Bernard's v. Austin

• Decision Date: 08 October 1927
• Docket Number: (No. 9979.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 300 S.W. 256
• Parties: BERNARD'S, Inc., v. AUSTIN.
• Court: Texas Court of Appeals

300 S.W. 256

BERNARD'S, Inc., v. AUSTIN.

(No. 9979.)^*

Court of Civil Appeals of Texas. Dallas.

October 8, 1927.

Rehearing Denied and Hearing on Appellee's Motion for Additional Findings of Fact, December 10, 1927.

Appeal from District Court, Dallas County; T. A. Work, Judge.

Action by E. L. Austin against Bernard's, Inc. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Caldwell & Gillen and Ballowe & King, all of Dallas, for appellant.

Crane & Crane and Edward Crane, all of Dallas, for appellee.

VAUGHAN, J.

This is an appeal from a judgment rendered in the trial court awarding appellee actual damages in the sum of $2,000 and exemplary damages in the sum of $500 on account of a libel alleged to have been published by appellant of and concerning appellee. In his petition appellee in effect alleged that he had been damaged in the sum of $5,000 actual and $10,000 exemplary damages on account of the mailing by appellant, acting through one S. T. Kaufman, in its service as collector, two letters to Graham-Brown Shoe Company, a private corporation, with its principal office and place of business in the city of Dallas, Tex., the employer of appellee, advising said shoe company that appellee had given to appellant an assignment of his wages to pay appellant for certain clothing purchased at appellant's store in Dallas, Tex.; appellee further alleging that he was not so indebted to appellant, and did not even know of the existence of appellant's place of business in the city of Dallas, and had never executed, or authorized any one to execute for him, an assignment of his wages to appellant, and further alleged that said letters were malicious and untrue; that, if any such assignment had been made by his wife, Mrs. E. L. Austin, same was without appellee's knowledge and consent.

Appellant answered by way of a general demurrer, various special exceptions, special denials, and pleaded in mitigation of damages certain facts and letters written subsequently by it, upon discovering the mistake made by S. T. Kaufman, its collector, in writing the letters of date November 6 and November 11, 1925, furnishing the basis of appellee's suit. The cause was submitted to a jury on special issues, which resulted in a verdict and judgment in the sum of $2,500 in favor of appellee on the 22d day of June, 1926. Appellant, by its propositions Nos. 1, 2, and 3, presents to us for review the following proceedings:

While S. T. Kaufman, the only witness introduced by appellant, was under cross-examination, the following question was propounded to him by appellee: "As a matter of fact, several years ago you were sent to the penitentiary from Dallas for receiving and concealing stolen property?"—which he was required to answer, and did answer over timely and proper objections made thereto by appellant: "Yes, sir; more than 14 years ago."

As an original proposition, this evidence was admissible for the purpose of impeaching the witness, and, standing alone, the objection on the ground that it was an improper method of impeaching a witness in a civil case, because the witness could not be impeached, except by proof of his general reputation for truth and veracity, would have been properly overruled. Gulf, Colorado & Santa Fé Ry. Co. v. Gibson, 42 Tex. Civ. App. 306, 93 S. W. 470; Huff v. McMichael, 60 Tex. Civ. App. 379, 127 S. W. 574; Wigmore on Evidence (2d Ed.) vol. 2, p. 361, § 980; Lights v. State, 21 Tex. App. 308, 17 S. W. 428; Clayton v. State (Tex. Cr. App.) 22 S. W. 404; Couch v. State, 103 Tex. Cr. R. 188, 279 S. W. par. 6, at page 824. We are aware of the decisions by other courts holding contrary to the rule of decision in the cited cases supra. But we prefer to follow what appeals to us as being that rule of decision calculated to best safeguard the rights of litigants under judicial determination.

The fact of his conviction was provable by the witness on cross-examination; it not being necessary to produce the record of his conviction for that purpose. Lights v. State, supra; Bratton v. State, 34 Tex. Cr. R. 477, 31 S. W. 379; Levine v. State, 35 Tex. Cr. R. 647, 34 S. W. 969; Jones v. State, 44 Tex. Cr. R. 405, 71 S. W. 962; Curtis v. State, 46 Tex. Cr. R. 480, 81 S. W. 29.

