Trook v. Sagert

Decision Date22 June 1943
PartiesTROOK v. SAGERT ET AL.
CourtOregon Supreme Court
                  See 20 Am. Jur. 239
                  31 C.J.S., Evidence, § 371
                

Before BAILEY, Chief Justice, and ROSSMAN, BRAND and HAY, Associate Justices.

Appeal from Circuit Court, Linn County.

L.G. LEWELLING, Judge.

Action by George Trook against Charles Sagert and another to recover for injuries sustained as a result of an assault committed upon plaintiff. Judgment for plaintiff, and named defendant appeals.

AFFIRMED.

Frank D. Mayer, of Lebanon, and John H. Carson, of Salem, (Carson & Carson, of Salem, on the brief), for appellant.

Arthur K. McMahan, of Albany (J.K. Weatherford, Jr., of Albany, on the brief) for respondent.

ROSSMAN, J.

This is an appeal by the defendant (appellant) from a judgment of the circuit court in favor of the plaintiff (respondent) in the amount of $2,000. The judgment is based upon a verdict. The complaint averred that the defendant, on October 31, 1940, assaulted, beat and clawed the plaintiff. The answer is a general denial.

The appellant presents only one assignment of error. It challenges a ruling of the trial judge which overruled the defendant's objection to a question propounded to Mrs. D.C. Bellinger, a witness for the plaintiff. The appellant's brief says: "The testimony of Mrs. D.C. Bellinger was wholly irrelevant and should have been rejected by the Court." In support of that proposition, the appellant cites § 2-226, O.C.L.A., and 31 C.J.S., Evidence, § 212, p. 946.

The foregoing is the only contention the appellant makes.

The section of our code just mentioned says:

"Evidence shall correspond with the substance of the material allegations, and be relevant to the questions in dispute. Collateral questions * * *." Corpus Juris Secumdum, at the aforementioned page, says:

"A declaration is rejected as irrelevant where it has no bearing on the existence of any disputed fact, or where it is not sufficiently connected with the party so as to affect him. * * * Likewise a statement or declaration is inadmissible where it is not sufficiently connected with the party so as to affect him and thereby become relevant * * *."

The testimony given by Mrs. Bellinger, after the defendant's objection had been overruled, follows:

"Just as I came out of the store, I was window shopping a little bit, and I saw him standing there and talking to a gentleman I didn't know. I recognized Mr. Sagert.

"The Court: Tell what was said.

"A. I heard him speak about the Plagmanns, and that is how I happened to notice him.

"Mr. McMahan: Did he mention the Palmers?

"A. Yes, and he said, `I tried to scratch the God dam-son of a bitch's eyes out.'"

In her testimony Mrs. Bellinger mentioned neither time nor place.

All of the above testimony was subject to the defendant's objection: "Incompetent, irrelevant and immaterial."

The defendant contends that Mrs. Bellinger's testimony fails to indicate that the defendant's purported declaration referred to the plaintiff. Seemingly, if the record warrants a logical inference that the defendant, by the use of the profane words, meant the plaintiff, that is, if the plaintiff's name, George Trook, can be substituted for the vile epithet, then the objection was properly overruled.

After Mrs. Bellinger had given her testimony, the defendant was asked:

"Did you ever tell a man on the street in Lebanon in the presence of this lady who testified — in the presence of Mrs. Bellinger that you tried to scratch his eyes out?"

He answered:

"I never saw Mrs. Bellinger until she got on the witness stand — never in my life."

That was his sole reference to Mrs. Bellinger and to her testimony. It will be seen that the defendant did not answer the question propounded to him. In the question put to the defendant, the words "his eyes" clearly meant the plaintiff's eyes.

We shall now review some of the circumstances developed by the evidence for the purpose of determining whether an inference can logically be drawn that the vile epithet referred to the plaintiff.

Before Mrs. Bellinger testified, other witnesses had developed the facts which we shall now relate. In May of 1940 the defendant's wife was committed to the State Hospital and at a subsequent time Carroll Sagert, the son of the couple, was appointed guardian for his mother. Shortly prior to October 31, 1940, the defendant filed a petition requesting that he be appointed guardian.

