Gardner v. St. Louis, Iron Mountain & Southern Railway Co.

124 Mo. App. 461 | Mo. Ct. App. | 1907

GOODE, J.

Action for double damages for the loss of seven cattle belonging to plaintiff. There is evidence to show the animals went on the railroad track because of the bad condition of the fencing along the right of way and were struck by a passing train, some of the cattle being killed and others crippled. It'is contended by the company that none of the animals were shown to have been struck by an engine and, at most, only six were injured in that manner; whereas the instructions allowed a verdict for seven. We overrule both those assignments of error and hold there was evidence conducing to show seven animals were struck by a locomotive. It is true that in the documentary claim presented to the company by the plaintiff’s husband, he answered the thirteenth interrogatory: “Was animal struck'by a train?” in the negative. This must have been a mistake, for there are many other interrogatories and the answers as a whole indicate the claim presented was for damages for injuries inflicted by an engine colliding with the cattle.

Plaintiff having offered her husband as a witness, defendant objected to any further testimony from him for the reason that he Avas not a competent Avitness in her behalf. He was permitted to. testify on the ground of agency. What he said about the agency was that he was the agent of his wife in the management of her farm and cattle and after the cattle were killed, made an examination of them. The statutes remove the disqualification of a married man as witness in a suit prosecuted in the name of or against his wife, when the proceeding “is based upon, grows out of, or is connected with any matter of business or business transaction, where the transaction or business was had with or was conducted by such married man as the agent of his wife.” [R. S. 1899, sec. 4656.] Mr. Gardner was not a competent witness within the meaning of that provision of the statute. The suit neither grew out of nor was connected with any business transaction conducted by him as his wife’s agent. If the cause of action had arisen from some business affair between him and the defendant in which he represented his wife, he would have been competent to testify regarding the affair. But certainly he was not a qualified witness in the present case, as all the decisions hold which construe the statute in controversies akin to this one. [White v. Chaney, 20 Mo. App. 389; Flannery v. Railroad, 44 Mo. App. 396; Courtney v. Railroad, 77 Ark. 431.] There can be no doubt as to the incompetency of the husband to testify generally in the case. This proposition is not seriously contested, but several reasons are assigned why reversible error was not committed in admitting his testimony. These are that the court did not pass on the question; that the objection was waived by cross-examining him as to new matter and that the defendant did not specifically complain of the admission of his testimony in the motion for a new trial. None of those positions is well taken. Defendant’s objection to the husband’s testimony was definite and the court, after saying no agency'had been proved and receiving proof of the agency, permitted him to testify. The record shows an exception was saved to the ruling and, further, that in the motion for a new trial, defendant complained of the reception of incompetent testimony. As to tbe contention that tbe exception was waived by bringing ont new matter in tbe cross-examination of Gardner, suffice to say nothing new was elicted from bim except that be signed bis wife’s name to tbe claim presented in ber bebalf to tbe defendant company. Proving so trivial a fact ought not to be treated as a waiver of tbe exception previously saved.

Tbe judgment is reversed and tbe cause remanded.

All concur.