Deubler v. United Railways Company of St. Louis

• Decision Date: 05 July 1916
• Citation: 187 S.W. 813,195 Mo.App. 658
• Parties: BERNHARD DEUBLER, Appellant, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Respondent
• Court: Missouri Court of Appeals

187 S.W. 813

195 Mo.App. 658

BERNHARD DEUBLER, Appellant, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Respondent

Court of Appeals of Missouri, St. Louis

July 5, 1916

Argued and Submitted June 5, 1916.

Appeal from St. Louis City Circuit Court.--Hon. Rhodes E. Cave Judge.

AFFIRMED.

Judgment affirmed.

Henry E. Haas and John B. Dempsey for appellant.

(1) The rule is firmly established in Missouri that a party cannot either in a civil or criminal case, discredit or impeach his own witness by evidence of contradictory statements previously made, unless he was entrapped or misled by some artifice, or by some statement made to him or by someone on whom he had a right to rely, or unless there is an express statute authorizing the admission of such evidence. State v. Bowen, 263 Mo. 279; Rodan v. St. Louis Transit Co., 207 Mo. 392; Beier v. St. Louis Transit Co., 197 Mo. 215; Feary v. O'Neil, 149 Mo 467; Imhoff v. McArthur, 146 Mo. 371; State v. Burks, 132 Mo. 363; Dunn v. Dunnaker, 87 Mo. 597; Brosius v. Lead & Zinc Co., 149 Mo.App. 181; Joyce v. St. Louis Transit Co., 111 Mo.App. 565; Creighton v. Modern Woodmen, 90 Mo.App. 378; Hickory v. United States, 151 U.S. 303; 10 Ency. Plead. & Prac., 316; Jones on Evidence (2 Ed.), secs. 853 and 854. (2) The reason for the rule is said to be that it would enable a party to destroy a witness if he spoke against him, and to make him a good witness if he spoke for him, with the means in his hands of destroying his credit if he spoke against him. And this could have no other effect than to coerce the witness. 2 Wigmore on Evidence, sec. 899; 32 Ann. Cases (1914 B.), 1120. (3) A party is not "entrapped" within the meaning of the rule, where the witness merely fails to give evidence which he was expected to give. In such case, his credibility is immaterial, as he has done no damage. Before the witness can be impeached he must become "adverse;" that is to say, his testimony must be actually hostile and prejudicial to the party calling him. It is not enough that he disappoints the expectations of such party by failing to give beneficial testimony. State v. Bowen, 263 Mo. 279; State v. Burks, 132 Mo. 363; Hickory v. United States, 151 U.S. 303; 30 Amer. & Eng. Ency. of Law (2 Ed.), 1132; 32 Ann. Cases. (1914 B.), 1131; 1 Words and Phrases, p. 236, Title "Adverse Witness." (4) There is no statute in Missouri which authorizes a party, under any circumstances, to impeach his own witness. It could not be done at common law and the common law of England is the rule of action and decision in this State. Sec. 8047, R. S. 1909; Hickory v. United States, 151 U.S. 303; Best on Evidence, sec. 645; Wharton on Evidence, sec. 549; 2 Elliott on Evidence, sec. 985; Wigmore on Evidence, sec. 896. (5) The Clancy case relied on by the trial court is distinguished and explained in two subsequent decisions of the Supreme Court. Beier v. St. Louis Transit Co., 197 Mo. 215; State v. Bowen, 263 Mo. 279. (6) In the circumstances of this case it was error for the court to give of its own motion instruction No. 4, touching the credibility of the witnesses, since it tended to divert the attention of the jury from the real issue in the case to an issue of veracity between the defendant's own witnesses. Keeline v. Sealy, 257 Mo. 498, l. c. 527; Rodan v. St. Louis Transit Co., 207 Mo. 392. (7) Where objections to the admission of evidence, properly taken, have been overruled and exception saved, it is not necessary to repeat the objection when the same species of evidence is subsequently offered; and it has been held that where an objection to incompetent evidence has once been properly taken and overruled, it is not necessary or even proper to repeat the objection when the same evidence is subsequently admitted through other witnesses. If, however, a second objection is interposed it need not repeat the specific grounds of objection. So where evidence has been excluded on a proper objection thereto, a general objection to an offer of substantially the same evidence thereafter will suffice. 8 Ency. Plead. & Prac., 229; 1 Thompson on Trials, sec. 705; 1 McQuillin's Missouri Practice, sec. 751; Schierbaum v. Schemme, 157 Mo. 1; Bailey v. Kansas City, 189 Mo. 503. (8) Indeed, it is said that if the inadmissibility of the evidence be apparent on its face, no casting around by the court for a ground of exclusion is necessary. 8 Ency. Plead. & Prac. 228, par. D.

