Deubler v. United Rys. Co.

• Decision Date: 05 July 1916
• Docket Number: No. 14429.,14429.
• Citation: 187 S.W. 813,195 Mo. A. 658
• Parties: DEUBLER v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

187 S.W. 813

195 Mo. A. 658

DEUBLER v. UNITED RYS. CO. OF ST. LOUIS.

No. 14429.

St. Louis Court of Appeals. Missouri.

July 5, 1916.

Rehearing Denied July 18, 1916.

Appeal from St. Louis Circuit Court; Rhodes E. Cave, Judge.

Action by Bernhard Deubler against the United Railways Company of St. Louis. Judgment for defendant, and plaintiff appeals. Affirmed.

Henry E. Haas and John B. Dempsey, both of St. Louis, for appellant. Boyle & Priest and Paul U. Farley, all of St. Louis, for respondent.

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 employés, 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 6 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 subpœnaed 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 subpœnaed and that accompanying the subpœna 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 subpœna which he produced and which required his appearance before the court in which the case was pending at 10 o'clock a. m., on March 2nd, 1914, to testify as a witness in the cause on behalf of defendant, and that there was a card attached to this subpœna asking him to call at the office of the United Railways Company, giving its location, at 9 o'clock of the date set for the trial (that is, 10 o'clock a. m., March 2nd, but in point of fact the trial did not come off until the following day, March 3rd); that in response to this card he called at the office of defendant at 9 o'clock, March 2nd. He further testified on this cross-examination that he had known defendant for 25 years and had never known of his being charged with disturbance of the peace, or drunkenness, or with assault and battery, or with any offense against the laws of the state of Missouri or the city of St. Louis, although he knew that he drank and was not a teetotaler.

On redirect examination this witness testified that he had gone voluntarily to the office of defendant and when he got there there were witnesses in a number of cases to which defendant was a party, present, these cases pending in other divisions of the circuit court; that the claim agent told these several witnesses when the case in which they were subpœnaed was coming up and when to go over to the court, and if the case was not coming up right away, the claim agent told them to go about their business and he would let them know when to come back.

Defendant then recalled the witness Callahan, who testified, on direct examination, that he was present at the time of the conversation the day before between Officer Scherzinger and Mr. Slough. Asked if he remembered what Officer Scherzinger had said at that time in regard to plaintiff, witness answered: "Well, he said he knew him all his lifetime, and they went to school together; and he was windy and a booze-fighter; and he left the impression that he was a hard case, you see." Counsel for defendant then asked this witness: "Did he (Officer Scherzinger) say anything about him being a disturber?" Whereupon counsel for plaintiff said: "I certainly want to object; certainly, the objection on the ground that Mr. Farley's question is leading." The Court: "That is the same question he put to the previous witness. He may answer." This ruling of the court was excepted to by counsel for plaintiff and witness answered that Officer Scherzinger had said that plaintiff "was a disturber and a booze-fighter, and no good;" that he had known him "all his lifetime and they went to school together." On cross-examination by counsel for plaintiff the witness testified that he was not acquainted with plaintiff; might have heard of him before but had no dealings with him.

This is practically all the testimony that is brought up to us by this abstract.

In overruling the motion for a new trial the learned trial court handed down a memorandum opinion, which has been brought up to us by appellant. In this memorandum the court said that counsel for plaintiff, in support of the motion for a new trial, urges particularly as error, the action of the court in allowing defendant to impeach its own witness, Officer Scherzinger. The learned trial court says of this:

"That counsel overlooks the fact that when the impeaching testimony of which he now complains was offered, he failed to object thereto, or to sufficiently call the court's attention to the fact that he was objecting thereto on account of the fact that defendant was impeaching its own witness. The record discloses the fact that defendant placed Officer Scherzinger on the stand, and in reply to counsel for defendant's questions it was immediately evident to the court that it was a clear case of surprise; and Officer Scherzinger himself testified that he had, shortly prior to the trial, been to the defendant's office or witness room and had there made certain statements, which were, in the opinion of the...