Wibracht v. Annan

89 Mo. App. 363 | Mo. Ct. App. | 1901

GOODE, J.

-The first and principal error assigned relates tó the refusal of instructions requested by plaintiff. Hnfortunately for the consideration of this point, the bill of exceptions fails to show that such instructions were embodied or called for therein, or that any exceptions were taken at the time to their refusal and, on motion of the respondents, they were heretofore stricken from the abstract of the record. This omission is fatal to a review of the ruling of the court on this point.

One other ruling is claimed to be erroneous; permitting plaintiff’s husband to testify to the indorsement of the notes by plaintiff and the conversation between them in which she authorized him to collect the second one for nineteen hundred dollars and use ■ the proceeds. Plaintiff’s own testimony established her husband’s agency for her in these transactions and made him a competent witness. In the opinion of the writer, the testimony claimed to have been erroneously admitted was not privileged, as it went to the scope of ‘die agency and was competent, therefore, under the statute and the decisions. Leete v. State Bank, 115 Mo. 204; Sec. 4656, R. S. 1899. The section quoted removes the disqualification of a married man as a witness in any civil suit prosecuted in the name or against his wife, when the suit is connected with any matter of business or transactions had with or conducted by him as the agent of his wife. To give full effect to the legislative intention, it is necessary to construe this statute as conferring complete competency on the husband to testify not only to the fact of the agency, but to the authority given him as agent, unrestricted by the rule in respect to confidential communications. Otherwise the remedial purpose of the statute will be greatly stunted, as such occurrences between man and wife are usually private. My associates do not agree with me in this. But we need not here inquire whether or not the matters given in evidence by him were confidential communications and privileged, for the privilege may be waived and objection to their admission was not made nor exception saved for that reason. The only portion of the testimony of Henry Wibracht to which an objection was interposed on the specific ground that it called for privileged matter, was as to the interest he collected in March, 1889. The plaintiff herself swore to that, so the admission of Wibracht’s statement to the same effect as hers would at most be harmless error. When he was asked, after quite an interval, about how he got the $2,000 note from her, the following ensued: “Plaintiffs counsel objected on the ground that no authority has been shown to take out the note and exchange it. The Court: That is a matter of proof. It is admitted that he took it out.” Then the witness proceeded to tell that his wife indorsed it and the conversation in which she authorized him to take another note for the nineteen hunderd dollars due on it; also of her indorsing the latter note when it fell due in July, 1889, and their conversation concerning it. To this the record shows the following objections: “'Objected to for the reasons before stated.” This would naturally refer to the reasons assigned in the last preceding objection, relating to the same matter. That objection made no point as to the testimony being privileged. The court admitted the evidence, saying to defendants’ counsel: “If you say she gave him this note for any purpose you can ask him the question.” The plaintiff saved no exception to this ruling. Thereupon, the witness told of the aforesaid indorsements and conversations. All that appears afterwards is the request by plaintiffs counsel, unaccompanied by any reason, that the testimony be stricken out, which request was denied and an exception taken.

We must rule that these recitals from the bill of exceptions do not preserve any objection or exception to the husband’s testimony on the score of its being a privileged communication. That reason was not assigned and the testimony, whether incompetent on that ground or not, was otherwise competent. It has always been the law in this State that general objections to the admission of evidence do not authorize an appellate court to review the trial court’s action in admitting it. Fields v. Hunter, 8 Mo. 128; Bank v. Merchant’s Bank, 10 Mo. 123; Bauer v. Franklin County, 51 Mo. 205; Western v. Flannagan, 120 Mo. 61; Bank v. Scalzo, 127 Mo. 164; Seligman v. Rogers, 113 Mo. 642. Where the evidence is excluded on a general objection, the ruling will be reversed if the evidence is competent for any purpose. Chaffee v. R’y. Co., 64 Mo. 193. When the evidence is excluded, the trial court, which is entitled to a specific objection, treats the general one as sufficient by acting on it; whereas, when the general objection is overruled, it may be presumed this was done because of its insufficiency. Evidence of fraud on the defendants’ part is lacking. They accepted the loan, in the first place, reluctantly and as an accommodation to Wibraeht, who pressed them to take it, as plaintiff wished her money to be earning something.

Finding no error in the record, the judgment is affirmed.

All concur; Judge Bond in the result, for the reasons given in his separate opinion.

SEPARATE OPINION.

BOND, J.

The disqualification of the husband or wife to testify for the other at common law was not waivable, but the disqualification to testify against the other, whether from interest and legal identity or because the proposed testimony would embrace confidential communications, was waivable by the other party. The statutes in this State have removed the absolute disqualification at common law and permitted such persons to testify for each other under the limitations prescribed in the enabling acts. R. S. 1899, secs. 4562, 4566. As to the other disqualifications, resting on privilege only, as these might have been waived at common law, so they can be waived now. In the ease at bar, the record shows a clear waiver by appellant of the adverse testimony, of communications between the two, given by her husband. I concur in the opinion for this reasQn solely.