Davenport v. Silvey

• Decision Date: 30 June 1915
• Citation: 178 S.W. 168,265 Mo. 543
• Parties: J. J. DAVENPORT, Appellant, v. JAMES M. SILVEY
• Court: Missouri Supreme Court

178 S.W. 168

265 Mo. 543

J. J. DAVENPORT, Appellant, v. JAMES M. SILVEY

Supreme Court of Missouri, First Division

June 30, 1915

Appeal from Jasper Circuit Court. -- Hon. David E. Blair, Judge.

Affirmed.

Frank P. Walsh and R. A. Mooneyham for appellant.

It is the well-settled law of this State, that in actions for damages, growing out of assault and battery, and in civil actions generally, any evidence touching the character of either party to the suit, is clearly inadmissible, and cannot be inquired into, unless it is put in issue by the nature of the proceeding itself or has been first supported by the adversary. Boggs v. Lynch, 22 Mo. 563; Gutzmiller v. Lackman, 23 Mo. 168; Rogers & Gillis v. Troot's Admr., 51 Mo. 474; Dudley v McClure, 65 Mo. 241; Vawter v. Hultz, 112 Mo 634; Stark v. Knapp & Co., 160 Mo. 549; Black v Epstein, 221 Mo. 304; Lumber Co. v. Hartman, 45 Mo.App. 647; Alkire Gro. Co. v. Tagart, 78 Mo.App. 166; Lyon v. Dose, 81 Mo.App. 72; Gordon v. Miller, 111 Mo.App. 342; Stewart v. Watson, 133 Mo.App. 45; Hatch v. Bayless, 164 Mo.App. 218; Shoffner v. Fink, Admr., 163 Mo.App. 113; State v. Green, 229 Mo. 642.

O. L. Cravens for respondent.

(1) In order to show that the evidence was erroneously admitted and to convict the trial court of error under the issues it devolved on plaintiff to show by his bill of exceptions that he made timely and a proper form of objection thereto, stating the very ground of his objection. A general objection of inadmissibility does not suffice. His objections should have been specific. James v. Kansas City, 85 Mo.App. 20; Fuller v. Robinson, 230 Mo. 22; Stevens v. Insurance Co., 153 Mo.App. 196; Goyle v. Car Co., 177 Mo. 427; Stark v. Knapp, 160 Mo. 529; Russell v. Glasser, 93 Mo. 353; Western v. Flanagan, 120 Mo. 61. And timely; Wills v. Railroad, 133 Mo.App. 625; Wall v. Casualty Co., 111 Mo.App. 504; Hill v. Bailey, 8 Mo.App. 85; Fullerton v. Fordyce, 144 Mo. 519; Casualty Co. v. Kacer, 169 Mo. 301. (2) The rule in regard to the admissibility of evidence, as to the general reputation of plaintiff for peace and quietude, is not well stated by plaintiff. Although it is the general rule that such testimony is not admissible, yet it can be inquired into if the nature of the proceeding under the issues makes plaintiff's general reputation for peace and quietude material, and involved in the suit by the defense made. The evidence of plaintiff's previous general reputation being bad for peace and quietude is admissible as an exception to the general rule. And this would be true, whether plaintiff himself put his own character in issue; the circumstances and the defense make it material. State v. Roach, 64 Mo.App. 413; State v. Hicks, 27 Mo. 588; State v. Keene, 50 Mo. 357; State v. Bryant, 55 Mo. 75; State v. Elkins, 63 Mo. 159; State v. Downs, 91 Mo. 19; State v. Feeley, 194 Mo. 300; State v. Zorn, 202 Mo. 29; In re Imboden's Estate, 128 Mo.App. 573. (3) Where justification for the punishment inflicted by defendant upon plaintiff, by way of self-defense, is pleaded, it is competent to show the reputation of the opposite party to be quarrelsome or otherwise. Golder v. Lund, 50 Neb. 867; Beckman v. Souther, 68 N.H. 381; Silliman v. Sampson, 59 N.Y.S. 923; Knight v. Smythe, 57 Vt. 529; Harrison v. Harrison, 43 Vt. 417; Keep v. Quallmann, 68 Wis. 451; Spain v. Rakestraw, 79 Kan. 758; McQuiggan v. Ladd, 79 Vt. 90; Lowe v. Ring, 123 Wis. 107; State v. Green, 229 Mo. 642.

GRAVES, J. Bond, J., concurs in result.

OPINION

GRAVES, J.

