177 S.W.2d 618 | Mo. | 1944
Lead Opinion
The issue for decision is whether the italicized portion (italics throughout are ours) of the following instruction constitutes error at law: "The court instructs the jury thatthe written statement of Abbie Chestnut read in evidencemust not be considered by you as evidence against the Schuermann Building Realty Company or against Norman, Lee and Harry Schuermann." The verdict of the jury was for the defendants, all named in the instruction. Plaintiff's motion for new trial was sustained.* Plaintiff's contention here is that the instruction was erroneous because it "was too broad and too all inclusive." Of different opinion at first, we, after consideration, conclude the fault is one of nondirection and not of misdirection, and plaintiff, having taken her chances with the *420 jury without requesting the court to cover or submitting an instruction covering the matter omitted from the quoted instruction, may not complain upon being disappointed by the action of the jury in returning a verdict in favor of her adversaries.
Isabelle Hammond instituted an action for $10,000 damages against Schuermann Building Realty Company, a corporation, Norman Schuermann, Lee Schuermann, Harry Schuermann, and Abbie Chestnut for the alleged wrongful death of her husband. Later, she dismissed as to Abbie Chestnut. It appears that some men engaged in an altercation or riot in St. Louis county and Upton Hammond, plaintiff's husband, was killed. Mr. Chestnut was taken into custody in connection with the homicide and gave a written narrative, [620] signed by his mark, of the occurrence to the officers. After his testimony in chief for defendants and cross-examination, this narrative was offered in evidence by plaintiff in rebuttal for the stated reason that it contradicted his sworn testimony before the jury. Then, in due course, followed defendants' instruction, quoted supra, the verdict for defendants, the order granting a new trial and defendants' appeal.
Post-rem narratives of a litigant are admissible and competent evidence on the merits against such narrator when admissions against interest. Holt v. Williams,
The rule generally applicable to evidence of limited effect was quoted by Hyde, C., in Ferril v. Kansas City L. Ins. Co.,
The evidence within the instant instruction was offered by plaintiff in rebuttal [621] for the sole purpose of impeaching the witness Chestnut. It was original and competent evidence on the fact that Chestnut made the assertions contained in the narrative but as to defendants was hearsay evidence. "But impeaching evidence is not evidence of the fact touching which the witness is sought to be impeached. It is only the admission of parties which is evidence of the facts admitted." Rombauer, J., in Short v. Bohle (1895), 64 Mo. *422
The recent case of State v. Davenport,
Of plaintiff's cited cases not hereinbefore mentioned: The instant instruction differs from instructions singling out a plaintiff and informing the jury that statements by him against interest may be taken or are presumed to be true because against interest et cetera; that is, singling out the plaintiff for the purpose of commenting on plaintiff's credibility and the weight and value to be attached to the whole of his testimony. Shartzer v. Atchison, T. S.F. Ry. Co. (Mo. App.), 250 S.W. 950, 951[1], mentioning earlier cases cited by plaintiff. The instant evidence was of limited legal effect and it is proper in such instances to so inform the jury. Buckry-Ellis v. Missouri Pac. Rd. Co.,
After witness Chestnut had been impeached, defendants were privileged to offer competent hearsay evidence, if any they had, of statements consistent with his testimony for the purpose of rehabilitating the witness. State v. Emma,
Generally, hearsay evidence is not admissible at all. Our system requires the production of witnesses to the fact. Witnesses relating hearsay avoid difficulties confronting witnesses to the fact. The scope of their evidence is the fact of the assertion, not the facts in the assertion. They avoid all particularity of the fact; they answer no questions, solve no difficulties, reconcile no contradictions, explain no obscurities, remove no ambiguities with respect to the facts. They rest upon the statement they were so informed and leave the facts with the informant. Neither impeaching testimony nor rehabilitating testimony should be taken as evidence of the hearsay facts so asserted. Justice ought not substitute such extrajudicial statements for a witness' testimony upon confrontation and supported by the sanction of an oath. Such hearsay evidence is concerned with and only with the fact of the assertion and has nothing whatever to do with the *424
truth of the fact asserted. As we read the authorities and the observations therein the probative value of impeaching evidence ceases to function when it exhausts its force against the witness impeached. Its scope and its function is restricted to the credibility of said witness. It does not function legally as evidence having probative value against the other litigant. Our holding is that in the circumstances the instruction was not error as a matter of law. This is not saying the instruction covers all the law on the issue or that trial courts should give like instructions. Like instructions may be refused but that does not necessarily mean they misstate the law. Litigants should not be improperly circumscribed in their freedom of appropriate language and instructions may be differently worded in the furtherance of impartial justice to meet the exigencies of the varying facts of individual cases. On the other hand, a litigant may not stand idly by and take chances on a favorable verdict and, after being disappointed, successfully assert error of law in an instruction, which embraces all essential factors of his adversary's position on an issue without misdirecting the jury, because the instruction fails to embody a proposition to which he would have been entitled and which would have been accorded him had he submitted an instruction of his own on the issue. Defendants, absent a proper request, would be in no position to complain if the court had failed to instruct on the limited effect of the evidence. Ferril v. Kansas City L. Ins. Co., supra; City of St. Louis v. Worthington, supra, among others. So, too, with plaintiff in the instant circumstances. Crabtree v. Kurn,
The order granting a new trial is set aside and the cause is remanded with directions to reinstate the verdict of the jury and enter judgment thereon. Westhues and Barrett, CC., concur.
Addendum
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.