McCombs v. Foster, 64 Mo. App. 613

McCombs v. Foster

64 Mo. App. 613 | Mo. Ct. App. | 1896

Ellison, J.

This cause is here on second appeal (62 Mo. App. 303). It is an action on a promissory note alleged to have been executed by the defendant and Ben Funk and M. J. Funk. Defendant was the only one of the parties served and the case was dismissed as to the Funks. Neither of them was a witness in the cause. Defendant pleaded non est factum, duly sworn to. The judgment in the trial court was for defendant.

At the opening of the case for the defense, the plaintiff seems to have apprehended that the defense would undertake to introduce evidence to show that Ben Funk’s reputation for truth and veracity was bad and that he was reputed to be a forger. Plaintiff, therefore, submitted to the court an objection in writing to such apprehended testimony, on the ground that such testimony did not tend to prove or disprove any issue in the case and that it was prejudicial to the plaintiff and could only be offered in the presence of the jury for the purpose of injuring plaintiff’s case with the jury. The court declined to rule on the matter at that time. We can not interfere with the court’s discretion in this refusal. The court was certainly authorized to refuse to rule upon a point of objection in advance of the offer of the testimony. At the time of the court’s refusal, it did not even appear, aside from the aforesaid written suggestion of the plaintiff, that such testimony would, in fact, be offered. Afterward, however, the defendant did introduce a witness and offer to show by him that Funk had the reputation *617of being a forger and the court excluded it. The defendant’s counsel then stated, in the presence of the jury, that “a dozen or more would swear to the same thing.” After the court ruled that such evidence could not be heard (Funk being neither a party nor a witness), the defendant asked the. same question of a number of other witnesses, the court excluding the testimony, and, in addition, inquired as to Funk’s reputation for truth and veracity. The probable effect of all this was to prejudice plaintiff’s case with matters which were foreign to the case, and which, of course, should not.have been brought before the jury, if it could have been avoided. The defendant’s counsel had a right to make his offer of proof, if made in good faith, as it doubtless was, and take the court’s ruling thereon. But when the offer was made and rejected by the court, all was accomplished which could serve any useful and proper purpose to the defendant. The repeated offer with other witnesses had a tendency to create an impression with the jury that since defendant denied he ever signed the note, and Funk was a bad character and a forger, he forged defendant’s name. But we recognize that there are matters arising in the course of a trial which can not, with safety,, be supervised or controlled /here. The trial court is in a much better situation to judge rightly in matters of the nature here complained of than we are. At the same time we readily concede to plaintiff’s counsel that under all the- circumstances of the case, the connection of the parties, the nature of the defense, and the manner of the offer of the testimony, the repeated offer may have had its tendency to debar plaintiff from that impartial and unbiased consideration at the hands of the jury which trie law vouchsafes to him.

*618The next complaint made by plaintiff relates to matters transpiring after the cause was submitted to the jury. The record shows the following:

“After the jury had received their instructions, about 7 o’clock in the evening, the jury having been called in for the purpose of adjourning for supper, one of the panel announced to the court that they never could agree. The court said to the jury: ‘You are not brought in to announce the situation or standing of the jury; the case is an expensive one to try and you should try to agree; I will let you separate and go to supper under the usual charge, and when you come back, you can see if you can’t agree; I will have to go away on the evening train (meaning a train leaving Butler at 9:45 p. m.) on account of having received a telegram announcing a family affliction. If you can not agree, I will leave someone to receive your verdict and you can stay until morning, if you do not agree before.’

“Plaintiff excepted to the above remarks of the court, as they tended to coerce and influence the jury in agreeing upon a verdict.

“After supper the court and jury came back, and between 8:10 and 9:10 of said evening the court had the sheriff to inquire of the jury some three times as to whether they had agreed; and the last time, which was about 9:10 o’clock (the court expecting the ’bus to leave the hotel at 9:15 for the train which he intended leaving on) sent the sheriff to the jury and said: ‘Tell the jury it is time for me to go and for them to report the prospect of a verdict.’ That the sheriff did go to the jury as directed by the court, and within a few minutes they returned a verdict for the defendant. To all of which plaintiff excepted as the same was prejudicial to the plaintiff and tended to coerce and influence a verdict.”

*619It appears that this was Saturday night and that the trial judge, who resided in another county, had received a telegram concerning an affliction in his family, which very naturally caused him to wish to go to them at the first opportunity. Under such circumstances, he addressed the jury as is herein shown. In McPeak v. Railroad, 128 Mo. 617, a question much like this was before the supreme court. From that decision and the authorities, especially from this state, which are discussed, we are forced to the conclusion that error was committed, for which the judgment must be reversed. Among other cases referred to is that of State v. Hill, 91 Mo. 423. In that ease the following took place between the judge and jury, in open court, after the jury had the case under consideration for several hours and had not agreed, viz.: “Gentlemen, I will be here until 11 o’clock to-day, at which time I expect to go home, and if you agree upon a verdict against that time, you will be discharged; if you can not agree by that time, court will adjourn from day to day, until such time as you may agree.” The jury in that case returned a verdict before 11 o’clock, as they did in this case before 9:15. It is suggested that the Hill case was a criminal case, where greater care and strictness is enforced than in civil cases. It will be observed, however, that the rule was applied by a majority of the court, in the civil case of McPeak, supra.

We are satisfied that it was the circumstances of distress in which the learned judge found himself placed that induced the communication to the jury; but, at the same time, we feel that our duty is to reverse the judgment and remand the cause.

All concur.