Dunn v. Dunnaker

• Court: United States State Supreme Court of Missouri
• Writing for the Court: HENRY
• Citation: 87 Mo. 597
• Decision Date: 31 October 1885
• Parties: DUNN, Appellant, v. DUNNAKER.

87 Mo. 597

DUNN, Appellant,
v.
DUNNAKER.

Supreme Court of Missouri.

October Term, 1885.

[87 Mo. 598]

Appeal from Jackson Circuit Court.--HON. F. M. BLACK, Judge.

AFFIRMED.

Alderson & Young for appellant.

(1) The rejection by the trial court of that portion of the deposition of Dr. D. P. Bigger, quoted under the assignment of errors, was in itself such error as entitles the appellant to a reversal of this cause. In support of this proposition we cite an article in 16 Central Law Journal, 325, and cases cited, entitled “Right of a Party When His Own Witness has Made Previous Contradictory Statements.” (2) The refusal by the trial court of plaintiff's instructions, quoted under assignment of errors, was also error sufficient for a reversal of this cause. Anthony v. Stinson, 4 Kas. 212; Patterson v. Boston, 20 Pick. 159; Ottawa Gas Co. v. Graham, 28 Ill. 73; Head v. Hargrave, 14 Cent. Law Jour. 388; Murdock v. Summer, 22 Seel. 158; Estate of Dorband, 19 Cent. Law Jour. 379; Rose v. Spies, 44 Mo. 20; Brehm v. Great Western R. R., 34 Barb. 256; Rogers on Expert Testimony, sec. 37. (3) If plaintiff's instruction is a correct declaration of the law, then the court erred in refusing it. That all the instructions given in the case were full and fair does not suffice. It is a judicious and well-settled rule that a litigant is entitled and has a right to have the jury instructed upon every point of law pertinent to the issue, clearly and pointedly. Sackett's Ins. to Juries, sec. 4; Owen v. Owen, 22 Ia. 270; Lapish v. Wells, 6 Me. 175; Barnard v. Burton, 5 Vt. 97; Jared v. Goodlittle, 1 Blackf. 29; Douglass v.

[87 Mo. 599]

McAlister, 3 Cr. 298; Gilkey v. Peeler, 22 Tex. 663; Ridens v. Ridens, 29 Mo. 470; Smith v. Johnson, 13 Ind. 224; Little v. Boyer, 33 Ohio St. 506; Moody v. Davis, 10 Ga. 403; Livingston v. Maryland Ins. Co., 7 Cr. 506, 544; Thompson on Charging the Jury, sec. 78.

C. O. Tichenor for respondent.

(1) By the common law, though a party could contradict his witness, he could not impeach him either by general evidence or by proof of prior contradictory statements. By statute of England, if the judge permit, such statements may be shown. Whart. on Evid. (2 Ed.) sec. 549, note 2. So far as we know, this court has not changed the rule laid down in Brown v. Wood, 19 Mo. 475, to this effect: If a party calls a witness to prove a fact, “and that witness disappoints him and fails to prove it, the party is not precluded from proving the fact by another witness, although in so doing he may show the first witness guilty of perjury.” See, also, Chandler v. Fleeman, 50 Mo. 239. Even in the states where the extreme doctrine obtains, many things must exist before advantage can be taken of it. Even where there is a statute giving the power to so contradict, the courts hold, “it must be kept strictly within the bounds of the statute.” Ryerson v. Abington, 102 Mass. The rule is born of necessity, to save one from being ambushed by a witness upon whom he was justified in relying. Hence, before the rule can be invoked, it must always appear ( a) that he was surprised by the testimony, i. e., that he believed, either from previous statements or...