Fuller v. Robinson

• Court: Missouri Supreme Court
• Writing for the Court: GANTT, P. J.
• Citation: Fuller v. Robinson, 230 Mo. 22, 130 S.W. 343 (Mo. 1910)
• Decision Date: 19 July 1910
• Parties: A. R. FULLER v. BUDD M. ROBINSON, Appellant

130 S.W. 343

230 Mo. 22

A. R. FULLER v. BUDD M. ROBINSON, Appellant

Supreme Court of Missouri, Second Division

July 19, 1910

Appeal from Barton Circuit Court. -- Hon. James B. Johnson, Judge.

Affirmed.

A. E Spencer for appellant.

(1) The court erred in permitting plaintiff, over the objection of the defendant, to testify to his conversation with his wife in the absence of the defendant. As to defendant, such conversation was clearly hearsay, and the evidence was highly prejudicial in character. Leavell v. Leavell, 122 Mo.App. 654; Westlake v. Westlake, 34 Ohio St. 621; Buchanan v. Foster, 48 N.Y.S. 732; Rice v Rice, 62 N.W. 833. (2) Plaintiff was also improperly permitted to testify that when his wife left him, he purchased her a round-trip ticket, at her request. See authorities cited under point one. (3) Error again occurred in permitting a witness for plaintiff to testify to the actions of defendant's wife in watching both defendant and the house of plaintiff. The plaintiff saw and confessed the error in this, but the court adhered to his original ruling, and let such evidence be considered by the jury. No withdrawal of the evidence could have cured the plain error in its admission. And withdrawal was not attempted until two days later. Meyer v. Lewis, 43 Mo.App. 420; Mueller v. Weitz, 56 Mo.App. 40; Wojtylak v Coal Co., 188 Mo. 285; Stephens v. Railroad, 96 Mo. 214; Naughton v. Gaslight Co., 123 Mo.App. 204. (4) The same form of error occurred in permitting evidence that, at a certain time, the defendant's wife ceased visiting at plaintiff's house. This was clearly incompetent as against defendant, and could only operate to prejudice him before the jury. The conduct of defendant's wife was no more proper than her declarations. (5) The damages in this case were excessive, and manifestly the result of the passion and prejudice of the jury. The verdict was for $ 15,000, reduced by the court to $ 10,000. Under the pleadings, compensatory damages alone could be awarded, and punitive damages were excluded. The evidence does not warrant a judgment for $ 10,000. R. S. 1899, secs. 594 and 595; Hartpence v. Rogers, 143 Mo. 623; Nichols v. Nichols, 147 Mo. 387. (6) The court erred in refusing to instruct the jury, at request of defendant, that if plaintiff encouraged, consented to, or connived at, the association of his wife with defendant, and because of such association, and without the defendant so intending, the wife lost her affection for the plaintiff, the verdict should be for defendant. And also that if plaintiff encouraged his wife in attentions to defendant, or connived thereat, and by reason of such attentions to defendant she became estranged from plaintiff, without any wrongful influence on the part of defendant, the verdict should be for defendant. Childs v. Muckler, 105 Ia. 279; Tasker v. Stanley, 153 Mass. 148; Modisett v. McPike, 74 Mo. 636; Hartpence v. Rogers, 143 Mo. 623; 21 Cyc. 1621, 1619. (7) The closing argument for plaintiff was bitter and full of error. Counsel appealed to the passions of the jury, and went outside the evidence. He accused defendant of deserting his wife and besought the jury to punish the defendant. The action of the court did not cure this. The situation called for prompt and vigorous action by the court, and it was not forthcoming. Beck v. Railroad, 129 Mo.App. 7; Bishop v. Hunt, 24 Mo.App. 373; Fathman v. Tumilty, 34 Mo.App. 236; Nichols v. Metzger, 43 Mo.App. 607. (8) The court erred in permitting plaintiff to examine photographs of certain signatures, and from such examination to testify to the handwriting. Taylor's Will, 10 Abb. Pr. (N. S.) 318; Hynes v. McDermott, 82 N.Y. 51; Maclean v. Scripps, 52 Mich. 214; Geer v. Company, 134 Mo. 85; Houston v. Blythe, 60 Tex. 506; Tome v. Railroad, 39 Md. 36. (9) Defendant's witness, Mrs. Brannon, testified to quarrels between plaintiff and his wife. Such evidence was proper, but the court struck same out on motion of the plaintiff. Fratini v. Caslani, 66 Vt. 273.

Thurman & Timmonds, Cole, Burnett & Moore, McAntire & Scott and P. D. Decker for respondent.

