Mohead v. Gilmer Grocery Co., Inc.
| Decision Date | 25 March 1929 |
| Docket Number | 27804 |
| Citation | 121 So. 143,153 Miss. 467 |
| Court | Mississippi Supreme Court |
| Parties | MOHEAD v. GILMER GROCERY CO., INC. [*] |
1. WITNESSES. Permitting cross-examination of plaintiff regarding character of defendant's deceased president which had not been attacked, held error.
Permitting cross-examination of plaintiff regarding character of defendant's deceased president, who had written letter denying liability to plaintiff, held error, where no attack had been made upon deceased's character.
2 TRIAL. Instruction that, where defendant's agent making oral contract is dead, defendant may put before jury every circumstance showing contract never existed, held erroneous because calculated to make jury give undue weight to deceased's letter denying liability.
In action by employee for bonus claimed under oral contract instruction that, where defendant is precluded from testimony of its agent making oral contract by his death, it is defendant's privilege to put before jury every fact and circumstance having tendency to show contract sued on never existed, held calculated to prejudice jury to decide that unusual importance was to be attached to dead man's letter denying liability to plaintiff, and was erroneous as tending to trench upon weight of evidence.
3 TRIAL. Weight of evidence is for jury.
Weight of evidence is exclusively for the jury.
APPEAL from circuit court of Sunflower county, HON. S. F. DAVIS, Judge.
Action by H. P. Mohead against the Gilmer Grocery Company, Incorporated. From the judgment, plaintiff appeals. Reversed and remanded.
Case reversed and remanded.
B. B. Allen, for appellant.
Dever Gilmer was president of the appellee corporation, and was dead at the time of the trial in the court below, and he appeared as a witness in the form of a letter he had written prior to his death. His reputation for paying his debts was not an issue, nor was his reputation for truth and veracity attacked in any manner by the appellant, this being a suit against a corporation in whose employ Dever Gilmer was. And it was highly prejudicial to permit the bolstering up of his character in any manner; first because the suit was not against him, and second because at most he was only a witness, and as such unassailed. 40 Cyc. 2784; Hayes v. Wabash R. R. Co., 163 Mich. 174, 128 N.W. 217, 31 L. R. A. (N. S.) 229; Hughes on Evidence, page 43; Martino v. State, 98 Miss. 355, 53 So. 777; Clark v. State, 9 So. 820; Brewer v. Mullins, 97 Miss. 353, 52 So. 257. In the case at bar our witness, the plaintiff himself, was forced to state, over the objection of his attorney, that Dever Gilmer was always found carrying out his promises, and that he, the said Dever Gilmer, "was a mighty good man." The facts in the Brewer case, supra, were not half so objectionable on this point, as were the facts in the case at bar.' In neither case had the reputation or character of the witness (Gilmer) been assailed directly or indirectly.
Instruction No. 3 for defendant tells the jury that where the defendant "is precluded from the testimony of the agent of the defendant making the oral contract by his death, it is the right and privilege of the defendant to put before the jury every fact and circumstance which has a tendency to show that the contract sued on never existed." This instruction is bad, because there are no facts or circumstances surrounding the making of this contract sufficient to overcome or negative positive evidence. It gives undue attention to the death of a witness they hoped to have used, but who died in the meantime.
Forrest G. Cooper, for appellee.
When the plaintiff testified that Dever Gilmer had broken his word and promise to him and the credibility of the plaintiff as a witness was under review in cross-examination, he was asked the simple question, as to whether or not Dever Gilmer had kept his promises to him to test his credibility. On cross-examination this was proper. The purpose of the question to the plaintiff was essentially to show the bias of the witness as plaintiff. The cross-examiner merely took a chance in asking a chance question to test the credibility and bias of the witness. With the wide latitude allowed in those classes of cases where the death of one alleged contracting party prevents his testifying and at the same time with the wide latitude allowed in the cross-examination of witnesses and particularly of the cross-examination of a party litigant, the wise rule laid down in 5 Jones on Evidence, sec. 832, is peculiarly applicable to the cross-examination of Mohead. We quote Brewer v. Mullins, 97 Miss. 353, 52 So. 257, was a replevin suit in which the identity and ownership of a mule was in question. A third party was a witness for one side and the attorney for the other side asked this witness if Mullins, the defendant was not a truthful man. Judge ANDERSON, in rendering the OPINION held that the testimony in this case was so evenly balanced that the question and answer had influential weight with the jury. This is not the case here on appeal. In our case Mohead himself was on the witness stand. Mohead swore that he had made an agreement with a man who was dead and under the wide latitude allowed in that kind of case where the testimony of Mr. Gilmer was impossible and where the...
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