Day v. Lusk

• Decision Date: 02 March 1920
• Docket Number: No. 20893.,20893.
• Citation: 219 S.W. 597
• Parties: DAY v. LUSK et al.
• Court: Missouri Supreme Court

219 S.W. 597

DAY v. LUSK et al.

No. 20893.

Supreme Court of Missouri, Division No. 1.

March 2, 1920.

Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.

Action by Gail Day against Jamas W. Lusk and others, receivers of the St. Louis & San Francisco Railroad Company. From an order granting a new trial after verdict for defendants, defendants appeal. Reversed, with directions.

C. P. Hawkins, of Kennett, for respondent.

W. F. Evans, of St. Louis, and Ward & Reeves, of Caruthersville, for appellants.

SMALL, C.

I. Plaintiff sued defendants for alleged personal injuries by reason of the derailment of one of their trains on February 5, 1914, between Pascola and Hayti in Pemiscot county, Mo. There was a verdict for the defendants, but the court granted plaintiff a new trial, "for the reason that the court permitted the introduction of incompetent testimony over the objections of the plaintiff." Defendant has appealed from the order of the court granting such new trial. The plaintiff's motion for new trial specifically pointed out certain testimony which he deemed incompetent. It related to the deposition of the witness, Sam Lambert, and the objection was that said Lambert had been a convict for forgery in Tennessee, a convict in Arkansas, also in Missouri, and was in the penitentiary in Missouri when his deposition was taken, and that he had never been pardoned, paroled, or had his sentence commuted in either of these states; also that said Lambert admitted that he had been assured by one Taylor, an agent of defendants, that he would not be prosecuted if he would state that the plaintiff had aided in derailing the train. There was also a general ground in the motion for new trial that the court erred in admitting illegal and incompetent testimony for the defendants. There was evidence, independent of Lambert's, that he and the plaintiff were not strangers, but were more or less acquainted and friendly associates before the alleged injury; also independent circumstantial evidence tending to prove that the train was wrecked by persons of evil-disposed minds. The record shows that all of the convictions of Lambert were since 1905. Plaintiff has not appeared nor filed any brief in this court.

II. Inasmuch as the lower court specified the ground upon which it granted a new trial, as admitting incompetent evidence, it will be presumed that such new trial was granted for that reason alone. Gould v. St. John, 207 Mo. loc. cit. 631, 106 S. W. 23; Millar v. Madison Car Co., 130 Mo. 517, 31 S. W. 574. We shall therefore confine our consideration of the case to such alleged incompetent testimony.

III. Was the testimony of the convict Lambert competent evidence? In 1895 the Legislature of this state enacted the following statute (section 6383, R. S. 1909):

"Any person who has been convicted of a criminal offense is, notwithstanding, a competent witness; but the conviction may be proved to affect his credibility, either by the record or by his own cross-examination, upon which he must answer any question relevant to the inquiry, and the party cross-examining shall not be concluded by his answer."

This statute is not limited to persons convicted in this state, but its language is general, and embraces any person convicted of a criminal offense, without regard to the place where he was so convicted. Lambert was convicted of all his crimes since the enactment of said statute. He was therefore a competent witness, although convicted in Tennessee and Arkansas, as well as in this state. Such convictions affected only the weight...