## Facts

- Oliver J. Coles sued Chester A. Harsch for alienation of affections, alleging Harsch maliciously won Mrs. Coles’s affections through “improper attentions,” including repeated “wrestling” and similar physical play during 1923–1925.
- Coles, his wife, Harsch, and Harsch’s then-wife belonged to the same social group and often gathered for card parties, dances, and other social events.
- Coles contended that Harsch’s wrestling with Mrs. Coles grew more pronounced over time and was part of a course of conduct aimed at drawing her away from the marriage.
- Mrs. Coles left the marital home on June 1, 1926, filed for divorce on June 4, 1926, obtained a decree on June 23, 1926, and later married Harsch on May 16, 1927.
- Coles sought $50,000 in damages; the jury returned a verdict for Coles for $17,500, and judgment was entered on that verdict.
- Harsch called James A. Thompson, a member of the social group, who testified about the wrestling encounters and the relationships within the group; if believed, his testimony supported that Harsch’s conduct toward Mrs. Coles was the same as his conduct toward other women friends and was proper and harmless.
- On cross-examination, Coles’s counsel asked Thompson only whether he remembered a conversation with Coles about a picnic; Thompson said he did not recall the conversation. Thompson was not confronted with the content of the alleged prior statement or identifying details such as time, place, or persons present.
- Later, over objection, Coles was permitted to testify on rebuttal that Thompson had previously told him that at the picnic the conduct of Harsch and Mrs. Coles toward each other was “disgraceful,” offered to impeach Thompson.
- The trial also involved disputes about attempts to impeach on collateral matters and the use of affidavits offered in a way that functioned mainly as an attack on credibility rather than proof of material facts.

## Issues

1. Whether a party may impeach a witness with extrinsic evidence of a prior inconsistent statement when the cross-examiner did not first relate the statement to the witness with the circumstances of time, place, and persons present, and ask whether the witness made it, as required by Oregon statute.
2. Whether the erroneous admission of impeachment evidence against a key defense witness was prejudicial error requiring reversal and a new trial.
3. Whether other impeachment efforts involving collateral matters and affidavits were improper, and how those rulings affected the judgment.

## Decision

- The Supreme Court of Oregon reversed the judgment for Coles and remanded for a new trial.
- The court held it was error to allow Coles to testify that Thompson had called the picnic conduct “disgraceful” because Coles failed to lay the statutory foundation for impeachment by prior inconsistent statement.
- The error was prejudicial because Thompson was one of Harsch’s main witnesses on the central question whether the defendant’s conduct was harmless social behavior rather than a means to alienate affections.
- The court rejected attempts to use impeachment to inject matters that were collateral to the issues being tried and disapproved the use of affidavits when offered as a vehicle to discredit rather than to prove a material point.
- Other evidentiary rulings—such as limits on additional detail about the group’s conduct—were treated as correct or nonprejudicial, but the improper impeachment required a retrial.

## Legal Principles

- Before a witness may be impeached with extrinsic proof of a prior inconsistent statement, Oregon law (then § 864, Or. L.) required that the statement be related to the witness with the circumstances of time, place, and persons present, and that the witness be asked whether the statement was made and allowed to explain.
- Asking only whether the witness remembers a conversation, without identifying the substance and circumstances of the alleged statement, does not satisfy the foundation requirement; extrinsic proof is inadmissible when the foundation is missing.
- Impeachment rules are not a formality: identifying circumstances can refresh memory, permit explanation, and reduce confusion from unnecessary impeachment.
- A party may not use impeachment as a pretext to introduce extrinsic evidence on collateral matters solely to contradict a witness or paint the witness as untruthful; when a matter is collateral, the examiner is generally bound by the witness’s answer.
- Improper impeachment of a principal witness on a contested factual theory may be prejudicial and require reversal even if other rulings are harmless.

## Conclusion

Coles v. Harsch reversed a $17,500 alienation-of-affections verdict because the plaintiff impeached a defense witness through extrinsic testimony about an alleged “disgraceful” picnic remark without first confronting the witness with the required time, place, persons present, and substance of the statement, as Oregon statute demanded; given the witness’s role in supporting the defense that the conduct was harmless, the evidentiary error was prejudicial and required a new trial, along with the court’s caution against collateral-matter impeachment and affidavit-based attacks on credibility.


Coles v. Harsch, 276 P. 248 (1929)