This is an action by Ernest B. McCarty against the appellants and the appellee Harry Boesel for damages for assault and battery. There was a trial by jury, and a verdict and judgment against the defendants for $3,000. The appellee Harry Boesel did not join in the appeal.
Error is assigned upon the overruling of appellants' motion for a new trial.
The appellants contend that the evidence fails to show *692
that the defendants acted jointly or that there was concerted action. This contention seems to be based upon the view 1. that, before there could be joint liability, the defendants "must have done an act which was planned, arranged, adjusted, agreed upon and settled between themselves prior to the commission of the tort." We cannot agree with this view of the law. See Little v. Tingle (1866),
The court sustained an objection to the introduction in evidence of certain records of a contempt proceeding in which it is said that the plaintiff was convicted of contempt of 2-6. court for perjury. This evidence was offered for the purpose of affecting the credibility of the plaintiff as a witness. It is well settled that ordinarily a witness cannot be impeached by proof of particular extraneous acts of misconduct. Section 2-1725, Burns' 1933, § 312, Baldwin's 1934, Acts 1881 (Sp. Sess.), ch. 38, § 284, p. 240, provides: "Any fact which might, heretofore, be shown to render a witness incompetent, may be hereafter shown to affect his credibility." This has reference to § 79, p. 999, Rev. St. 1843, which defined infamous crimes and rendered those convicted of such incompetent as witnesses. SeeDotterer v. State (1909),
The appellants offered to prove that the plaintiff's reputation for peace and quietude was bad. The complaint alleges that the defendants attacked the plaintiff. The defendants filed an affirmative answer alleging that the plaintiff was the aggressor. The plaintiff testified that the defendants were the aggressors.
Professor Wigmore says:
"It is to-day generally said that (subject to specific exceptions, some of them doubtful) the character of a party in a civil cause is inadmissible; i.e. that it cannot be used, 7. as used for or against a defendant in a criminal case, to indicate the likelihood that the act in issue was or was not done. This is laid down as a general rule, to which a specific exception, if any, must be clearly made out.
"This result, to be sure, was not always so clearly an accepted one. But it has long been a rule generally recognized, — subject, however, to exceptions which are being constantly enlarged, as they should be.
"The reasons for this exclusion differ wholly from the reasons forbidding the prosecution's use of the character of an accused person; the two rules have nothing in common. The reasons advanced for the present rule are of two chief sorts:
"(1) A party's character is usually of no probative value. Where the issue is whether a contract was made or broken, whether money was paid or property improved by mistake, whether goods were illegally converted or a libel published, there no moral quality in the act alleged, or at any rate any moral quality that may have been present is ignored by the law; and moral character can therefore throw no light on the probability of doing or not doing. In torts involving violence or actual fraud, such a moral quality may appear; but, *694 apart from these exceptions, it is either nonexistent or immaterial."
Wigmore on Evidence (3rd Ed.), Vol. 1, § 64, p. 472 et seq.
