Dunbier v. Day
| Decision Date | 25 April 1882 |
| Citation | 12 N.W. 109,12 Neb. 596 |
| Parties | BENEDICT DUNBIER, PLAINTIFF IN ERROR, v. ALEXANDER P. DAY, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Butler county. Tried below before POST, J.
REVERSED AND REMANDED.
M. H Sessions, for plaintiff in error.
Robberts & Steele and Whitmoyer, Gerrard & Post, for defendant in error.
This is a petition in error from Butler county. In addition to the general verdict for the defendant there were two special findings of fact in his favor upon questions put to the jury by the court. These questions were: The answer given to each of these questions was "No."
On behalf of the plaintiff it is claimed that these answers are unsupported by the evidence, and we think the claim is well founded. Indeed, upon a careful reading of the entire testimony submitted to the jury, we fail to discover the least particle of support for them. That the sum of $ 1,650.00 was stolen from the plaintiff during the night that he was a guest at the defendant's hotel is placed by the evidence beyond all reasonable doubt, if any reliance can be put upon undisputed human testimony. The plaintiff, his wife and daughter unite in saying that he had this sum in fifty and one hundred dollar bills, in a portemonnaie by itself; that he and his daughter, in his wife's presence, counted it while seated at the supper table, on the evening of their arrival at the defendant's house, at which time the daughter gave him a one hundred dollar bill of her own which went to make up the amount. Immediately after this the plaintiff retired for the night, and he swears positively to the fact that the money, which was in a side pocket of his coat on a chair when he went to bed, the next morning when he awoke was gone, that it had been taken by some one unknown to him while he was asleep.
Against this positive testimony of these witnesses there is nothing whatever opposed, save the fact the defendant and some domestics who say they were "in and out of the dining room" while the plaintiff and his family were at supper, and did not see them count the money. This, however, is negative testimony, and while it may be entirely truthful, for the reason that neither of these witnesses was in the room during the entire time, does not, as we think, in the least degree shake the positive testimony of the plaintiff and his witnesses to the fact that the money was there counted precisely as they state. There must have been a total disregard of the testimony of the plaintiff, and of his wife and daughter, which was unwarranted by anything appearing in the record, or the jury could not have answered these questions as they did. And where it is clear that this has been done, it is good ground for a new trial.
Opposed to the claim of the plaintiff that his money was stolen from him at the defendant's house, the theory was advanced before the jury that the loss occurred in the railway coach, while on his way from Omaha to Rising, where the defendant lived. To establish this theory the defendant was permitted to introduce over the plaintiff's objection this testimony of the witness Turpining relative to searching the train on its return the next morning for the missing money.
Q. What, if anything, do you know about any one being sent down to search the train for the money the next morning?
Plaintiff objects as improper and immaterial in this case. Overruled and plaintiff excepts.
A. I know it was talked there about the time that the train came in, that it was possible the pocket book might have been lost on the train.
Q. Was this talk in the presence of Dunbier?
A. Yes, sir.
Q. State if Dunbier, through his interpreter, requested any one to search the train for that pocket book?
A. Not that I heard.
This testimony relative to the possibility of the loss having occurred on the train was wholly incompetent. The plaintiff had suggested no such thing, nor had he authorized any one to suggest it for him. His contention, which was in the German language, he neither speaking nor understanding English, constantly was that the money had been stolen from his pocket during the night, and even if other persons did suggest or claim that he had lost it elsewhere, he was not bound by it, and what they said in that respect ought not to have been used to his prejudice, as was done. The admission of this evidence is another good ground for a new trial.
It is also objected to the ruling of the court during the trial that the defendant was permitted to introduce evidence of his good character for honesty. Several witnesses were permitted to testify, against objections on the ground of incompetency, that they were acquainted with his reputation in this respect, and that it was good. In this it is clear that the court erred. The reported cases are substantially unanimous in holding that this sort of evidence is confined to criminal prosecutions and to civil cases where the nature of the action involves the general character of the party, or goes directly to affect it. "The character of the parties to a civil suit affords, in general, such a weak and vague inference as to the truth of points in issue between them, that it is not usual to admit evidence of this description." Phillips on Evidence, Cowen & Hill's and Edwards' Notes, 757, (4th ed)
In Gough v. St. Johns, 16 Wend. 645, overruling Ruan v. Perry, 3 Caines 120, Cowen J., in speaking of the admissibility of the defendant's good character said: And after instancing certain actions wherein it is admissible, adds: "But where a civil action is brought for an injury to property, though the injury was legally criminal, and involved moral turpitude, insomuch that on an indictment, evidence of character would be obviously receivable, there is no authoritive case except Ruan v. Perry, which favors its admissibility." On this point see also Morris v. Hazelwood, 64 Ky. 208, 1 Bush 208. Porter v. Seiler, 23 Pa. 424. Humphrey v. Humphrey, 7 Conn. 116. Boardman v. Woodman, 47 N.H. 120. Thayer v. Boyle, 30 Me. 475. Gutzwiller v. Lackman, 23 Mo. 168. 1 Greenleaf on Evidence, Sec. 54. This therefore being merely a civil action for the recovery of a money judgment whereby there is imputed to the defendant, at most, only a want of due care for the safety of his guest's property, his character for honesty being in no way necessarily involved, according to the well settled rule of these authorities, and numerous others cited by counsel, it should have been kept out of the case.
But counsel for the defendant in their brief assert that the record "fails to show any exception on this point which will be considered by this court." And this is, we think, correct. As to the witness Inglehart, no exception appears to have been taken to the overruling of the objection to the admission of this testimony. For aught that appears in the bill of exceptions counsel was entirely content with the ruling against them. To make an objection to the admission of illegal testimony available on a proceeding in error an exception to the ruling must be taken. And it must be taken at the time the decision is made. Civil Code, 308. But as to the witness Cook, an exception appears to have been duly taken to the ruling complained of, and the question raised by counsel for the defendant is whether the objection was sufficiently specific. The record shows the examination of this witness on the question of character to have been as follows:
Q. Are you acquainted with the defendant?
A. I am.
Q. How long have you known him?
A. About nine years.
Q. Are you acquainted with his general reputation for honesty in the neighborhood in which he resides?
Plaintiff objects as before. Overruled and plaintiff excepts.
A. Yes, sir.
Q. Is that good or bad?
A. It is good.
To what counsel referred to by the objection "as before" there is no means of knowing; it is a matter of mere conjecture. The reference certainly could not have been made to an objection to anything that had occurred in the previous examination of this witness, for none had been made. If it were to an objection to something asked of another, the trouble is that the previous objections are so numerous and various that no one can possibly tell which one the objector had in view. But in this matter, counsel for plaintiff are at fault in still another particular. Even if the objection were specific enough, the inquiry objected to being merely preliminary, with the view of ascertaining whether the witness were competent to answer as to the defendant's character, and the next and vital question, as to whether his reputation for honesty were "good or bad" having been put and answered without objection, the error would have been without prejudice and not a ground for a new trial. It was of no use to object to this preliminary question, if the succeeding and principal inquiry were to pass unquestioned. For these reasons, if the only error complained of were the admission of testimony as to the defendant's reputation for honesty, although such testimony was wholly immaterial to the issues being tried, the judgment would not be disturbed.
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