v. Barrett, 37 N. Y. 438.) If the objection was based upon the contention that the question did not call for the best evidence, i. for the complaint itself, it seems to me that the answer is that if that fault had been specified it might have been obviated. (Height v. People, 50 N. Y. 392.) Moreover, the question did not call for the contents of the complaint as such, but simply for a statement of the witness which at most was made in writing. Non 'constat that the complaint was in a court wherein the pleadings could be oral. I think that the evidence was relevant for another reason. As the witness had testified on her direct examination that her husband before, this accident never had a knot in "his groin or any trouble in his groin or had ever worn a truss, the question excluded bore upon her credibility. ■Tf the question was admissible it cannot be gainsaid that it was material; indeed, the final and successful request of the plaintiff’s counsel was for an instruction that the defendant had produced no testimony of any inquiry of the plaintiff from any other source or of any accident which would cause or tend to cause a rupture, except the accident in question. I advise a reversal and the granting of a new trial. Gaynor, Rich and Miller, JJ., concurred; Hooker, J., dissented. Judgment reversed and new trial granted, costs to abide the event.