Gourley v. Callahan

• Citation: 190 Mo. App. 666,176 S.W. 239
• Decision Date: 04 May 1915
• Docket Number: No. 14039.,14039.
• Parties: GOURLEY v. CALLAHAN.
• Court: Court of Appeal of Missouri (US)

176 S.W. 239

190 Mo. App. 666

GOURLEY v. CALLAHAN.

No. 14039.

St. Louis Court of Appeals, Missouri.

May 4, 1915.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

Action by Bertha Gourley, by William Gourley, her next Mend, against Patrick Callahan. From an order setting aside a verdict for defendant and awarding a new trial, defendant appeals. Reversed and remanded, with directions.

John J. O'Brien and McShane & Goodwin, all of St. Louis, for appellant. Claud D. Hall, of St. Louis, for respondent.

NORTONI, J.

Defendant prosecutes this appeal from an order of the court setting aside a verdict in his favor and awarding plaintiff a new trial. Plaintiff, a young girl about 17 years of age, prosecutes the suit through her father, as next friend, for damages alleged to have accrued to her on account of an assault by defendant. A trial was had before a jury, with the result that the finding and verdict were in favor of defendant. Thereupon plaintiff filed a motion for a new trial, and this motion the court sustained. It appears that during the cross-examination of defendant, while he was on the witness stand, plaintiff's counsel interrogated him with respect to alleged misconduct toward another young girl in the neighborhood, and thereafter defendant placed two witnesses—that is, character witnesses—on the stand, who testified to the effect that his general reputation was, in all respects, good. Because of the admission of this evidence on the part of defendant, the court subsequently set the verdict in favor of defendant aside on the fourth and fifth grounds assigned in plaintiff's motion for a new trial. The fourth and fifth specification of grounds in the motion for a new trial and on which the verdict was set aside are as follows:

"Fourth. The court erred in admitting improper testimony adduced by defendant.

"Fifth. The court erred in admitting improper testimony adduced by the defendant as to the character and reputation of the defendant."

From an inspection of the record, it is obvious that no other evidence adduced by defendant than that above referred to may, in any view, be regarded as improper. It is therefore clear that the new trial was granted to plaintiff, and the verdict in favor of defendant set aside, because the court entertained the view that it was incompetent for defendant to introduce character evidence; that is, evidence tending to support his general reputation as a good citizen. No one can doubt that in civil actions the character of neither party, unless assailed, can be inquired into if not put in issue in the nature of the proceedings. See Gutzwiller v. Lackman, 23 Mo. 168. It is said, too, that the character of a party to a civil suit is only put in issue in the class of cases such as libel, slander, malicious prosecution, etc., in which evidence of good character is to be considered in assessing damages. See Black v. Epstein, 221 Mo. 286, 304, 305, 120 S. W. 754; Vawter v. Hultz, 112 Mo. 633, 639, 20 S. W. 6S9. If, however, in the trial of a civil suit, where the character of a party is not in question by the nature of the proceedings, I he adverse party raises the issue in respect of it by assaulting the character of his adversary, it then becomes competent for such party so attacked to bring forward character witnesses to sustain his good repute. See Ross v. Grand Pants Co., 170 Mo. App. 291, 156 S. W. 92; State v. Speritus, 191 Mo. 24, 34, 35, 36, 90 S. W. 459.

It was in this view that defendant introduced the evidence of two witnesses tending to show his good character, in that he enjoyed a good reputation in the neighborhood where he resided, for plaintiff seemed to assail him as by the imputation of wrongdoing in the cross-examination of defendant when he was on the stand. The questions propounded to defendant during his cross-examination by plaintiff and his answers...