195 Mo. App. 658 | Mo. Ct. App. | 1916
This is an action -commenced before a justice of the peace to recover damages alleged to have been sustained by plaintiff while a passenger on a car operated by defendant, it being charged that defendant, by its agents, servants and employees, with force and arms, and without any just reason or excuse, wrongfully, unlawfully and maliciously, made an assault upon plaintiff and heat, pounded and bruised him in his person and damaged him in his property. Plaintiff recovering before the justice, the caus^ was appealed to the circuit court, where on a trial before the court and a jury, there was a verdict for the defendant from which planitiff has duly appealed.
The errors assigned are to the action of the court in permitting the defendant to impeach its own witness, and in giving, of its own motion, an instruction as to the credibility of witnesses, and to error in refusing to grant plaintiff a new trial. It is stated in the abstract before us that plaintiff, to sustain the issues on his part, offered and introduced evidence tending to prove the allegations of his petition, and that there were no witnesses to the assault other than the participants, and that without objection by defendant the plaintiff also introduced evidence in chief tending to prove his good character.
This is all the evidence which the abstract furnished by appellant sets out, except that the testimony
Referring to this it appears that Officer Scherzinger, on direct examination by counsel for defendant, testified that he was a member of the metropolitan police force of the city of St. Louis and had been such for six years and knew plaintiff. Counsel for defendant then asked him if he was acquainted with the reputation of plaintiff for sobriety and peacefulness, and he answered that he was. ITe was asked what it was, and he answered, “It is all right.” Pie further testified under examination by counsel for defendant, that he had been subpoenaed on the part of defendant, and was asked if he had talked with anybody about this case, to which he said, “No.” Counsel for defendant then asked him this question: “Didn’t you talk with this man,” indicating one Slough, “the claim agent?” Witness answered, “Why, yes.” Whereupon counsel for plaintiff interposed, “We object upon the ground that he can’t impeach his oaaui Avitness.” Whereupon counsel for defendant said: “I claim surprise.” The Court: “It is clearly a case of surprise. He is entitled to impeach him, if he can.” To this ruling counsel for plaintiff excepted.
The witness then testified on further examination by counsel for defendant, that he had been subpoenaed and that accompanying the subpoena was a card asking him to call at the office of the defendant; that he called there and had talked Avith Mr. Slough. He was asked if he had said anything to Mr. Slough about plaintiff drinking, to which he answered: “Why, they asked me if I knew him, and I told them, ‘Yes,’ and he says: ‘Plow long have you knoAvn him,’ and I says, ‘All my life.’ And he says, ‘What do I know? Is he a drinking man?’ I said, ‘Yes; he drinks occasionally. I have seen him already drinking.’” ITe was asked: “Isn’t it a fact that in that conversation you characterized him as a ‘booze-fighter?’ ” to which he answered, “No, I.
The witness was then turned over to counsel for plaintiff for cross-examination, and answering questions of that counsel, he said that he had been served with a subpoena which he produced and which required his appearance before the court in which the case was pending-at ten-o’clock a. m., on March 2, 1914, to testify as a witness in the cause on behalf of defendant, and that there was a card attached to this subpoena asking him to call at the office of the United Railways Company, giving its location, at nine o’clock of the date set for the
On redirect examination this witness testified that he had gone voluntarily to the office of defendant and when he got there there were witnesses in a number of cases to which defendant was a party, present, these cases pending in other divisions of the circuit court; that the claim agent told these several witnesses when the case in which they were subpoenaed was coming up and when to go over to the court, and if the case was not coming up right away, the claim agent told them to go about their business and he would let them know when to come back.
Defendant then recalled the witness Callahan, who testified, on direct examination, that he was present at the time of the conversation the day before between Officer Scherzinger and Mr. Slough. Asked if he remembered what Officer Scherzinger had said at that time in regard to plaintiff, witness answered: “Well,'he said he knew him all his lifetime, and they went to school together; and he was windy and a booze-fighter; and he left the impression that he Avas a hard case, you see. ’ ’ Counsel for defendant then asked this witness: “Did he (Officer Scherzinger) say anything about him being a disturber?” Whereupon counsel for plaintiff said: “I certainly want to object; certainly, the objection on the ground that Mr. Parley’s question is leading.” The Court: “That is the same question he put to the previous witness. He may answer.” This ruling of the court was excepted to by counsel for plaintiff and witness answered that Officer Scherzinger had said that
This is practically all the testimony that is brought up to us by this abstract.