October 31, 1940, the county court of Linn county held a hearing upon the defendant's petition, in the course of which the plaintiff gave testimony which displeased the defendant. The session of court adjourned in midafternoon and thereupon the plaintiff, in the company of Mr. and Mrs. C.A. Plagmann and Mr. and Mrs. S.A. Palmer, proceeded to leave the courthouse by a broad flight of outside stairs which leads to the ground level. When the plaintiff was upon the staircase he heard the defendant, so he swore, approach him from the rear and declare: "Shorty, you dirty lying son of a bitch." The plaintiff testified that as the defendant uttered those words he (defendant) struck at the plaintiff, grabbed him, and the two fell. We now quote from the plaintiff's testimony:

"The next thing I remember he was on top of me, and he reached under me with his right hand and tried to reach for my eyes, and I kept throwing my head back against him, and he kept on reaching for my eyes and finally he couldn't reach my eyes and he gave three scratches right here with his fingernails.

"Q. Which cheek was it?

"A. The right cheek."

As we said, the plaintiff testified that he left the courthouse in the company of Mr. and Mrs. Palmer and Mr. and Mrs. Plagmann. That part of his testimony is unquestioned by the defendant. The defendant himself swore that the Palmers and the Plagmanns were near at hand when the fracas occurred. It will be recalled that Mrs. Bellinger testified that she heard the defendant mention the Palmers and the Plagmanns before he made his purported declaration about having tried "to scratch the God-dam son of a bitch's eyes out."

The plaintiff testified, as we have indicated, that the defendant "kept on reaching for my eyes and finally he couldn't reach my eyes and he gave three scratches right here with his fingernails." In response to more questioning, he swore that the scratches were on his right cheek about an inch below the eye. In fact, the plaintiff several times swore that the defendant tried to get his fingers into the plaintiff's eyes.

Mr. Carl A. Plagmann aforementioned testified that while he was going down the outside steps of the courthouse the defendant greeted the plaintiff with the profane language which the plaintiff, as a witness, had repeated. He also described the scuffle that took place between the plaintiff and defendant. We now quote from his testimony:

"Mr. Sagert was working at Trook's eye * * * it was apparent that he was trying to get his fingers in his eye."

At another part of his testimony Plagmann, referring to the defendant's efforts to reach the plaintiff's eyes, said:

"I know one hand was working toward his eye."

Plagmann, upon seeing the situation, tried to separate the two men as they rolled about upon the stairs. Finally, he succeeded in separating them, and at that point, according to his testimony, "I noticed there was some scratches on Mr. Trook's eye."

The aforementioned Mrs. Palmer testified that as the group of five (the Palmers, Plagmanns and the plaintiff) were descending the stairs together, the defendant applied to the plaintiff the profane appellation which the other witnesses had repeated. After testifying that Plagmann separated the two men from their encounter, she said that the plaintiff's "face was scratched. * * * Blood was on his face from scratches."

The defendant, as a witness, conceded that the Palmers, the Plagmanns and the plaintiff left the courthouse ahead of him and then swore that he addressed the plaintiff thus: "Shorty, you are the God-damnedest liar I ever heard in my life on the witness stand." He claimed that the plaintiff was the aggressor and that he (defendant) was knocked to the steps. His counsel then asked him:

"The plaintiff, Mr. Trook, said his face was scratched,...

To continue reading

Request your trial
21 cases
  • State v. Longo
    • United States
    • Oregon Supreme Court
    • November 9, 2006
    ...the existence of any fact that is of consequence to the determination of the action more probable or less probable"); Trook v. Sagert, 171 Or. 680, 690, 138 P.2d 900 (1943) ("If a rational relationship does not exist between the item of evidence offered and the fact which a party must prove......
  • Carter v. Moberly
    • United States
    • Oregon Supreme Court
    • October 19, 1972
    ...types of evidence or for reasons of public policy, various types of evidence are excluded, even though relevant. Cf. Trook v. Sagert, 171 Or. 680, 688, 138 P.2d 900 (1943). To be relevant evidence must have probative value. In order to be relevant, however, it is not necessary that the evid......
  • State v. Johnson
    • United States
    • Oregon Court of Appeals
    • April 27, 2005
    ...scheme or plan" to a level of generality that equates the expansive standard for relevance in OEC 401, see, e.g., Trook v. Sagert, 171 Or. 680, 688, 690, 138 P.2d 900 (1943) (evidence is relevant when it "will advance the search for truth" or "throws some light on the issue"), with the conn......
  • State v. Lerch
    • United States
    • Oregon Supreme Court
    • February 8, 1984
    ...this state, if a fact 'will advance the search for truth' or 'throws some light upon the issue,' it is relevant. Trook v. Sagert, 171 Or. 680, 688, 690, 138 P.2d 900 (1943). Similarly, evidence is relevant and is admitted if it 'logically tends to prove the essential fact.' Tanner v. Farmer......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT