Paris v. Waddell
| Decision Date | 06 December 1909 |
| Citation | 123 S.W. 79,139 Mo.App. 288 |
| Parties | GEORGE PARIS, Respondent, v. THOMAS S. WADDELL, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Lawrence Circuit Court.--Hon. F. C. Johnston, Judge.
AFFIRMED.
Judgment affirmed.
James A. Potter for appellant.
(1) In permitting the witness, Fate Paris, to testify that defendant offered to pay plaintiff five dollars rather than have any trouble over the account here sued on, the court admitted evidence that is excluded on the grounds of public policy. Terry v. Taylor, 33 Mo. 323; Taussig v Shields, 26 Mo.App. 318; Huettman v Viesselman, 48 Mo.App. 582; Gorham v Auerswald, 59 Mo.App. 77; Herman v. Railroad, 77 Mo.App. 377; Hunter v. Helsley, 98 Mo.App. 616. (2) A witness cannot be impeached on the ground that he made contradictory statements, unless his attention is first called to the time, place and circumstances and persons to whom the alleged statements were made. Gregory v. Cheatham, 36 Mo. 155; State v. Starr, 38 Mo. 270; Lobart v. Buchanan, 50 Mo. 201; State v. Foye, 53 Mo. 336; Spohn v. Railroad, 116 Mo. 617; State v. Ragsdale, 59 Mo.App. 590; Nagel v. Transit Co., 104 Mo.App. 438; Baker v. Shaw, 35 Mo.App. 611. (3) This question was also inadmissible for the reason that it involved only immaterial and irrelevant matters and the witness could not be impeached or contradicted by such statements. Lobart v. Buchanan, 50 Mo. 201; Harper v. Railroad, 47 Mo. 567; McFadden v. Catron, 120 Mo. 252; McKern v. Clavert, 59 Mo. 243; Bank v. Murdock, 62 Mo. 70; State v. Mann, 83 Mo. 589; Morgan v. O'Neill, 51 Mo.App. 35; Ern v. Rubenstein, 72 Mo.App. 337; Brown v. Weldon, 27 Mo.App. 251; State v. McClain, 159 Mo. 340; Hendley v. Globe Refinery Co., 106 Mo.App. 20.
Charles L. Henson for respondent.
(1) Admissions of a party litigant against his interests are admissible, and will be received in evidence against him. Elliott, Evidence, sec. 222; Greenleaf on Evidence (15 Ed.), sec. 170 et seq.; Moseley v. Railroad, 132 Mo.App. 642; Railroad v. View, 156 Mo. 608; Erwin v. Railroad, 94 Mo.App. 289. (2) The offer of a sum by way of compromise of a claim tacitly admitted is receivable in evidence unless accompanied with a caution that the offer is confidential or expressed to be made without prejudice. Greenleaf on Evidence (15 Ed.), sec. 192; Elliott, Evidence, sec. 240; Moore v. H. Gaus & Sons, 113 Mo. 98. (3) Objections to evidence not interposed at the time the evidence is offered will not be considered in the appellate court. Nor will an objection made in the lower court be permitted to be enlarged into other and further specific objection in the appellate court. Moseley v. Railroad, 132 Mo.App. 642; Bragg v. Metropolitan St. Ry. Co., 192 Mo. 331; Dean v. Railroad, 199 Mo. 386; O'Neill v. Kansas City, 178 Mo. 91.
On the 22nd day of August, 1907, respondent brought suit against the defendant before a justice of the peace in Lawrence county, claiming the defendant owed him "the sum of fifteen dollars for team hire and damage to team and buggy." The cause was tried before a justice of the peace and appealed to the circuit court and tried before a jury. The respondent recovered a verdict for seven dollars, judgment entered thereon, and from which the appellant appealed.
The testimony in behalf of plaintiff tended to prove that the respondent, who was engaged in operating a mine, authorized Ben Wheeler and Tom Beasley, two of his employees, to go to the livery stable of respondent and hire a team to be used by said Wheeler and Beasley in an effort to find men to work in the appellant's mine; that the said employees of appellant went to the stable, asked for the team in behalf of appellant and the same was furnished to them; that they kept the team and damaged the buggy until the respondent claimed seven dollars for the use of the team and eight dollars damages for the rig. The appellant denied that he authorized Wheeler or Beasley to hire the team on his account, and this was the issue in the case.
It is claimed the court committed error in permitting the respondent to testify that when he went to see the appellant about the matter, he said he would pay five dollars for the use of the rig, but he would not pay any damages. Appellant's claim of error is made upon theory that this was an offer of compromise. We do not so regard it. No suit was pending at the time and the respondent simply went to him to collect his bill for the use of the team and damages. The evidence fails to show any negotiations for a compromise were then under way. [Moore v. Gaus & Sons Mfg. Co., 113 Mo. 98, 111, 20 S.W. 975.] In fact the appellant denies that he had any such conversation with the respondent, and did not claim in his testimony that any effort was ever made to compromise.
Ben Wheeler, one of the employees of the appellant, who used the team and buggy, was offered as a witness by the appellant. He testified that Waddell did not authorize him to hire the rig, and that he did not authorize Beasley to do so in his presence. On cross-examination, and for the purpose of impeachment, he was asked this question: "I will ask you if some feeling did not arise between you and Tom Waddell, and if you in the presence of Breedlove and Kline did not say that Tom Waddell, the son of a bitch, would not pay anything; he owed you and had checks for you to the amount of $ 170, and he beat George Paris out of an honest livery bill." The appellant's counsel made the following objections: "I object to that; it don't tend to prove any issue in this case." The objection was overruled and appellant saved his exception, and now claims that error was committed by the court in overruling the objection. The witness denied having any such conversation. The testimony was admissible. The witness had testified that Waddell did not owe the livery bill and it was sought to show that he had made a statement that Waddell was trying to beat Paris out of the bill, and it was an honest one.
Breedlove was placed upon the stand and the following question asked him: ...
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