164 Mo. App. 216 | Mo. Ct. App. | 1912
Lead Opinion
In March, 1902, the plaintiff and defendant entered into two separate contracts whereby the defendant promised and agreed
The suit was brought in the circuit court of Wright county, and was returnable to the September term, 1908. The petition is in two counts in the usual form, pleading the execution of the contracts, amounts due thereon, the conditions of same, a failure of the defendant to comply with their terms, and a prayer for judgment. The defendant in due course filed an amended answer duly verified, admitting that on the day alleged he executed two contracts, but averring that said contracts, after the execution and delivery thereof, had been changed, and, with a fraudulent purpose, mutilated, and that by reason thereof, the defendant was no longer liable thereon. The answer further alleged that the change and mutilation complained of is that the original contracts, as executed, had written thereon the time when the said apple trees were to be delivered, to-wit: Under the first contract (Exhibit “A”), they were to be delivered in the spring of 1903, and in the second contract (Exhibit “B”), they were to be delivered in the spring of 1904, and the defendant alleged that the parts of the contracts whereon.was written the time specified for the delivery of these trees had been torn off, thereby rendering the contracts void. Further answering, the defendant alleged that he at various times, prior to the spring of 1903, wrote to the plaintiff, at the address left by her with Mm for that purpose, asking for shipping directions, and that she made no reply thereto; and that in the spring of 1903, he prepared, packed and boxed in good condition, ready for shipment, two hundred and fifty dollars worth of apple trees and delivered same at
Plaintiff hy reply denies any mutilation of the contracts; denies that she tore off or detached any •part of said contracts; and denies that the defendant delivered any trees at West Plains, Missouri, as provided for in the contract; and then generally denies all new matter pleaded in defendant’s answer.
The testimony of the plaintiff and defendant tends to support their respective theories of the case and the allegations of their respective pleadings. As to the integrity of the contracts sued on and whether or not there had been any change or mutilation thereof, there was no testimony save and except that given hy the parties to the action. One witness, to-wit, L. M. Fenner, who was postmaster at that time at Buckhart, Missouri, gave testimony tending to corroborate the testimony of the defendant respecting the writing by him of letters to plaintiff requesting directions for ship.xnent of trees, and likewise corroborating him in his
The trial was to the .court, a jury being waived, and judgment being rendered for the defendant, the plaintiff appealed. This is a sufficient statement of the facts.
Numerous errors alleged to have been committed by the trial court are presented to us for determination in the brief of counsel for appellant. ' "We have considered all of the assignments of errors and have examined the authorities cited in support thereof, as well as the briefs — original, and supplemental — of counsel for respondent in reply thereto. However, in the view which we take of the case, and the conclusion we have reached, it will be necessary to discuss only one point, to-wit, the alleged error of the trial court in permitting evidence to be introduced as to the character of the plaintiff and of the defendant.
The authorities in this state on this subject are uniform and unambiguous. In civil cases, the character of neither party, until assailed, can be inquired into, unless it is put in issue in that class of cases such as libel, slander, and malicious prosecution, when its value is to be considered in assessing the amount of damages: [Vawter v. Hultz, 112 Mo. 633, 20 S. W. 689; Alkire Grocer Co. v. Tagart, 78 Mo. App. 166; Dudley v. McCluer, 65 Mo. 241.] So it unquestionably appears that in this case the trial court committed error in admitting* evidence as to the defendant’s gen
It is to be remembered that this was an action at law and not a suit in equity, and that the appellate' court in such a case is not authorized to try the action ele novo and in such trial reject incompetent evidence.
It is to be recalled in this case that the respondent alleged that the contracts sued on had been mutilated by plaintiff tearing from them, after they had been delivered, material stipulations as to the time of the delivery of the trees, with intent to cheat the respondent, which claim the plaintiff denied. There was no substantial evidence on this point save that of plaintiff and defendant. On the proof of such issue, the burden was upon the defendant, and hence his character and standing became a material factor in determining-the value of his evidence.
