Patrick v. The Steamboat J. Q. Adams, 19 Mo. 73

Patrick v. The Steamboat J. Q. Adams

19 Mo. 73

| Mo. | 1853

Ryland, Judge,

delivered the opinion of the court.

Erom the preceding statement, it will appear, that the only questions which this case presents for the consideration of this court, have their origin in the decision of the lower court, in regard to the admissibility of testimony on the part of the plaintiff, and in regard to the rejection of the testimony of Lucas on the part of the defendant.

1. The objections made by the defendant to the testimony of the witness, Patterson, and which were overruled by the court below, are not valid. • The witness describes the injury done to the steamboat Shelby, and then gives his impression of the relative position of the two boats, from the wound in the Shelby. The fracture which the Shelby received might afford a sure means of judging the position at the time of the collision, and what the witness stated on this subject is considered per and lawful testimony.

*762. The rejection o£ the testimony of Lucas is also considered by this court as correct. He was an owner of the J. Q. Adams at the time of the collision, and at the institution of this suit, and was prima facie liable to the securities in the bond by which the boat was released. This suit was obviously defended for him — for his immediate benefit. His boat was attached; it had been released by bond. Now permit him to prove that the boat was not in fault, and he thereby escapes all responsibility himself. Admit that Lucas had sold his interest, and that, too, with the understanding that his purchasers should run the risk of this suit, he had not sold at the time of the institution of it; and then, when the boat was released on bond, he was, as an owner, hound prima facie to those upon whose bond she had been released, to reimburse them the money which they might have to pay on account of such bond. He was then properly considered an incompetent witness.

3. The most important objection is the one taken to the testimony of Win. Smith. This witness is permitted to give the general character of Lampton, a witness for defendant, as a pilot, in evidence ; thus: “His (Hampton’s) character, as to his knowledge of piloting, has always been good, but as regards his recklessness, in many instances, to my knowledge, he has not used the care which he should have used. I have heard him make observations that, meeting boats at night, he would run at them to make them run.” This statement met with the objection of the defendant; but still the court allowed' the following portion of it to be read, viz : “ As regards his recklessness, in many instances, to my knowledge, he has not used the care he should have used.” In the opinion of this court, this testimony was not admissible. The question in issue was, whether, at the time of collision, there Was any fault, which arose from incompetency or unskilfulness of the officers of the boat or any of them. Upon this question, the plaintiff offered to prove the general character of the pilot, and in doing this, his witness was suffered to testify to his own individual knowledge of acts of recklessness of the pilot. The appellant *77did not object to the general character of the pilot being given, and we are not called upon to say whether his general character, as pilot, was proper to be given before the jury or not; but the objection is to this part of the witness’ deposition: “ As regards his recklessness, in many instances, to my knowledge, he has not used the care which he should have done.” Now this evidence is not legal. The witness could not speak of individual knowledge of separate and distinct acts. Were he testifying as to a witness’ general character, he could not speak of his own personal knowledge of different acts of the person whose general character was the subject of proof.

But here the pilot is looked upon as a party — at least as the agent of the party ; and though a party in a civil suit has been guilty of different improper acts — acts of the same nature of the one which gave rise to the suit, yet, it never was thought competent for the adverse party to prove such acts in the trial of such suit.

An attorney at law being sued by his client for negligence and inattention, and for improper management of his case, is not subjected to the proof of general bad conduct and mismanagement of his clients’ cases.

The general character of the pilot here was given, and had the witness stopped at his general answer, the judgment would not have been disturbed, as the appellant, the defendant below, made no objection. But it was an unfair and improper way to speak of special or particular acts of recklessness, or to speak of the witness’ own personal knowledge of such. Upon this point, then, and this only, is the judgment of the court below considered erroneous.

The judgment of the court below is .reversed, and this cause is remanded,

the other judges concurring.