THE CROSS-EXAMINATION OF RUSSELL SAGE BY MR. JOSEPH H. CHOATE IN THE
LAIDLAW-SAGE CASE
One of the most recent cross-examinations to be made the subject of
appeal to the Supreme Court General Term and the New York Court of
Appeals was the cross-examination of Russell Sage by Mr. Joseph H.
Choate, in the famous suit brought against the former by William R.
Laidlaw. Sage was defended by the late Edwin C. James, and Mr. Choate
appeared for the plaintiff, Mr. Laidlaw.
On the fourth day of December, 1891, a stranger by the name of Norcross
came to Russell Sage's New York office and sent a message to him that he
wanted to see him on important business, and that he had a letter of
introduction from Mr. John Rockefeller. Mr. Sage left his private
office, and going up to Norcross, was handed an open letter which read,
"This carpet-bag I hold in my hand contains ten pounds of dynamite, and
if I drop this bag on the floor it will destroy this building in ruins
and kill every human being in it. I demand twelve hundred thousand
dollars, or I will drop it. Will you give it? Yes or no?"
Mr. Sage read the letter, handed it back to Norcross, and suggested that
he had a gentleman waiting for him in his private office, and could be
through his business in a couple of minutes when he would give the
matter his attention.
Norcross responded: "Then you decline my proposition? Will you give it
to me? Yes or no?" Sage explained again why he would have to postpone
giving it to him for two or three minutes to get rid of some one in his
private office, and just at this juncture Mr. Laidlaw entered the
office, saw Norcross and Sage without hearing the conversation, and
waited in the anteroom until Sage should be disengaged. As he waited,
Sage edged toward him and partly seating himself upon the table near Mr.
Laidlaw, and without addressing him, took him by the left hand as if to
shake hands with him, but with both his own hands, and drew Mr. Laidlaw
almost imperceptibly around between him and Norcross. As he did so, he
said to Norcross, "If you cannot trust me, how can you expect me to
trust you?"
With that there was a terrible explosion. Norcross himself was blown
to pieces and instantly killed. Mr. Laidlaw found himself on the floor
on top of Russell Sage. He was seriously injured, and later brought suit
against Mr. Sage for damages upon the ground that he had purposely made
a shield of his body from the expected explosion. Mr. Sage denied that
he had made a shield of Laidlaw or that he had taken him by the hand or
altered his own position so as to bring Laidlaw between him and the
explosion.
The case was tried four times. It was dismissed by Mr. Justice Andrews,
and upon appeal the judgment was reversed. On the second trial before
Mr. Justice Patterson the jury rendered a verdict of $25,000 in favor of
Mr. Laidlaw. On appeal this judgment in turn was reversed. On a third
trial, also before Mr. Justice Patterson, the jury disagreed; and on the
fourth trial before Mr. Justice Ingraham the jury rendered a verdict in
favor of Mr. Laidlaw of $40,000, which judgment was sustained by the
General Term of the Supreme Court, but subsequently reversed by the
Court of Appeals.
Exception on this appeal was taken especially to the method used in the
cross-examination of Mr. Sage by Mr. Choate. Thus the cross-examination
is interesting, as an instance of what the New York Court of Appeals has
decided to be an abuse of cross-examination into which, through their
zeal, even eminent counsel are sometimes led, and to which I have
referred in a previous chapter. It also shows to what lengths Mr. Choate
was permitted to go upon the pretext of testing the witness's memory.
It was claimed by Mr. Sage's counsel upon the appeal that "the right of
cross-examination was abused in this case to such an extent as to
require the reversal of this monstrous judgment, which is plainly the
precipitation and product of that abuse." And the Court of Appeals
unanimously took this view of the matter.
The portions of the cross-examination that were especially excepted to
were the rejected jurors' conversation with Mr. Sage; the defendant's
lack of sympathy for the plaintiff; the article in the _New York World_;
the defendant's omission to give warning of the impending explosion, and
the defendant's wealth and the extent and character of his business.
_Mr. Choate._ "I hope you are very well this morning, Mr. Sage?"
_Mr. Sage._ "Yes, sir."
_Mr. Choate._ "Do you remember swearing to the answer in this case?"
_Mr. Sage._ "I didn't hear you, sir."
_Mr. Choate._ "Which is your best ear?"
_Mr. Sage._ "This."
_Mr. Choate._ "Do you remember swearing to the answer in this case?"
_Mr. Sage._ "I do."
_Mr. Choate._ "Who prepared it for you?"
_Mr. Sage._ "It was prepared by my counsel."