The fact that the witness had been pardoned does not change the rule. Wormley v. State, 65 Tex. Cr. R. 48, 143 S. W. 615; Perry v. State, 69 Tex. Cr. R. 644, 155 S. W. 263; Bennett v. State, 24 Tex. App. 73, 5 S. W. 527, 5 Am. St. Rep. 875. However, a different phase as to the admissibility of the evidence was presented by the testimony of the witness that the conviction was more than 14 years ago. Based upon this, appellant moved that the question and the answer be excluded, and that the jury be instructed not to consider same, on the ground that the conviction was too remote, which the court overruled.

Appellee here contends, and, no doubt, so contended in the court below, that the time of confinement in the penitentiary should not be taken into account as a portion of the period of time required to create the presumption of reformation on which rests the rule of evidence known as the "doctrine of remoteness," resorted to for the purpose of preventing the use of the conviction for a crime to impeach one offered as a witness in a judicial proceeding, this because it would be unreasonable to presume that one convicted for a crime had experienced a reformation during the time that he was doing penal servitude; that the reformation, from the very nature of the environments of the offender, could only be presumed to have begun after the termination of the period of penal servitude. To this we cannot agree. The purpose of the law, in inflicting punishment, is now, and has been for time immemorial, to mete out to the offender punishment commensurate with the crime — first, to punish the offender for the offense committed; second, to deter him and others from committing like offenses; and, third, to reform the offender. It being, therefore, part of the law of punishment to accomplish reformation through the means of the punishment inflicted, by what process of reasoning, in keeping with the well-known fundamental rules of logic, can the conclusion be reached that reformation cannot take place as result of the punishment during the time it was inflicted?

Certainly a bare presumption that the law had not accomplished, at least to the extent of putting in motion those attributes of the mind through and by which reformation can only be accomplished during imprisonment, would be but to declare the impotency of the law in so far as the purpose of punishment being to reform an offender; this would be but the declared purpose and intent of the law in this respect being destroyed by a presumption within the law that its purpose could not be accomplished — in other words, the declared purpose of the law being destroyed by a presumption within its own terms. We think the logic of the situation rather impels one to the conclusion that the infliction of punishment carries with it the presumption — disputable, it is true — that through the punishment inflicted on one for the commission of a crime that reformation during the period that punishment was being inflicted was set in motion by and continued throughout the punishment as result thereof. We therefore hold that the period of time in which reformation of the witness S. T. Kaufman should be presumed to have taken place dated with the beginning of his penal servitude.

We are of the opinion that, when it was disclosed by the testimony of the witness S. T. Kaufman that he had served a term in the penitentiary under a conviction 14 years previous to the date when he was testifying, appellant's objection should have been sustained on the ground that the conviction of the witness was too remote, unless proof had been offered by appellee showing that witness had not reformed. If in this conclusion there should be any doubt, certainly in the face of the positive proof of reformation that had taken place during the 14 years since the date of the conviction of the witness Kaufman, there can be no question but that the court erred in not excluding said testimony, namely, the witness testified that he was granted a conditional pardon by Gov. James E. Ferguson, and later on an absolute pardon by Gov. Pat Neff; had been for many months, and was then, engaged in employment which imposed confidence and trust in said witness by his employer, the appellant, and had been promoted from the position of a collector to that of store manager by appellant for its Dallas store; before being promoted, worked for several months with appellant in his principal place of business in New Orleans, La.

Assuming the burden of proof rested upon appellant to make proof of the reformation of the witness Kaufman, the evidence, introduced by appellant as to the reformation of said witness, was sufficient to discharge that burden. The admission in evidence of the conviction of the witness Kaufman for the purpose of impeaching him became material error, because of the following conflict in the testimony of said witness and that of the appellee: The witness Kaufman, being interrogated in reference to the letter written by him in behalf of appellant to Graham-Brown Shoe Company, advising that a mistake had been made in the claim that appellee had assigned his wages to appellant, testified:

"At the time I wrote that letter, Mr. Austin had 'phoned me. He said, if I would write a letter to the company, that would be satisfactory; that would settle the matter. Mr. Austin said that to me. It is not a fact that the only conversation Mr. Austin ever had with me or Mr. McIlhenny about this was when he had an interview with us and demanded that we produce that written assignment."

In reference to the same matter, appellee testified as follows:

"I did not tell him [referring to the witness Kaufman], if he would write that letter, that...