CHAPTER XV

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."

THE CITIZEN'S LIBRARY OF ECONOMICS, POLITICS, AND SOCIOLOGY

UNDER THE GENERAL EDITORSHIP OF

RICHARD T. ELY, Ph.D., LL.D.

_Director of the School of Economics and Political Science; Professor of

Political Economy at the University of Wisconsin_

12mo Half Leather $1.25, net, each

MONOPOLIES AND TRUSTS. By RICHARD T. ELY, Ph.D., LL.D.

"It is admirable. It is the soundest contribution on the subject

that has appeared."--Professor JOHN R. COMMONS.

"By all odds the best written of Professor Ely's

work."--Professor SIMON N. PATTEN, _University of Pennsylvania_.

OUTLINES OF ECONOMICS. By RICHARD T. ELY, Ph.D., LL.D., author

of "Monopolies and Trusts," etc.

THE ECONOMICS OF DISTRIBUTION. By JOHN A. HOBSON, author of "The

Evolution of Modern Capitalism," etc.

WORLD POLITICS. By PAUL S. REINSCH, Ph.D., LL.B., Assistant

Professor of Political Science, University of Wisconsin.

ECONOMIC CRISES. By EDWARD D. JONES, Ph.D., Instructor in

Economics and Statistics, University of Wisconsin.

GOVERNMENT IN SWITZERLAND. By JOHN MARTIN VINCENT, Ph.D.,

Associate Professor of History, Johns Hopkins University.

POLITICAL PARTIES IN THE UNITED STATES, 1846-1861. By JESSE

MACY, LL.D., Professor of Political Science in Iowa College.

ESSAYS ON THE MONETARY HISTORY OF THE UNITED STATES. By CHARLES

J. BULLOCK, Ph.D., Assistant Professor of Economics, Williams

College.

SOCIAL CONTROL: A SURVEY OF THE FOUNDATIONS OF ORDER. By EDWARD

ALSWORTH ROSS, Ph.D.

COLONIAL GOVERNMENT. By PAUL S. REINSCH, Ph.D., LL.B., author of

"World Politics," etc.

DEMOCRACY AND SOCIAL ETHICS. By JANE ADDAMS, Head of "Hull

House," Chicago.

MUNICIPAL ENGINEERING AND SANITATION. By M. N. BAKER, Ph.B.,

Associate Editor of _Engineering News_.

AMERICAN MUNICIPAL PROGRESS. By CHARLES ZUEBLIN, B.D., Associate

Professor of Sociology in the University of Chicago.

IRRIGATION INSTITUTIONS. By ELWOOD MEAD, C.E., M.S., Chief of

Irrigation Investigations, Department of Agriculture.

RAILWAY LEGISLATION IN THE UNITED STATES. By BALTHASAR H. MEYER,

Ph.D., Professor of Institutes of Commerce, University of

Wisconsin.

STUDIES IN THE EVOLUTION OF INDUSTRIAL SOCIETY. By RICHARD T.

ELY, Ph.D., LL.D., author of "Monopolies and Trusts," etc.

* * * * *

THE UNITED STATES

AN OUTLINE OF POLITICAL HISTORY, 1492-1871

By GOLDWIN SMITH, D.C.L.

Crown 8vo Cloth $2.00

"The brilliant comment of a liberal Englishman on the history

and institutions of this country is of the utmost value to

Americans, who will not be repelled by its occasional harshness,

by its occasional injustice, but who will be materially helped

to a juster conception of the results of American civilization,

and will be immensely entertained and interested by the vivacity

and freshness with which the comments are made"--_The Outlook._

"Of this last production from the pen of Mr Smith, a reader will

not hesitate to speak his judgment in the highest terms of

respect and commendation Its three hundred of open pages, of

terse and often brilliant and epigrammatic matter, make it a

marvellous condensation of historical narrative and of

philosophic comment on principles, men, events, and incidents

Its judgment upon our politicians, statesmen, military leaders,

orators, and presidents, are sometimes keen, but always

intelligent, impartial, and discriminating"--_Boston Evening

Transcript._

* * * * *

THE AMERICAN COMMONWEALTH

By the Right Hon. JAMES BRYCE, D.C.L.

_Author of "The Holy Roman Empire", M P. for Aberdeen_

Third Edition, Revised Throughout In Two Volumes Large 12mo $4.00 net

Abridged Edition, in One Volume, $1.75 net

"His work rises at once to an eminent place among studies of

great nations and their institutions It is, so far as America

goes, a work unique in scope, spirit, and knowledge There is

nothing like it anywhere extant, nothing that approaches it....

Without exaggeration it may be called the most considerable and

gratifying tribute that has yet been bestowed upon us by an

Englishman, and perhaps by even England herself.... One despairs

in an attempt to give, in a single newspaper article, an

adequate account of a work so infused with knowledge and

sparkling with suggestion.... Every thoughtful American will

read it and will long hold in grateful remembrance its author's

name."--_The New York Times._

* * * * *

DEMOCRACY AND THE ORGANIZATION OF POLITICAL PARTIES

By M. OSTROGORSKI

Translated from the French by FREDERICK CLARKE, M A, formerly Taylorian

Scholar in the University of Oxford, with a Preface by the Right Hon.

JAMES BRYCE, M P.

In Two Volumes Cloth 8vo $6.00 net

"M Ostrogorski's work is a monument of scholarship and

painstaking research, and a treasury of information of political

conditions in Britain and in America that is alike amazing and

invaluable The book is one that every publicist, every one

desirous of acquainting himself with the growth and development

of political conditions in the two great Anglo speaking nations

of the world, should possess, for he cannot afford to remain in

ignorance of this master work."--MARSHAL H. BRIGHT.

THE MACMILLAN COMPANY 66 FIFTH AVENUE, NEW YORK

* * * * *

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

The Art of Cross-Examination With the Cross-Examinations of Important Witnesses in Some Celebrated Cases · 第 15 / 15 章