Boyle & Priest and Paul U. Farley for respondent.

REYNOLDS, P. J. Nortoni and Allen, JJ., concur.

OPINION

REYNOLDS, P. J.

--This is an action commenced before a justice of the peace to recover damages alleged to have been sustained by plaintiff while a passenger on a car operated by defendant, it being charged that defendant, by its agents, servants and employees, with force and arms, and without any just reason or excuse, wrongfully, unlawfully and maliciously, made an assault upon plaintiff and beat, pounded and bruised him in his person and damaged him in his property. Plaintiff recovering before the justice, the cause was appealed to the circuit court, where on a trial before the court and a jury, there was a verdict for the defendant from which plaintiff has duly appealed.

The errors assigned are to the action of the court in permitting the defendant to impeach its own witness, and in giving, of its own motion, an instruction as to the credibility of witnesses, and to error in refusing to grant plaintiff a new trial. It is stated in the abstract before us that plaintiff, to sustain the issues on his part, offered and introduced evidence tending to prove the allegations of his petition, and that there were no witnesses to the assault other than the participants, and that without objection by defendant the plaintiff also introduced evidence in chief tending to prove his good character.

This is all the evidence which the abstract furnished by appellant sets out, except that the testimony of a police officer named Scherzinger, a witness called by defendant, and that given by one Callahan, recalled by defendant after Officer Scherzinger had testified, is given in full.

Referring to this it appears that Officer Scherzinger, on direct examination by counsel for defendant, testified that he was a member of the metropolitan police force of the city of St. Louis and had been such for six years and knew plaintiff. Counsel for defendant then asked him if he was acquainted with the reputation of plaintiff for sobriety and peacefulness, and he answered that he was. He was asked what it was, and he answered, "It is all right." He further testified under examination by counsel for defendant, that he had been subpoenaed on the part of defendant, and was asked if he had talked with anybody about this case, to which he said, "No." Counsel for defendant then asked him this question: "Didn't you talk with this man," indicating one Slough, "the claim agent?" Witness answered, "Why, yes." Whereupon counsel for plaintiff interposed, "We object upon the ground that he can't impeach his own witness." Whereupon counsel for defendant said: "I claim surprise." The Court: "It is clearly a case of surprise. He is entitled to impeach him, if he can." To this ruling counsel for plaintiff excepted.

The witness then testified on further examination by counsel for defendant, that he had been subpoenaed and that accompanying the subpoena was a card asking him to call at the office of the defendant; that he called there and had talked with Mr. Slough. He was asked if he had said anything to Mr. Slough about plaintiff drinking, to which he answered: "Why, they asked me if I knew him, and I told them, 'Yes,' and he says: 'How long have you known him,' and I says, 'All my life.' And he says, 'What do I know? Is he a drinking man?' I said, 'Yes; he drinks occasionally. I have seen him already drinking.'" He was asked: "Isn't it a fact that in that conversation you characterized him as a 'booze-fighter?'" to which he answered, "No, I don't know as I said that he was a booze-fighter." He was asked if he did not know that he had said that, and he answered, "No." Asked when this conversation took place between him and the claim agent, he said that it was the day before the trial. Asked if he did not now know what he then said, he answered, "No; I don't know if I called him a booze-fighter. Q. Didn't you say he was a disturber? A. Not as I remember. Q. Well, will you state now whether or not you said yesterday in that conversation that you are referring to that he was a disturber? A. No. I don't know that he ever disturbed anybody." Asked who was present at this conversation, he named, among others, Mr. Callahan. He further testified that he knew the plaintiff well but had not seen him since the time of this conversation referred to and had not seen him for three months; had not talked to him the morning of the trial; that no one else had talked to him since the time of the conversation when he said he (plaintiff) was a drinking man. Asked what else he said besides that plaintiff was a drinking man, he answered: "Well, all I says, that he drinks, and you know he is around when he is drinking." Asked what he meant by that, he said, "Well, I said he talks loud. Q. Well, he is not mean; that is what you meant to say by saying he is not a disturber? A. No; he is no disturber, at all. Q. But he doesn't object to a little friendly fight now and then, does he? A. Not as I know of. I never knew of him fighting. Q. He doesn't do anything but talk loud; that is all you had reference to, is it? A. That is all."

The witness was then turned over to counsel for plaintiff for cross-examination, and answering questions of that counsel he said that he had been served with a subpoena which he produced and which...