51 Mo. App. 46 | Mo. Ct. App. | 1892
Lead Opinion
The action is for slander. The petition is in two counts. The first count charges the speaking of the words, “ slut, bitch and whore,” of and concerning the plaintiff, in the presence and hearing of others; and the second count the speaking of the following words: “You [meaning plaintiff] are a street walker, and that you [meaning plaintiff] fooled with the roomers to support Mr. Walter [meaning plaintiff’s husband], and that the $10 a week you [meaning the plaintiff] paid while Mr. Walter [meaning plaintiff’s husband] was at the hospital was made in a dishonest way.” The speaking of the words set out in the second count is accompanied with an innuendo that the defendant thereby meant to accuse the plaintiff of adultery. The answer consists of a general denial, and pleads the plaintiff’s bad moral character in mitigation of damages. It also states that the action was instituted through fear and restraint of plaintiff’s husband. Upon a trial before a jury there was a verdict for plaintiff for $500 on the first count and for
The first point relied on by appellant for reversal is that the court erred in not compelling the plaintiff to elect on which of the two counts she would proceed to trial. The point is sought to be supported by our ruling in Casey v. Aubuchon, 25 Mo. App. 91, where we' held that the speaking of a number of distinct defamatory statements at the same time, all charging the same offense, although in different phraseology, may be embodied in the same count. "We did not hold that they must be so embodied, even when spoken on one occasion and in the presence of the same hearers; much less that, when spoken in different places and in the presence of different hearers, they can be so embodied. There is nothing in plaintiff’s petition to show that the words in both counts were spoken on the same occasion and in the presence of the same hearers, and the proof tends to show that the latter was not the case. The court, therefore, would have erred, had it compelled the plaintiff to elect on which cause of action she would proceed.
The next error complained of is the action of the court in not permitting defendant to cross-examine one of the plaintiff’s .witnesses on matter pertinent to the issues touching. which he had not been examined in chief. The ruling of the court on that subject best appears from the following statement of the law made by the court in presence and hearing of the jury: “I am not saying he is not a competent witness. I am saying how far you can cross-examine. The moment you drop cross-examination you are not allowed to put leading questions; you are undertaking to cross-examine on a matter on which they have not asked anything at all. As in this case he [the witness] was examined
The rule on this subject in this state is, and always has been, that a witness, called for either party, to prove any fact, is his witness for all purposes, and may be cross-examined by the adverse party on the whole ' case. This is in substance the English rule, which is followed in many of our states, though not in others, nor in the federal courts. It was stated as the correct rulé in Page v. Kankey, 6 Mo. 433, by Judge Napton, and has been followed ever since in this state. Brown v. Burrus, 8 Mo. 26; St. Louis & Iron Mountain Railroad v. Silver, 56 Mr. 265; Jones v. Roberts, 37 Mo. App. 163; State v. Brady, 87 Mo. 142. In Page v. Kankey, supra, and State v. Brady, supra, the judgments were reversed for similar errors in denying the right of cross-examination.
The plaintiff contends that this error was not prejudicial, because it appears by other parts of the record that the defendant’s counsel was subequently permitted to put leading questions to this same witness on other parts of the case. But since leading questions can be put to a party’s own witnesses in the discretion of the court, it does not appear by that fact alone that the court receded from its former ruling, deliberately made. Error is presumed to be prejudicial. To justify an appellate court in affirming a judgment, when error has intervened in the trial, the burden is upon the party claiming the benefit of the judgment to satisfy the appellate court that the error was not prejudicial. Clark v. Fairley, 30 Mo. App. 335. We must say now, as we said in that case, that the appellant has failed to satisfy us of that fact. The defendant may
As the judgment will have to be reversed for this error, we will only briefly notice others complained of as a guide to the trial court in a retrial of the cause. In the course of the cross-examination of Dienstbach, a witness for the defendant, he was asked what remark was made by the defendant to Mrs. Ryan, one of the by-standers. The defendant objected on the ground that, unless the remark was made concerning plaintiff, the question was improper. The court thereupon ruled that the plaintiff was entitled to elicit from the witness “all the conversation that occurred at that time.’' Counsel for defendant replied: “Do I understand that, if this man said slanderous words about Mrs. Ryan to Mrs. Ryan herself, that is evidence in this case. And the court ruled that “it was competent to prove anything that was said by the defendant, whether it related to the. plaintiff or not, since the defendant had testified to all that was said.’’ The witness thereupon stated that the defendant made a grossly obscene remark to Mrs. Ryan, having reference exclusively to Mrs. Ryan. This evidence had an unquestioned tendency to inflame the jury against the defendant, and, if its admission was erroneous, the error was clearly prejudicial. The question and answer were both improper. What the defendant said in the same conversation on the subject under investigation was competent. Lyon v. Batz, 42 Mo. App. 606; Unterberger v. Scharff, decided at the present term. But on what theory evidence was admissible of an
We find no error in other parts of the record, of which the defendant has any right to complain. The defendant’s instructions are too favorable to him, as they confine the plaintiff to proof of the speaking of the identical words charged, whereas, under all the eases, it suffices to prove either the identical words or substantially the same words. Noeninger v. Vogt, 88 Mo. 589, and cases cited.
The judgment is reversed and the cause remanded.
Concurrence Opinion
(concurring). — I concur in the result, and I concur in the conclusion, that the limit which the court imposed in this case upon the defendant’s right of cross-examination is to be regarded as prejudicial under the decision of our supreme court in State v. Brady, 87 Mo. 142, though, if the question were an open one, I should be of a different opinion. But I do not concur in so much of the opinion as holds, restating the doctrine of Clark v. Fairley, 30 Mo. App. 335, that error is presumed to be prejudicial, and that, to justify an appellate court in affirming a judgment when error has intervened in a trial, the burden is on the party claiming the benefit of the judgment to satisfy the appellate court that the error was not prejudicial. Substantially that, I am satisfied, was the rule of decision under writs of error at common law (People v. Wiley, 3 Hill (N. Y.) 194), and would continue to be the rule of decision in this state but for the following prohibitory statute: “The supreme court, or courts of appeal, will not reverse the judgment of any court unless it shall believe that error was committed by such court against the appellant or plaintiff in error, and
I am confirmed in this view by what I find in a recent work of great merit on appellate procedure, one of the authors of which is chief justice of the supreme court of Indiana. In that work it is said: “A ruling must appear by the record, and from the record it must be shown to be erroneous in a strict sense; that is, it must appear that the ruling was wrong, and that it probably so operated as to bring about a wrong final result.” Elliott on Appellate Procedure, sec. 592. And again: “A ruling may be wrong, and yet not constitute error in the true and strict sense of the term. If the record does not show that it was probably prejudicial, that is, that it probably conduced to a wrong
I file this separate opinion, because, now that I am about to retire from the court, I wish to set myself right on what I regard as a serious slip made by the court in Clark v. Fairley, 30 Mo. App. 335, in announcing the rule of appellate procedure which is reasserted in the opinion of the court in this case. I do it the more readily, as I am conscious that I assisted in the formulation of that proposition as it is stated in the opinion in Clark v. Fairley, supra. But, on further reflection, I have several times regretted that we stated the rule in that way; and it is now my deliberate judgment that the admission of a presumption of law, that prejudice attends technical error, is a principle that materially abrogates the statute, that tends to the disposal of causes on grounds that do not affect their real merits, and that leads to reversals of judgment and the multiplication of new trials, and to the consequent protraction of litigation, which is a great public evil.'
