Stewart v. Watson
| Decision Date | 06 October 1908 |
| Parties | STEWART, Respondent, v. WATSON, Appellant |
| Court | Missouri Court of Appeals |
Appeal from New Madrid Circuit Court.--Hon. Henry C. Riley, Judge.
Judgment affirmed.
W. H Miller for appellant.
The first error contended for on the part of the appellant as being reversible is the action of the court in permitting witness Gus. Richards to testify as to his general reputation as being a quarrelsome, dangerous and turbulent man, over the objection of appellant. Appellant respectfully contends that this was error such as ought to reverse this case and that the character or reputation of a litigant, except where it tends to impeach him as a witness, is never admissible except in isolated cases where the character is necessarily thrown in question. Shoe Co. v. Hicks, 70 Mo.App. 309; Grocer Co. v. Taggart, 70 Mo.App. 168; Vawter v Hultz, 112 Mo. 634; Gutzwiller v. Lackman, 23 Mo. 470; Rogers v. Troost, 251 Mo. 470; Dudley v. McCluer, 65 Mo. 241; Stark v. Pub. Co., 160 Mo. 529.
J. V Conran for respondent.
(1) Respondent concedes that the cases cited by appellant show the trend of authority, as to the admissibility of the testimony complained of, to be in favor of appellant's position; in this case, however, the defense relied upon was one known to the profession as "self-defense." In passing upon the question in criminal cases it has been held that the good character of the defendant was at all times under circumstances analogous admissible. State v. Breeden, 58 Mo. 507; State v. Grant, 79 Mo. 113. (2) Respondent urges strongly against the error complained of by appellant, for the reason that if the evidence was incompetent, it was admitted without objection and the defendant did not move to have it stricken out, nor did he ask its exclusion by proper instruction. State v. Robinson, 117 Mo. 649; Nichols v. Nichols, 147 Mo. 403. (3) It is too late for appellant to complain of the admission of the testimony of Richards; he failed to avail himself of his privileges, probably assumed that the answer would be favorable to him and then finding it to be the reverse he seeks to take advantage of his own folly. Margrave v. Ausmuss, 51 Mo. 561; Foster v. Railroad, 115 Mo. 165; State v. Wisdom, 119 Mo. 539; Maxwell v. Railroad, 84 Mo. 95. (4) The instruction follows the petition and limited the recovery, if any was had, to the proper elements of damages recoverable under the same. Copeland v. Railroad, 175 Mo. 650; Butts v. Bank, 99 Mo.App. 168; Grayson v. Transit Co., 100 Mo.App. 730; Maguire v. Transit Co., 103 Mo.App. 459; Batten v. Transit Co., 102 Mo.App. 285; Rawlings v. Railroad, 97 Mo.App. 511; Berger v. Railroad, 97 Mo.App. 127; Sonnen v. Transit Co., 102 Mo.App. 271; Happy v. Prichard, 111 Mo.App. 12.
This is a suit for damages alleged to have accrued to the plaintiff because of an assault and battery upon him by the defendant. Plaintiff recovered in the circuit court and the defendant appeals. The evidence tended to prove that the defendant, without reasonable cause therefor, or upon very slight provocation, at most, assaulted the plaintiff and beat him into insensibility. He remained unconscious from about five o'clock in the afternoon until about five o'clock the following morning. The plaintiff suffered great physical pain and mental anguish as well as humiliation and insult from the assault and injuries received. He paid out a considerable amount for medicines and medical attendance. The jury assessed his damages at and awarded him a verdict for $ 750. There is no complaint leveled against the sufficiency of the evidence nor the amount of recovery.
The first assignment of error relates to the reception of evidence pertaining to the character and reputation of the defendant. Plaintiff's counsel propounded a question, inquiring as to whether the witness was familiar with the general reputation of the defendant in the community as to being a quarrelsome, dangerous, violent and turbulent man. To this question the witness answered: "Yes, sir." Plaintiff's counsel then inquired: "Is that reputation good or bad?" Witness answered: "It is bad." After these two question had been propounded and answers thereto received, defendant's counsel objected to the evidence as being wholly incompetent and irrelevant. The objection was overruled and exception saved. It is certain that in actions of this nature, and in civil actions generally, the character of neither party is in issue and cannot be the subject of attack unless it is first supported by the adversary or placed in issue by the nature of the proceeding itself. In civil actions, character and reputation is put at issue only by the nature of the proceeding in that class of cases such as libel, slander, malicious prosecution, etc., in which its value is to be considered in assessing the damages. There had been no evidence introduced in the case at bar tending to prove the defendant's reputation for peace and quietude in the community was good, and therefore the evidence introduced in this behalf on the part of the plaintiff was clearly incompetent. However this may be, the defendant waived his right to complain thereat by not objecting to the testimony until after it was received. In the present instance, each of the questions propounded clearly disclosed to the defendant and his counsel their purpose. Notwithstanding this, no objection thereto was interposed until after the second answer was received, and it appeared to be unfavorable to the defendant's cause. The testimony being elicited as it was by direct and pointed questions, disclosed its incompetency and there was thereby ample opportunity afforded the defendant to interpose his objection and prevent the reception of the evidence. In such circumstances, it is a rule that the party objecting will not be permitted to sit idly by and await the answers until he discovers the testimony is unfavorable to him, and then, for the first time, raise his objection. Numerous cases sustain the doctrine that such conduct on the part of the complaining party operates a waiver of his right to complain thereafter. [Maxwell v. Railroad, 85 Mo. 95, 106; Martin v. Block, 24 Mo.App. 60, 62; Foster v. Railroad, 115 Mo. 165, 183, 21 S.W. 916.] The assignment will therefore be overruled.
On the measure of damages, the court instructed the jury...
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