It has been often declared by our Supreme Court —whose decisions are by constitutional mandate the law of this court — that errors of the trial court are presumptively prejudicial, and that it devolves upon the parties asserting their harmlessness to show such fact affirmatively or the presumption will prevail. [Barkley v. Cemetery Assn., 153 Mo. 1. c. 317, 54 S. W. 482; Dayharsh v. Railroad Co., 103 Mo. 570, 15 S. W. 554; State v. Taylor, 118 Mo. 1. c. 161, 24 S. W. 449; Bindbeutal v. Street Ry. Co., 43 Mo. App. 463; Morton v. Heidorn, 135 Mo. 608, 37 S. W. 504.] This principle was lucidly and logically stated in the Bindbeutal case, supra, by Smith, P. J., as follows (1. c. 469): ‘ ‘ Error and prejudice go hand in hand, until the latter, which is the creature of presumption, is met and neutralized by something in the record. It follows, therefore, that the interference of the appellate court with the judgment of the lower court can be successfully invoked by showing an error in the record; for when
The learned trial judge sitting without a jury permitted the incompetent evidence to be given over the objections of the plaintiff, and it is fair to assume that he gave weight to such evidence in the formation of his judgment. [Holmes v. Farris, 97 Mo. App. 305, 310, 71 S. W. 116; Kearney Bank v. Froman, 129 Mo. 1. c. 430, 31 S. W. 769.] In the case of McDonald v. Matney, 82 Mo. 358, 366, the trial had been before the court sitting as a jury and the respondent made the contention in the Supreme Court that inasmuch as the cause was tried by the court without the intervention of a jury, the declarations of law were of no importance, except as indicating the theory on which the court proceeded, and that it was immaterial that im
It is earnestly contended, however, by counsel for respondent, that even though this point raised by the appellant be well taken, yet that the objections and exceptions to this testimony are not sufficient to authorize the appellate court to find error in the ruling of the trial court.
The record shows that at the trial the defendant offered the deposition of L. M. Fenner who testified, in part, as follows:
“I know the general reputation of C. "W. Bayless in and about Buckhart, Missouri, where he resided, for truthfulness and honesty and uprightness, and know that that reputation is good.”
“I know also the general reputation of Mrs. Ellen Hatch in and about Buckhart, Missouri, for truthfulness, honesty and fair dealing, and I know her reputation is bad.”
The record shows that the following objections were made: “The plaintiff objects to the question and statement in the deposition' as to the general reputation of Bayless for truthfulness, honesty and uprightness, because no attack has been'made on the reputation of defendant, and also objects to the testimony regarding plaintiff’s general reputation for truthfulness in 1909 because that is not in issue, and asks that that part of the deposition be stricken out; which objection was overruled by the court, to which ruling' the plaintiff then and there excepted.”
It is apparent that the testimony as to the good character of the defendant Bayless was incompetent and that the testimony as to the bad character of the plaintiff Hatch was incompetent at the time it was offered. Now it is said that only one objection was made and that it was rightfully overruled because it was a general, objection and part of the testimony was
It is further said that if we treat the objections as two separate objections, then but one exception was saved, and that is insufficient. Our statutes providing for exceptions (sections 2028 and 2029, Revised Statutes 1909) say that the exception must be made at the time the court makes the ruling and that there must be a separate exception to each ruling the court makes, but that these several exceptions may be embodied in one bill of exceptions. The common law practice is stated in Thompson on Trials, sec. 2806, to the effect that a single exception reserved to one or more rulings of the trial court in gross presents no question which can be considered on appeal. This rule would not seem to apply to the present case because there was one ruling only and consequently there could be but one exception. The court evidently considered that the testimony both as to the defendant’s good reputation and as to the plaintiff’s bad reputation was competent and by one ruling overruled the objections. So that this case does not present a condition in which there are two or more rulings of the trial court in gross and only one exception, but there is one ruling and one exception. It seems to me that the law was complied with.