In overruling the motion for a new trial the learned trial court handed down a memorandum opinion, which has been brought up to us by appellant. In this memorandum the court said that counsel for plaintiff, in support of the motion for a new trial, urges particularly as error, the action of the court in allowing defendant to impeach its own witness, Officer Scherzinger. The learned trial court says of this:
"That counsel overlooks the fact that when the impeaching testimony of which he now complains was offered, he failed to object thereto, or to sufficiently call the court’s attenton to the fact that he was objecting thereto on account of the fact that defendant was impeaching its own witness. The record discloses the fact that defendant placed Officer - Scherzinger on the stand, and in reply to counsel for defendant’s questions it was immediately evident to the court that it was a clear case of surprise; and Officer Scherzinger himself testified that he' had, shortly prior to the trial, been to the defendant’s office or witness room and had there made certain statements, which were, in the opinion of the court, contradictory of his testimony. To the cross-examination of Officer Scherzinger, bringing out these facts, counsel for plaintiff objected, on the ground that defendant was impeaching its own witness. Mr. Farley (counsel for defendant) then states that he claimed surprise. Counsel for plaintiff then no longer urged their objection, and counsel for defendant was allowed to cross-examine Scherzinger at length. At the completion of the examination of this witness, the defendant called one Callahan, and offered to prove by him that Scherzinger had, shortly prior to the trial and in the witness
The trial judge further said that even if this objection of the counsel was sufficient “the court is of the opinion that there was no error whatsoever in allowing the defendant to show the prior statements of this witness. In the opinion of the court there was a clear .ease of surprise, together with such action on the part of this witness, namely, going to the defendant’s witness room and giving his- statement shortly prior to the trial, as to, in the words of the Supreme Court, ‘ entrap ’ the defendant; and under such circumstances the rule, as understood by this court, is that a witness may be impeached by showing his prior inconsistent-statements. ” The court cited in support of this Clancy v. St. Louis Transit Co., 192 Mo. 615, 91 S. W. 509.
The learned counsel for appellant insists with great earnestness, that the objection which he made to the question propounded to Officer Scherzinger by counsel for defendant, namely, “We object upon the ground that he can’t impeach his own witness,” was carried forward when the witness Callahan was under examination and was asked if Officer Scherzinger had said anything about plaintiff being a disturber. That objection, as we have seen, is: “I certainly want to object; certainly, the objection on the ground that Mr. Farley’s question is leading.” As noted by the learned trial judge, when counsel for appellant made his first objection, which he placed upon the ground that he could not impeach his own witness, counsel for defendant stated that he was asking this impeaching question on -the ground of surprise and, as noted, the court held that it was clearly a case of surprise and that counsel for
Learned counsel for appellant claims that the objection as to impeachment was renewed, when, in answer to the question put to witness Callahan, as to whether Officer Scherzinger had said anything about plaintiff being a disturber, the learned counsel for appellant said: “I certainly want to object; certainly, the objection on
There are various modes of impeaching a witness, or by which his credit as a witness may be impeached. “The principal ones are by cross-examination; by disproving the facts stated by him, by the testimony of other witnesses; by evidence of bad character, of reputation, conviction of an infamous crime, bias for or against a party, or former statements contradictory of Ms testimony.” (Italics ours) [30 Am. & Eng. Ency. (2 Ed.), p. 1062, sec. VIL]
It is further said in the same work (page 1130, par. C and 2):
“It frequently happens that a party is entrapped into calling a hostile and unscrupulous witness, who has given one account of a state of facts before the trial, hut gives a materially different account on the witness stand. This circumstance has given rise to much discussion, and no little contrariety of opinion, as to how far a party^ thus surprised and deceived may impeach such a witness by proving his statements out of court. If a witness unexpectedly gives material evidence against the party who called him, such a party may, for the purpose of refreshing the memory of the witness and awakening his conscience, ask him if he did not, on a particular occasion, make a contrary' statement: Thus far the authorities are agreed, but the question is, should the inquiry stop here. If the witness admits that he has made a contrary statement, there is, of course, no necessity for other evidence of it, and according to many weighty decisions, if he denies making the imputed statement, the party cannot be allowed to prove it by
This, we think, is the law in our State as announced in the case cited by the learned trial judge, namely, Clancy v. St. Louis Transit Co., supra. The learned counsel for appellant claims that this Clancy Cáse is distinguished and explained in two subsequent decisions by our Supreme Court, namely, Beier v. St. Louis Transit Co., 197 Mo. 215, l. c. 234, 94 S. W. 876, and State v. Bowen, 263 Mo. 279, 172 S. W. 367. We do not think that the decision in either of those cases in any way militates against what was said by the court in the Clancy case.
In the case at bar the term “impeachment,” as used, goes more to contradiction; more to prove former statements made by the witness, differing from those made on the witness stand and was here admissible. Using the term “impeachment” in the sense of contradiction, it is not correct to say, as does counsel for appellant, that the respondent could not impeach his own witness. So, even granting that counsel for appellant had duly excepted to impeaching evidence of this kind, the objection was not well taken.
Our conclusion is, as to this part of the case, that we find no error in the action of the trial court in the admission of the challenged testimony.
Our conclusion is that there is no error in overruling the motion for a new trial. The judgment of the circuit court should be and is affirmed.