_Mr. Choate._ "Counsel in whom you have every confidence?"
_Mr. Sage._ "Yes, sir."
_Mr. Choate._ "Prepared after you had given a careful statement of your
case to them?"
_Mr. Sage._ "Such statement as I thought necessary."
_Mr. Choate._ "Did you mean to conceal anything from them?"
_Mr. Sage._ "No, sir."
_Mr. Choate._ "Did you read the complaint over with your counsel before
you swore to the answer?"
_Mr. Sage._ "I presume I did."
_Mr. Choate._ "Just imagine you were down at the Stock Exchange now, and
speak loud enough so that gentleman can hear you."
_Mr. Sage._ "I will endeavor to."
_Mr. Choate._ "Did you read your answer before you swore to it?"
_Mr. Sage._ "I did, sir."
_Mr. Choate._ "It was true, then, was it not?"
_Mr. Sage._ "I believed it to be so."
_Mr. Choate._ "I call your attention to a statement made in the answer."
(Mr. Choate here read from Mr. Sage's answer in which he swore that he
was in conversation with Mr. Norcross while Mr. Laidlaw was in the
office, Mr. Sage having testified differently the day before.) "Was that
true?"
_Mr. Sage._ "I don't know. I didn't catch it."
_Mr. Choate._ "I didn't want you to catch it. I wanted you to answer it.
You observe, do you not, that the answer says that the plaintiff Laidlaw
was in your office while you were conversing with the stranger?"
_Mr. Sage._ "I observe that, but I want to state the fact as I did
yesterday."
_Mr. Choate._ "Answer my question. Did you observe it?"
_Mr. Sage._ "I did."
_Mr. Choate._ "Put down your fist and answer my question."
_Mr. Sage._ "I answered it."
_Mr. Choate._ "I think we will get along as soon as you answer my
questions instead of making speeches. Did you observe that your answer
states that before Laidlaw was in the office, and while you were
conversing with the stranger, the stranger had already handed you a note
demanding money?"
_Mr. Sage._ "He had done no such thing."
_Mr. Choate._ "Do you observe that your answer states that?"
_Mr. Sage._ "Your reading states it so, but the fact is as I have stated
it."
_Mr. Choate._ "Was not your answer true as you swore to it?"
_Mr. Sage._ "No, sir; not on your interpretation."
_Mr. Choate._ "How came you to swear to it, if it is not true?"
_Mr. Sage._ "I suppose that was prepared afterward by counsel, as you
prepare papers."
_Mr. Choate._ "I never prepare papers. What are you talking about?"
_Mr. Sage._ "You have the reputation of preparing papers."
_Mr. Choate._ "Do you mean that your lawyers distorted the facts from
what you stated?"
_Mr. Sage._ "I suppose they prepared the papers in their usual form."
_Mr. Choate._ "In the usual form? Was there ever any usual form for a
case like this?"
_Mr. Sage._ "Yes, sir."
_Mr. Choate._ "Did you ever know of such a case before?"
_Mr. Sage._ "No, sir."
(Mr. Choate then pursued this inquiry, in various forms, for at least
one hundred questions more, and getting no satisfactory answer, he
continued, "We will drop the subject and go to something else.")
_Mr. Choate._ "Since Mr. Laidlaw made this claim against you, you have
been very hostile against him, have you not?"
_Mr. Sage._ "No, sir, not hostile."
_Mr. Choate._ "Have you not called him all sorts of bad names?"
_Mr. Sage._ "I said he did not tell the truth."
_Mr. Choate._ "Have you denounced him as a blackmailer? When did you do
that?"
_Mr. Sage._ "I might have said that a man who would persevere in making
a statement that there was not a word of truth in, and demanding a sum
of money--I don't know what you call it. Call it what you please."
_Mr. Choate._ "Did you not say that you would see Laidlaw a tramp before
he would get through with this case?"
_Mr. Sage._ "I have no recollection of any such thing."
_Mr. Choate._ "Will you swear you didn't?"
_Mr. Sage._ "I won't swear. I might."
_Mr. Choate._ "What?"
_Mr. Sage._ "I won't testify to what I have said."
_Mr. Choate._ "I want you to say whether you will swear that you said
that you would see Laidlaw a tramp before he got through."
_Mr. Sage._ "I don't know."
_Mr. Choate._ "Do you not know that when the last juror was excused from
the jury-box, or discharged, he stated in the presence of the court and
the other jurymen that after the verdict rendered by the former jury in
this case against you, Mrs. Sage went to him at Tiffany's and stated
that the verdict was a great outrage, and that Mr. Sage would never pay
a cent?" (This question was bitterly objected to by Mr. James, but
allowed by the court.)