In a supplemental brief the respondent makes the further point that the objection of plaintiff to this evidence which we are now considering was not made until after the testimony was in, and the question had been answered, and therefore came too late. The record in this respect is somewhat awkward in its form, and, as printed, tends in some degree to justify this contention. There can be no question but that under the decisions of the appellate courts of this state a party will not be permitted to speculate on his chances and wait until the witness has answered the question before making his objection; it then comes too late and should be overruled. [Stewart v. Watson, 133 Mo.
It will be remembered, however, that in the case in hand, the evidence complained of was in the form of a deposition, and it is fair to assume that the objections thereto were made in the usual manner by noting same on the margin thereof. They are definite in form and point out the evidence complained of. In the above cases, the reason upon which the rule is based is that a party is not permitted to speculate on his chances or the result of an answer; but that reason fails and the rule cannot be applied with the same effect where both the questions and answers are patent to counsel and to the court, as in this case, where evidence is given in the form of a deposition. In such case, there can he no speculating by counsel on what the answer to a question may be, for the answer is before him. So we conclude that the rule invoked, and announced in the above cited cases, should not be applied here.
We hold, therefore, that the objection to this testimony was properly and timely made, and, being unable to declare as a matter of law that the error of the trial court did not materially affect the merits of the action, it follows that the judgment should be reversed and the cause remanded, and it is so ordered.
Dissenting Opinion
DISSENTING OPINION.
I respectfully dissent from the majority opinion. The case was tried before the court without a jury, and the judgment is reversed and the cause remanded on the sole ground that the court permitted one witness to testify to the general reputation of the
But one witness testified to the general reputation of the.defendant. This witness did not appear in person, but his testimony was in a deposition, and in an answer to one question he said the general reputation of the defendant for truthfulness, honesty and uprightness was good. There was no other reference to the character of the defendant, and because the witness testified to something that the court would have presumed to be true without his testimony, this judgment is reversed and the cause remanded for another trial.
I fully believe the judgment would have been for the defendant had this testimony not been admitted. The evidence discloses that a Mr. Mills accompanied by a man who gave his name as Davis, visited the defendant and made a demand for the payment of the notes. Mills testified that the defendant admitted he had not paid the notes in money or apple trees, and made an excuse that he could not do so because he did not have the trees. The defendant denied this conversation, an^ this alleged Mr. Davis was not offered as a witness do corroborate Mills. The defendant testified, however, that this man’s name was not Davis, but Hatch, and that he was the husband of the plaintiff. Subsequently a deposition was taken and the witness gave his name as Palmer, and a witness testified that he was acquainted with the plaintiff’s husband and his handwriting, and that the signature of the witness, Palmer, to the deposition, was written by Hatch, the plaintiff’s husband.
The deposition of the so-called Mr. Palmer was not offered in evidence, and the only testimony to contradict the. three witnesses as to the identity of this man was the testimony of the plaintiff herself, who testified that her husband did not visit the defendant with Mills, and that his deposition had not been taken. She claimed that Davis and Palmer really existed, and that she had sent Davis to see the defendant about the payment of the notes, and at one time assigned the notes to Palmer. It is only fair to say that the preponderance of the evidence supported the defendant’s theory that Davis and Palmer were only names assumed by plaintiff’s husband, and that she must have known that fact. In addition to being thus contradicted by three witnesses, some testimony was admitted tending to prove that the general reputation of the plaintiff for truth and veracity was bad. With the plaintiff thus contradicted by three witnesses and her general reputation for truth assailed by one witness, it is perfectly apparent to me that the trial court would have found the issues for the defendant, even though the one witness had not testified that the defendant’s reputation was good.
While the appellate courts do not try a law case de novo, yet when the case was tried before the court, they do not attach the same importance to error in the admission of testimony that they do where the trial was by jury. [Sheehan v. Stackhouse, 10 Mo. App. 469; Moore v. Mountcastle, 72 Mo. 1. c. 607; Barnett v. Pepper, 114 Mo. App. 1. c. 221, 89 S. W. 345; Lewis v. Frankle, 138 S. W. 64.]
I have never examined a record since I have been a member of this court that was absolutely free of error, and if every case is too be .reversed because
