Dunn v. Dunnaker

Decision Date31 October 1885
Citation87 Mo. 597
PartiesDUNN, Appellant, v. DUNNAKER.
CourtMissouri Supreme Court

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.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 from other reasons, that when he called him as a witness at the trial, the witness would swear for him and not against him. Craig v. Grant, 6 Mich. 453; Campbell v. State, 23 Ala. 77; Com. v. Starkweather, 10 Cush. 60; Stearns v. Bank, 53 Pa. 493; People v. Safford, 5 Denio, 112; Coulton v. Ex. Co., 56 N. Y. 589 ( b) The testimony must surprise him, not from the fact that the witness swears he knows nothing as to the matter in dispute, but because the testimony destroys the case of the party calling him. People v. Jacobs, 49 Cal. 384. And ( c) the party calling him must have been guilty of no laches or negligence in the matter. Whart. on Evid., sec. 549. (2) The instructions were given on all the issues, and this was sufficient. Atley v. Tolfill, 77 Mo. 309; Porter v. Harrison, 52 Mo. 527.

HENRY, C. J.

This is a suit against defendant for damages for alleged malpractice, in the treatment by him, as a physician and surgeon, of plaintiff's arm which had been injured by an accident. The answer was a general denial. A trial resulted in a judgment in favor of defendant, from which this appeal is prosecuted.

In order to prove the case alleged by him, plaintiff read as evidence the deposition of Dr. D. P. Bigger, and, on defendant's objection, the court excluded a portion of the deposition, in which plaintiff attempted to show that the witness, Dr. Bigger, had made statements out of court contradictory of his testimony. The court did not commit error in excluding that testimony. A party introducing a witness, and thereby vouching his veracity, cannot impeach his testimony, either by general evidence showing his bad character for truth, or by evidence of statements made by him out of court, contradictory of his testimony at the trial. 1 Greenleaf's Evid., sec. 442. Proof of such contradictory statements could not be allowed as evidence of their truth, and could, therefore, be offered or received for no other purpose than to destroy the credit of the witness. Authorities to the contrary may be found, but we are of the opinion that, unless the party is entrapped into offering as a witness one who testifies contrary to what he, or others upon whom the party had a right to rely, assured him his testimony would be, the evidence of contradictory statements made by him is not admissible. 1 Greenleaf's Evid., sec. 444. No such element of surprise or imposition exists in this case. The testimony was contained in a deposition taken by plaintiff, and had been for...

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