_Mr. Sage._ "I want to state right here, if you will permit--"
_Mr. Choate._ "The first business is to answer this question."
_Mr. Sage._ "I don't know it. I know that Mrs. Sage denied ever having
said anything of the kind."
_Mr. Choate._ "You think the juror told a falsehood?"
_Mr. Sage._ "Mrs. Sage has no recollection of having said that."
_Mr. Choate._ "Did you say to anybody that it was an outrage?"
_Mr. Sage._ "I have no recollection. I think it is the greatest outrage
that was ever attempted by a respectable lawyer."
_Mr. Choate._ "Did you not say that you would spend $100,000 dollars in
defending this case rather than pay a cent to Laidlaw?"
_Mr. Sage._ "I have great confidence in the courts of this state and
the United States, and I am fighting for other people besides myself,
and I propose to have this case settled by the highest courts."
_Mr. Choate._ "No matter what this jury says?"
_Mr. Sage._ "I have great respect for them that they will decide the
case rightly. I want to know if a man can come into my office, and
because a tramp drops in there and an accident happens, and an injury
done, I am responsible for that?"
_Mr. Choate._ "These harangues of yours take a great deal of time. I ask
you whether or not you knew that Laidlaw at the time of this accident
had been very badly hurt?"
_Mr. Sage._ "Yes, sir; I knew he had been."
_Mr. Choate._ "Do not you know he was laid up in the hospital helpless?"
_Mr. Sage._ "I understand he was. Yes, sir."
_Mr. Choate._ "Did it ever occur to you to see what you could do for
him?"
_Mr. Sage._ "Yes, sir. I sent my brother-in-law to inquire after him
twice."
_Mr. Choate._ "Did you visit him yourself?"
_Mr. Sage._ "I did not."
_Mr. Choate._ "Did you do anything to relieve his sufferings?"
_Mr. Sage._ "I was not called upon to do anything of the kind."
_Mr. Choate._ "I did not ask you whether you were called upon. I asked
whether you did?"
_Mr. Sage._ "I did not."
_Mr. Choate._ "Did not you refrain from going to see him because you
were afraid if you did he would make a claim upon you?"
_Mr. Sage._ "No, sir."
_Mr. Choate._ "Did you care whether he was going to get cured or not?"
_Mr. Sage._ "It is an outrage to ask such a question."
_Mr. Choate._ "Did you have a grandnephew, Chapin, at this time?"
_Mr. Sage._ "Yes."
_Mr. Choate._ "Was he assistant editor of the _World_ at that time?"
_Mr. Sage._ "Yes."
_Mr. Choate._ "Shortly after the explosion, did he come to see you and
have a chat with you?"
_Mr. Sage._ "Yes."
_Mr. Choate._ "Did you afterward read an article published in the _New
York World_, headed, 'A Chat with Russell Sage,' and giving an interview
with you?"
_Mr. Sage._ "Yes."
_Mr. Choate._ "When you read in that article: 'He looks as vigorous as
at any time before the time of the assassination. His face bears almost
no marks of the glass that had got into it after the explosion. It was
clean shaven; in fact, Mr. Sage had arisen yesterday morning and shaved
himself,' did that accord with your recollection at the time you read
it?"
_Mr. Sage._ "No, sir; it did not. I have stated it was a gross
exaggeration."
_Mr. Choate._ "When the article continued, 'The only thing that
impressed one was that there was a face of an old man, hearty and
robust, tenacious of life and good for many years.' Did that accord with
your recollection at the time?"
_Mr. Sage._ "No, sir; it was an exaggeration. I was very badly scarred
all over my face."
_Mr. Choate._ "When you read in that article: 'It was more surprising
though, when Mr. Sage arose, and helping himself up at full length,
exhibited all his accustomed power of personality. He was like a warrior
after battle, a warrior who has come from the thick of the fight,
covered with the dust of conflict, yet without a hurt to body or limb.'
Did that accord when you read it with your then present recollection?"
_Mr. Sage._ "No, sir, it did not. This is the third time you have read
those articles to the jury in this case; it is like the Fourth of July
oration or the Declaration of Independence."
(Mr. Choate continued and was allowed to read from this newspaper
article, although his questions were constantly and urgently objected to
on the part of the defence, and although Mr. Sage said that he did not
read half the article "because it was an exaggerated statement from
beginning to end, as most paper interviews are." Mr. Choate here went
into an exhaustive examination as to the details of the accident,
comparing the witness's statements at previous trials with the
statements at this trial, and then continued:--
_Mr. Choate._ "Everything you did after you once appreciated the danger
you were in, having read the threat contained in the letter the stranger
handed you, was to gain time, was it not?"
