185 S.W.2d 646 | Mo. | 1945
Lead Opinion
In this personal injury action by Earl Hungate against Finis B. Hudson the jury returned a verdict for the defendant. The circumstances upon which the plaintiff relied as demonstrating liability were that he stopped his 1935 Chevrolet coupe upon the highway while a freight train passed over the intersecting crossing. His was the third car in a line of traffic, and the plaintiff and his witnesses claimed that while he was yet stopped upon the highway the defendant's truck, without warning and at a speed of about forty miles an hour, crashed into the rear of his coupe and knocked it sixty or seventy feet across the double tracks. According to the defendant the circumstances of the occurrence were that the truck driver saw the cars stopped at the crossing when the truck was a quarter of a mile away and began slackening the speed of the truck and came to a stop just behind the plaintiff's car. As the plaintiff moved forward and the defendant's truck was proceeding slowly behind him the plaintiff suddenly and without warning stopped his *946 automobile in such close proximity to the truck that it was impossible to avoid a collision, which was of but slight impact and caused but little damage.
The plaintiff, Hungate, was sixty-five years old and had resided in Mt. Vernon, Illinois, for forty-five years. He was or had been a United States Deputy Marshal and for three years had been employed as a salesman by the L.B. Price Mercantile Company. He worked out of the Marion, Illinois, branch of the company and on the date of this occurrence, on U.S. Highway 50 near Shattue, Illinois, was engaged in his employment. The defendant, Hudson, was engaged in the storage and moving business. His office was located in Overland, Missouri. He had twelve trucks and fifteen or twenty employees. The truck involved in this collision was driven by Ed Kreysar and was returning home after having delivered furniture in Indianapolis and Louisville. Hungate v. Hudson (Mo.), 169 S.W.2d 682.
It is urged, upon this appeal by the plaintiff, that the trial court permitted defendant's counsel to improperly cross-examine him and because of the prejudicial effect of the cross-examination he is entitled to a new trial. It is contended by the defendant that under the plaintiff's general objection of immateriality he is limited on this appeal solely to the ground stated and that the admission of wholly irrelevant or immaterial evidence cannot constitute reversible error. It is also contended that the cross-examination was proper and relevant because it bore upon the plaintiff's credibility.
[648] The cross-examination complained of, particularly the under-scored sentences, is the following:
"Q. You have had experience with a lot of lawyers, then, haven't you? A. I have been around a lot of lawyers, yes.
"Q. Been around the courts over there when cases were tried? A. Yes, I have been around some of them.
"Q. Your father, I believe, was connected with a very prominent lawyer over there, wasn't he? A. Yes, he was.
"Q. You know this law business fairly well, from a layman's standpoint? A. I never had any experience in the law business myself, but I have been around places —
"Q. Been around? A. Yes.
"Q. You could have brought this suit over in Illinois,couldn't you?
"By Mr. Hullverson: I object to that, if the Court please, there is no duty on him to bring a suit in Illinois.
"By Mr. Schwartz: That is not the question.
"By Mr. Hullverson: And it is absolutely immaterial.
"By the Court: It is cross-examination, he may answer.
"By Mr. Schwartz: Go ahead.
"By the Court: He can answer yes or no.
"To which ruling of the Court the plaintiff, by his counsel, then and there duly excepted and still continues to except. *947
"A. I guess I could.
"Q. They have got a statute over there that you send a petition or pleadings to the Secretary of State and he mails them over to Missouri, or wherever it might be.
"By Mr. Hullverson: I object to counsel testifying.
"By the Court: Objection sustained.
"By Mr. Hullverson: I move the jury be instructed to disregard it.
"By the Court: Gentlemen of the Jury, you are instructed to disregard that.
"By Mr. Schwartz: I know the Court takes judicial notice of the Illinois statutes. Do I have to produce the statutes?
"By Mr. Hullverson: I object to the whole things as immaterial.
"By the Court: Objection sustained as to what the statute is.
"Q. Since you could have brought the suit over there, whydidn't you bring it over there among your friends, where youlive, and where they know you?
"By Mr. Hullverson: I object to that as absolutely immaterial.
"By the Court: It is cross-examination. The witness may answer.
"To which ruling of the Court the plaintiff, by his counsel, then and there duly excepted and still continues to except.
"Q. Mr. Hungate, since you could have brought the suit overthere, why didn't you bring it over in Carlyle or Mount Vernon,where you live?
"By Mr. Hullverson: I object to the question for the further reason there is no evidence he could have brought the suit over there.
"A. I was in the hospital. When I got out of the hospital I came over here.
"Q. You stayed over here after you got out of the hospital? A. After I got out of the hospital I was sent over here.
"Q. You were sent over here and stayed over here most of the time? A. Most of the time, yes.
"Q. Do you know a good many lawyers over there. Did you consult any lawyer in Illinois? A. No, sir.
"Q. Never talked to anyone there? A. No, sir.
"Q. You know a lot of them, don't you? A. I know quite a few lawyers over there, yes."
[1] As the respondent contends, it is generally true that "the admission in evidence of facts entirely immaterial to the issues and without probative force cannot constitute prejudicial or reversible error," especially when the facts evidenced are of such character that they do not have a natural tendency to inflame or arouse hostile passions and their prejudicial effect is not otherwise made to appear. Span v. Jackson-Walker Coal
Mining Co.,
[2] The cross-examination of witnesses is one of the safeguards to accuracy and truthfulness. Bartlett v. Kansas City Public Serv. Co.,
The really decisive question in this case is whether the cross-examination was permissible as reflecting upon the plaintiff's credibility.
It is entirely proper, either by way of introduction or cross-examination, to identify a witness and to inquire into his residence, antecedents, social connections and occupation, particularly as they reflect his credibility either for good or bad. 70 C.J., Sec. 919; 28 R.C.L., Sec. 199, p. 610; annotation 1 A.L.R. 1402. A party, as a witness, may be asked questions the answers to which tend to degrade him or reflect upon his credibility in these and other respects. Bush v. Kansas City Pub. Serv. Co.,
In the instant case there was no objection by the defendant to the place of trial upon the ground of inconvenience, and the policy of the venue of transitory actions is not in issue or before us. 43 Har. L.R. 1217; Baltimore Ohio R. Co. v. Kepner,
In the second place, should an inference unfavorable to credibility be permitted from the exercise of a legal right even though some obloquy or stigma might attach to its assertion? In Shull v. Kallauner,
In view of all these things it was an abuse of discretion to permit the cross-examination and for that reason the judgment is reversed and the cause remanded. Westhues, C., concurs;Bohling, C., dubitante.
Addendum
The foregoing opinion by BARRETT, C., is adopted as the opinion of the court. All the judges concur.