Kelly v. American Central Insurnace Co.
| Decision Date | 02 July 1915 |
| Citation | 178 S.W. 282,192 Mo.App. 20 |
| Parties | GEORGE A. KELLY, Respondent, v. AMERICAN CENTRAL INSURANCE COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Rhodes E. Cave Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Fauntleroy Cullen & Hay for appellant.
Jeptha D. Howe and Alphonso Howe for respondent.
This is a suit on a policy of fire insurance. Plaintiff recovered and defendant prosecutes the appeal.
Plaintiff conducted a saloon and grocery business at 4342 Lee avenue, St. Louis, and the policy sued on covers his stock of merchandise, consisting of wines, liquors, groceries and fixtures in the building therein described. The property so insured was destroyed by fire on June 5, 1911, and the company declined to pay the loss, for the reason, it is asserted, the assured caused the property to be burned.
In its answer, defendant charges plaintiff with arson--that is to say, that he instigated the burning of the property and employed one John H. Hessemann to communicate fire to it. A further defense set forth in the answer charges plaintiff with false swearing touching the extent of the loss under the policy. In endeavoring to maintain these two defenses set forth in the answer, defendant introduced much evidence tending to support them, and all of this, of course, reflected upon plaintiff's character.
In rebuttal, plaintiff introduced several character witnesses, in order to sustain his general reputation, and defendant objected to their giving such testimony. The court overruled the objection and permitted the witnesses to testify that plaintiff enjoyed a good reputation in the community for truth and veracity and also fair dealing. Defendant argues the court erred in this, and, indeed, we entertain that view. It is true defendant's objection to this testimony was general in character, but it will suffice. The testimony thus offered was not competent for any purpose, and such being true, a general objection, with exception duly saved, is sufficient to preserve the matter for review, on appeal. [See State v. Meyers, 99 Mo. 107, 12 S.W. 516; Beard v. Am. Car Co., 63 Mo.App. 382.]
In civil actions such as this, the character of neither party is in issue, unless assailed through some form of impeachment by his adversary. It is said 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. 689.] If, however, in the trial of a civil case, where the character of a party is not in issue by the nature of the proceedings, the adverse party raises the question in respect of it, by assailing the character of his adversary through some recognized form of impeachment, it then becomes competent for such party so attacked to bring forward character witnesses to sustain his good repute. [See State v. Speritus, 191 Mo. 24, 34, 35, 36, 90 S.W. 459; Gourley v. Callahan, 190 Mo.App. 666, 176 S.W. 239.]
But, in cases, such as this one, where the issue made and tried renders essential the giving of evidence tending to reflect upon the character of the adverse party, such evidence and its effect are not regarded as taking on the form of impeachment, for, indeed, it is not introduced to that end, but rather relates solely to the issue on trial. [See Alkire Grocer Co. v. Tagart, 78 Mo.App. 166.] In this view, it is said, in a suit on an insurance policy, where the defense involves the charge of arson against the insured, that he is not permitted thereby to offer evidence of his good reputation in rebuttal. [See Stone v. Hawkeye Ins. Co., 68 Iowa 737, 56 Am. Rep. 870, 28 N.W. 47.] The principle is recognized and applied, too, by our own Supreme Court in Dudley v. McCluer, 65 Mo. 241, 27 Am. Rep. 273. In that case, though the defendant was charged with fraudulent representations, the court declared he was not permitted to introduce evidence of good reputation. It is clear that, though the plaintiff is charged with causing the property insured to be burned, in order to collect the insurance thereon, and likewise with false swearing in complying with the terms of the policy, to the end of revealing the extent of his loss, such charges do not constitute an impeachment, so as to authorize him to introduce character witnesses, tending to prove his general reputation to be good. The court erred in receiving this evidence. If plaintiff had been impeached through some of the recognized forms of impeachment apart entirely from the issue on trial, it would, no doubt, be otherwise.
In endeavoring to maintain its defense, defendant introduced one John H. Hessemann, who testified that, a few days before the loss occurred, plaintiff employed him to burn the property insured. Hessemann says that plaintiff agreed to pay him $ 100 for so doing and if he made a good job of it to pay him $ 200. In consideration of this, according to the evidence of Hessemann, he set fire to the stock...
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