Action for damages for alleged injuries received from an assault and battery. Judgment went for defendant in the lower court, and plaintiff has appealed. The amount sued for gives this court jurisdiction. The trial court struck out much of plaintiff's petition, and we think rightfully so. Counsel for plaintiff no doubt reached the same conclusion, as the point seems to have been abandoned. The petition left, after having been pruned by the court, reads:

"Comes now the plaintiff and for his first amended petition, in his cause of action vs. the defendant, James M. Silvey, says on January 6, 1909, he called at the home of the defendant and was by him admitted into his house, and while sitting in a chair in the home of defendant, near Racine, in Newton county, Mo., talking with the defendant, the defendant without any provocation wilfully, maliciously and wrongfully assaulted plaintiff with an iron bar, and struck and beat plaintiff on his hand, arm and head and seriously injured plaintiff, in this, to-wit; that his head, arms, limbs, neck, back, breast and spine were wounded, bruised, injured and contused, and that he was made sick, sore and lame thereby; that as result thereof, he has become afflicted with incurable pains in his head, suffers from dizziness and vertigo, has lost his natural rest and sleep; his hearing has become impaired and he has been rendered partially deaf, and he sustained a severe and lasting shock to his entire nervous system; that all of said injuries are permanent and lasting in their nature, all to his damage in the sum of $ 5000 actual damages and $ 5000 punitive damages, wherefore plaintiff prays judgment vs. defendant for the sum of $ 5000 actual damages and $ 5000 punitive damages, and for his costs."

To this petition the defendant thus answered:

"Defendant, for amended answer to plaintiff's amended petition, denies each and every allegation therein contained. For further answer, defendant states that on or about the -- day of plaintiff entered defendant's dwelling house, against his will and without his consent, and refused to leave upon being ordered so to do by defendant. The plaintiff there with threat of violence, made an assault upon defendant in his home, whereupon defendant struck plaintiff to repel such assault; that defendant in so doing used no more force than appeared to be reasonably necessary to protect himself from the infliction of great bodily harm at the hands of plaintiff, and that which was apparently impending and about to fall, and that such stricking was so done, in the necessary defense of himself and the protection of his home, therefore defendant asks to be discharged, and for his acts in this behalf incurred."

Reply was a general denial.

We have an exceedingly abbreviated bill of exceptions in this case. The evidence in the case is disposed of in the bill of exceptions in this fashion:

"The plaintiff to sustain the issues on his part introduced evidence tending to support the allegations of the petition.

"The defendant to sustain the issues on his part introduced evidence tending to support the allegations in his amended answer.

"The court permitted the defendant, over the objection of the plaintiff, and his exceptions thereto, to present evidence to the jury tending to prove that the character and reputation of the plaintiff, for turbulence and violence were bad, when no evidence had previous by been offered upon the part of the plaintiff to prove that they were good.

"In rebutal, plaintiff offered testimony to establish his good reputation in that respect. This was all the evidence offered tending to prove upon the part of either party, the character and reputation of plaintiff for turbulence and violence."

The bill of exceptions then sets out instructions 1, 2, 3, 4, 5, 6, 7 and 8 as having been given for the defendant over plaintiff's objections and exceptions. It then sets out instructions 1, 2, 3 and 4 as having been given by the court of its own motion, but over the objection and exceptions of plaintiff. The bill of exceptions then sets out the usual instruction upon the form of verdict, to which no objection was made or exception saved.

The bill of exceptions then contains this further recital:

"The foregoing are all the instructions given by the court of its own motion or at the instance of either party, and upon the same the case was argued and submitted to the jury, which on the 12th day of March, 1912, returned a verdict in behalf of the defendant, reading as follows: 'We the jury find the issues in favor of the defendant.'"

The motion for new trial as preserved in the bill of exceptions, recites the following reasons for a new trial:

"1. The verdict is against the law.

"2. The verdict is against the evidence and the weight of the evidence.

"3. The verdict is against the law and the evidence.

"4. The court erred in admitting improper and incompetent and irrelevant testimony offered on the part of the defendant over the objection of the plaintiff, made at the time.

"5. The court erred in refusing proper, legal and competent evidence offered on the part of the plaintiff, on the objection of the defendant.

"6. The court erred in refusing instructions A, B, C, D, E, F, G, H, I, J, K, L and M as offered and requested by plaintiff.

"7. The court erred in giving instructions marked 5, 6, 7, 8, 9, 10, 11, and 13 as requested by defendant.

"8. The court erred in giving instructions marked 1, 2, 3 and 4 of its own motion.

"9. The court erred in permitting counsel J. W. Halliburton in his closing argument to the jury to go outside of the record and the law and evidence of the case and discuss matters wholly irrelevant to the case.

"10. The verdict is not based upon or supported by the evidence nor by the law as given to the jury in the instructions of the court, but is the result of bias and prejudice on the part of the jury.

"11. For other good and sufficient reasons and errors occurring on the trial which are apparent from the face of the record."

We have gone into the bill of exceptions fully because of questions raised. In fact we have practically given all of the bill of exceptions, except the instructions mentioned and set out therein. These...