The author points out that this together with the policy of avoiding confusion of the issues has been relied upon to justify the general policy of excluding an investigation of the character of the parties in a civil cause. The author says: "It may, however, be maintained that the reasons of policy apply in ordinary civil cases only; and that where a moral intent is marked and prominent in the nature of the issue, the defendant's good moral character should be received, as in criminal cases. This view has in more modern opinions gained ground, and is worth recognizing." It may be noted that the reasoning applies to bad character as well as good. The author cites Hein v. Holdridge
(1900),
In the early case of Byrket v. Monohon (1844), 7 Blackf. 83, 85, an action for slander for charging the plaintiff with perjury, there was an answer that the charge was true. The 8. court said: "The defendant undertook to prove that the plaintiff had committed perjury; and the jury, in making up their minds on the subject, had surely a right to take into consideration, if the defense was not clearly proved, the general good character of the plaintiff for truth. Indeed, it would seem that such evidence ought never to be withdrawn from the jury, though it will often be rendered of no avail by the nature of the defendant's evidence. If the plaintiff were indicted for the offence, it would be proper for the jury, in making up their verdict, to take into consideration his general good character for truth; . . . and the law must be the same in the case before us." This case has often been cited with approval by this court, and never has doubt been expressed as to the soundness of the conclusion reached. Among the cases in which it has been cited with approval is Gebhart v. Burkett (1877),
"Byrket v. Monohon, 7 Blackf. 83, was a case of slander for charging the plaintiff with perjury; plea, justification. Here character is put directly in issue, and the corrupt intent is necessary to the defense. The same in Miles v. Vanhorn,
"In the case of Haun v. Wilson,
Here is recognition that if in defense it is asserted that the plaintiff was guilty of a crime his character is in issue, but the court concluded: "In the case before us, it is apparent that the general character of appellant is not involved. Motive or intent constitutes no element in the wrong complained of. The injury is the same, whether committed with or without malice. True, the appellee charges the appellant with maliciously burning the barn and its contents, but it was not necessary to prove the malice. If he proved the burning to be unlawful, it was sufficient as to that part of the case. General good character is no defence [defense] to the particular act charged." We are concerned with the principle announced, and not with the result reached. If the result is wrong, it is because of the misapplication of a sound principle. In the opinion there is a further quotation from Mr. Greenleaf as follows: "`This kind of evidence *697 is therefore rejected, wherever the general character is involved by the plea only, and not by the nature of the action. Nor is it received in actions of assault and battery; nor in assumpsit; nor in trespass on the case for malicious prosecution; nor in an information for a penalty for violation of the civil, police, or revenue laws. . . .'" The use of this quotation no doubt accounts for the citation of this case in support of the view that evidence of character is incompetent in civil actions for assault and battery. No such question was before the court. It is not clear that the lengthy quotations from Mr. Greenleaf were approved in their entirety. In fact, doubt at least is expressed as to the soundness of some of the language quoted.
In Downey v. Dillon (1876),
Sturgeon v. Sturgeon (1892),
It is settled beyond controversy that in a criminal action for homicide or assault and battery, where the defense is self-defense and it is asserted that the person charged 9-11. to have been assaulted was the aggressor, the defendant may introduce evidence of his good reputation for peace and quiet, and of the bad reputation of his adversary for peace and quiet. This evidence goes to the jury to be weighed and considered with the other facts and circumstances in evidence for the purpose of determining who was the aggressor. We held inSweazy v. State (1937),
It is charged here that the defendants committed an assault and battery upon the plaintiff. They defend upon the ground that the plaintiff was the aggressor, and introduce evidence 12. tending to support this charge. It was error to exclude the testimony of the bad reputation of the plaintiff for peace and quiet.
On cross-examination, the plaintiff McCarty was asked: "You have paid a fine for assault and battery *700
have you not?" And: "You have been found guilty of 13-18. contempt of court for perjury, have you not?" Objections were sustained to both questions, and the ruling is assigned as error. It is contended that the payment of fine would not be legal evidence that a proper judgment of conviction was rendered; that the question should have been: "Were you convicted of assault and battery?" The objection is technical. The question would be better in the form suggested by the appellee. It is well settled, and seems to be conceded by appellee, that, in cross-examination, a witness may be required to answer as to previous convictions. Concerning the second question, the appellee says there was no proof that he had been convicted. It is not necessary to introduce proof of a conviction as a basis for asking a witness in cross-examination whether he has been convicted. It is true that a judgment holding a person in contempt of court is not a conviction of a crime, but, where the basis of the judgment in contempt is perjury, it would seem pertinent upon the question of credibility. If, as appellee suggests, there was no judgment in the contempt proceeding, his remedy was to answer the question in the negative. In Dotterer
v. State, supra, it is said (page 362 of 172 Ind., page 692 of 88 N.E., page 852 of 30 L.R.A. [N.S.]): "It is a well-recognized rule that any fact tending to impair the credibility of the witness, by showing his interest, bias, ignorance, motives, or that he is depraved in character, may be shown on cross-examination, but the extent to which such cross-examination may be carried is within the sound discretion of the court. (Authorities.)" See, also, Grose v. State (1926),
Since the case is to be tried again, we make no comment upon the amount of the verdict.
What we have already said disposes of many of the questions involved in the instructions, and the others are not likely to arise again.
Judgment reversed, with instructions to sustain appellants' motion for a new trial.
NOTE. — Reported in