Steltemeier v. Barrett
145 Mo. App. 534
Mo. Ct. App.
1909
Check Treatment
REYNOLDS, P. J.

(after stating the facts).

The learned and able counsel for appellant present four propositions or points as their assignments of errors in the case. The first point is directed to the remarks of the court before quoted when defendant offered to read from the bill of exceptions a portion of the testimony of witness Smidt on the former trial and which remarks are alleged by counsel to be highly improper and prejudicial. The second point made is that defendant should have been permitted to read to the jury the letter to plaintiff’s counsel in regard to removing the paper from the back of the receipt. The third and fourth points are the alleged error of the court in refusing the first, *543second and third instructions asked by defendant and refused.

Taking these up in the order mentioned, we do not agree with counsel that the remarks of the court excepted to were so prejudicial to the defendant as to warrant a reversal of the judgment. While it is true that our appellate courts have gone to great lengths in enforcing the non-intervention by the trial judge in many matters at the trial, it is not to be overlooked that much latitude is to be allowed that judge. 'He is presiding and has under his eye the manner and demeanor of counsel, and their manner of dealing with the witnesses, and when the record taken as a whole shows that he is endeavoring fairly and impartially to conduct the trial, and keep counsel within proper bounds, his discretion and his efforts to conduct the case in an orderly manner are not to be interfered with, and are not ground of reversal unless manifestly unfair and improper. Human nature is no different on the bench than at the bar, and we are all familiar with the fact that in the progress of a heated and vigorously contested case, any one, whether judge or counsel, may make quick and even heated remarks and retorts, and that, unconsciously perhaps, counsel appear unfair to a witness. But to render remarks of the court reversible error, this court must be convinced, from an examination of the whole record, and .consideration of all the facts surrounding the circumstance, that they were made improperly and were of a character to prejudice the case. In the case under consideration the remarks of the court were directed to secure fair treatment of the witness. It is as much the duty of the trial judge to protect the witnesses who are before it and subject to the examination of counsel, as it is to see to any other incident connected with the administration of justice and which lead to the orderly conduct of trials, and great latitude must be allowed the trial judge in the exercise of this duty. We see no re*544versible error, in fact, no error whatever, in the remarks to which exception is taken.

Nor do we think there was error in excluding the letter addressed by counsel on one side to counsel on the other as to submitting a paper which was in controversy to an examination outside, or even inside of court. An examination outside of court is not in the control of the court in a case of this kind, and as the examination of that very paper could be made in the presence of the court and the paper was in evidence before the jury, and was submitted to the inspection of the jury, counsel certainly had all the advantage of any disclosure or fact which an examination might reveal.

No authority, except section 4652, Revised Statutes 1899, is referred to in support of the assignment of error on the refusal of the first instruction asked by defendant, which is to the effect that failure of the defendant to testify was not to be taken adversely to him. All there is in that section as relevant to the point, is as to the qualifications and disqualifications of witnesses. Reading the section throws no light on the matter contended for and does not meet the point made. While in criminal cases the statute (Sec. 2638, Revised Statutes 1899) expressly prohibits any comment whatever to be made on the failure of the defendant to testify, we know of no authority which extends this to civil cases and as a matter of fact courts have frequently commented on the failure of a party to testify in' civil, particularly equity, cases. That is far from holding that the jury should be instructed that the reason a party in a civil case has not testified is because the other side has not waived the statutory disability. Such an instruction would be a serious reflection upon and prejudicial to the party who has merely exercised his lawful right. Especially should no such instruction be given in a case of this kind when the right is exercised in protection of the dead. Nor does it appear in this case that any comment whatever was made on the failure of defend*545ant to testify to acts between Mm and the decedent. Furthermore it distinctly appears in the record that when defendant, testifying in his own behalf, was asked by Ms counsel, after being shown the note in suit, whether or not he had signed it, counsel for plaintiff objected and the court sustained the objection. Counsel for defendant thereupon said he thought they were entitled to know the ground of the objection. Whereupon the court said that the defendant is not a -competent witness for anything that transpired before the administrator was appointed, that that is the rule but it is not an iron-clad rule. Counsel for defendant then remarked that the objection might be waived and asked whether the objection went to the form of the question or to the fact of incompetency. Thereupon counsel for plaintiff said that he placed the objection on the ground of the incompetency of the witness. It was therefore clearly before the jury that defendant was willing to testify but was shut off under the law, by the objection of plaintiff. But we do not place our ruling on this ground but on the ground that the instructions should not have been given under the circumstances or facts.

The last proposition relied on, as to the refusal of the court to give the second and third instructions, is not tenable. These instructions are subject to the general criticism that they endeavor to shift the burden of proof .of payment from the defendant to the plaintiff. Payment is an affirmative defense the burden of which always and under all circumstances rests on defendant. Moreover, to have given this instruction, in the language asked, would have had a tendency to mislead the jury and confuse them. It is doubtful if the ordinary jury knows what rebutting proof is. The effect of this second instruction, if given, would have been, with any ordinary jury, to have caused them to think that the mere production of the receipts was, in itself, such strong evidence of payment of this note that the burden *546had shifted. This is not the law. Furthermore, in the second refused instruction, the first clause of it, after advising the jury that in the absence of sufficient rebutting proof, “it is the duty of the jury to find that deceased received from defendant on November 8, 1897, the sum of $1235.85, and also all the money which up to that time Edward Doyle had advanced to defendant,” concluded “and that plaintiff cannot recover in this action,” This is so wrong in law, that it would inevitably have misdirected the jury and if given as ashed, would have compelled reversal. The third instruction refused is not only obnoxious to most of the above criticism,, but is an undue comment on particular evidence in the case, in effect telling the jury that the production of the receipts is such conclusive evidence of the fact that those sums have been paid, as to require affirmative evidence on the part of plaintiff to rebut this presumption. Both these instructions omit any reference to the necessity of the jury finding and believing from the evidence that payments evidenced by the receipts were made on account of the note in suit. That was the very point in controversy.

We have not thought it necessary to set out all the rather voluminous testimony in this case, more at length, deeming it sufficient to say that there are sharp contradictions and also much of it going to the nature of the transactions between plaintiff and defendant, some of it having a tendency to put a very unfavorable construction on the acts of defendant in connection with the note sued on after the death of Doyle. After an examination of the testimony and the proceedings at the trial, we are satisfied the claims of the' respective parties were so presented to the jury as to leave the determination of the issue turn almost entirely upon the credibility of witnesses and on the weight of the evidence. These are matters peculiarly within the province of the trial judge and the jury; and finding no error tending to the manifest injury of the defendant in the rulings of the *547court on the admission and exclusion of testimony or in the giving and refusing of instructions, the judgment of the circuit court is affirmed.

All concur.