_Mr. Sage._ "Yes, sir."
_Mr. Choate._ "You knew at that time, did you not, that Laidlaw and
Norcross were in the room? Why did you not tell them to step into your
private room?"
_Mr. Sage._ "I will tell you very frankly it would have been almost
certain death to six or seven men. There were three other men in that
room with only board partitions between. It would have infuriated the
stranger, and would have made him disregard me and drop the bag."
_Mr. Choate._ "Did you think of the danger that Laidlaw and Norcross
were in?"
_Mr. Sage._ "No more than the other clerks. We were all alike."
_Mr. Choate._ "And the reason you did not tell them to go into the other
room was that they would even then not be out of danger?"
_Mr. Sage._ "I thought it would displease Norcross, and show that I was
trying to do something to head him off."
_Mr. Choate._ "And he would allow the bag to drop?"
_Mr. Sage._ "Yes, sir."
_Mr. Choate._ "And kill you?"
_Mr. Sage._ "Kill me and kill the whole of us."
_Mr. Choate._ "What is your business?"
_Mr. Sage._ "My business is banker and broker."
_Mr. Choate._ "Why do you call yourself a banker?"
_Mr. Sage._ "Because I buy stock and discount paper and make loans."
_Mr. Choate._ "You are a money lender, are you not?"
_Mr. Sage._ "Sometimes I have money to loan."
_Mr. Choate._ "At various rates of interest?"
_Mr. Sage._ "Sometimes."
_Mr. Choate._ "Varying from six to sixty per cent?"
_Mr. Sage._ "Oh, no."
_Mr. Choate._ "What is the other part of your business?"
_Mr. Sage._ "My business is operating railroads."
_Mr. Choate._ "How many railroads do you operate?"
These questions were strenuously objected to, whereupon Mr. Choate said
to the court, "I think I can show that this man has so many things in
his head, that he is so full of affairs, that he is not a competent
witness at any time to any transaction."
_Mr. Sage._ "I am operating two."
_Mr. Choate._ "Are they large railroads or horse railroads?"
_Mr. Sage._ "Well, one of them is a large one."
_Mr. Choate._ "You help run several banks, do you not?"
_Mr. Sage._ "I am not running any banks, only a director."
_Mr. Choate._ "Are you a director in two banks?"
_Mr. Sage._ "Yes, sir."
_Mr. Choate._ "And trust companies?"
_Mr. Sage._ "Yes, sir."
_Mr. Choate._ "In the Manhattan Elevated R. R.?"
_Mr. Sage._ "Yes, sir."
_Mr. Choate._ "In the Western Union?"
_Mr. Sage._ "Yes, sir."
_Mr. Choate._ "In the Missouri Pacific?"
_Mr. Sage._ "Yes, sir."
_Mr. Choate._ "In the Union Pacific?"
_Mr. Sage._ "Yes, sir."
_Mr. Choate._ "This stock ticker that stood by the desk in the adjoining
room, did you keep run of it yourself?"
_Mr. Sage._ "Yes, sir."
_Mr. Choate._ "You take care of your own estate besides, do you not?"
_Mr. Sage._ "Yes, sir."
_Mr. Choate._ "That took a good deal of time?"
_Mr. Sage._ "It took some time."
_Mr. Choate._ "How much time did that occupy?"
_Mr. Sage._ "I have my assistants, my clerks, the same as you have in
your office."
_Mr. Choate._ "You loan money, you manage these railroads, banks, trust
companies, and the other affairs that you have mentioned. Did you not
have dealings in stocks?"
_Mr. Sage._ "Oh, I buy and sell securities occasionally."
_Mr. Choate._ "Do you not deal in puts and calls and straddles?"
_Mr. Sage._ "I have in years gone by."
_Mr. Choate._ "These affairs take your whole time, do they not?"
_Mr. Sage._ "No, sir; I have leisure. I do not devote all my time to
business."
_Mr. Choate._ "I think that is all."
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Transcriber's Notes
Punctuation has been standardized.
Page 017: Both "retrial" and "re-trial" are used.
Page 280: Unmatched left parenthesis: (Mr. Choate continued
Page 215: The title of Chapter VIII does not match the title
in the Table of Contents.
End of Project Gutenberg's The Art of Cross-Examination, by Francis L. Wellman