(1) Appellant contends that the court erred in admitting a conversation between plaintiff's wife and himself. This conversation was had in the presence of Mrs. Brannon. It occurred the morning following defendant's midnight buggy ride with plaintiff's wife. It contained no reference to any words, acts or conduct of defendant. It only indicated the state of the wife's feelings for plaintiff and defendant, and her motive and reason for going away. This is not hearsay but original evidence. It was admissible under the exception to the hearsay rule for the purpose of showing the feelings or mental condition of plaintiff's wife and her reason and motive for leaving. State v. Wooley, 215 Mo. 686; Reed v. Reed, 101 Mo.App. 176; Mead v. Arnold, 131 Mo.App. 223; Folks v. Burnett, 47 Mo.App. 566; Lyon v. Prouty, 154 Mass. 490; Ash v. Prunier, 105 F. 724; Perry v. Lovejoy, 49 Mich. 529; McKenzie v. Lautenschlager, 71 N.W. 489; Edgell v. Francis, 33 N.W. 501; Preston v. Bowers, 13 Ohio St. 1; Rose v. Mitchell, 43 A. (R. I.) 68; Jacobs v. Whitcomb, 64 Mass. 257; Lockwood v. Lockwood, 70 N.W. 789; Rosener v. Darrah, 70 P. 597; Puth v. Zinbleman, 68 N.W. 897; Hardwick v. Hardwick, 106 N.W. 639; Sexton v. Sexton, 105 N.W. 315; Williams v. Williams, 37 P. 616; Beach v. Brown, 55 P. 47; Tucker v. Tucker, 32 L. R. A. (Miss.) 623; Rudd v. Rounds, 64 Vt. 432; Wigmore, sec. 1730. (2) This testimony simply showed that at the time his wife left, she requested a round-trip ticket and that in pursuance of that request plaintiff purchased the same for her. The expression of the request was explanatory of the act done in pursuance of the request. Moreover, the intention or motive of the wife in going, what was in her mind at that time, could be shown by her declarations preceding the doing of the thing. Her request for a round-trip ticket was a verbal act evidencing her intention to return. The court did not err in admitting this evidence. Mead v. Arnold, 131 Mo.App. 223; Folks v. Burnett, 47 Mo.App. 566; Perry v. Lovejoy, 14 N.W. 486; McKenzie v. Lautenschlager, 71 N.W. 489; Glass v. Bennett, 14 S.W. 1085; Nevins v. Nevins, 75 P. 492 (Kas.) ; Bailey v. Bailey, 94 Ia. 598. (3) The court did not err in permitting a witness for plaintiff to testify to the actions of defendant's wife when she visited plaintiff's home and found her husband, the defendant, there with plaintiff's wife. This evidence was material and competent to show "whether the conduct of defendant was actuated by good or selfish and improper motives," and as showing under what circumstances and conditions he was associating with and visiting plaintiff's wife. Conceding that the admission of this evidence was erroneous, the withdrawal of the evidence and an instruction to the jury to disregard it would have cured the error of its admission. Modisette v. McPike, 74 Mo. 648; Link v. Vorhauer, 104 Mo.App. 368; Anderson v. Railroad, 161 Mo. 419; Harrison v. K. C. Co., 195 Mo. 634; Stavinaw v. Ins. Co., 43 Mo.App. 517; McGinnis v. Loring, 126 Mo. 405; Frick v. Kansas City, 117 Mo.App. 488; Scharff v. Construction Co., 115 Mo.App. 170; Nevins v. Nevins, 75 P. 492 (Kas.) ; Childs v. Muckler, 75 N.W. 100. (4) The fact that defendant's wife had frequently visited plaintiff's home was a circumstance explaining defendant's visits, and the fact that at a certain time defendant's wife ceased to visit plaintiff's home was a circumstance for the jury to consider in connection with the fact that defendant continued his visits to plaintiff's home, although plaintiff and his wife also ceased their visits to defendant's home. See cases under 3. (5) The courts have repeatedly held that the amount of damages in such cases as this is considered a question peculiarly within the province of the jury, and that in such cases there is no scale whereby the damages can be graduated with certainty. To the jury as a sacred tribunal has been entrusted the duty and right to weigh the sense of grief, humiliation and wrong of plaintiff and the injury to his feelings, character and condition. Hartpence v. Rogers, 143 Mo. 638; Love v. Love, 98 Mo.App. 572; Minter v. Bradstreet Co., 174 Mo. 504; Woodson v. Scott, 20 Mo. 272; Sutherland on Damages (3 Ed.), sec. 1285 and note 4; Cooley on Torts, sec. 224; Speck v. Gray, 45 P. 143; Leavell v. Leavell, 114 Mo.App. 33. (6) The court did not err in permitting plaintiff to identify certain photographs of signatures as the signatures of defendant and of plaintiff's wife. The plaintiff produced the best evidence procurable under the circumstances. If the admission of this testimony was error it was harmless. The identification of these photographs of signatures only went to prove that Alice M. Fuller and Budd M. Robinson were registered at certain hotels in the city of Chicago, which fact was expressly admitted by defendant in two depositions, and hence the proof of the signatures, if error, could have done no harm. Wright v. Railroad, 118 Mo.App. 397; Briggs v. Henderson, 49 Mo. 534. Whether a photograph of handwriting may be used, depends chiefly upon the principle requiring production of the original of a writing. If the original is not obtainable, then a photographic copy may be used. 1 Wigmore on Evidence (1 Ed.), sec. 797; Howard v. Russel, 12 S.W. 527; In re McClellan's Estate, 107 N.W. (S. D.) 685. Where an instrument in writing is neither within the jurisdiction of the court nor within the control of either of the parties to the suit, secondary evidence of its contents is admissible. Lumber Co. v. Herriman Co., 39 Mo.App. 220; Wright v. Railroad, 118 Mo.App. 397.

GANTT, P. J. Burgess and Fox, JJ., concur.

OPINION

GANTT, P. J.

This is an action...