Niemeyer v. McCarty

• Decision Date: 22 November 1943
• Docket Number: 27902.
• Citation: 51 N.E.2d 365,221 Ind. 688
• Parties: NIEMEYER et al. v. McCARTY et al.
• Court: Indiana Supreme Court

51 N.E.2d 365

221 Ind. 688

NIEMEYER et al. v. McCARTY et al.

No. 27902.

Supreme Court of Indiana

November 22, 1943

Appeal from Jasper Circuit Court; Moses Leopold, Judge.

Alex Pendleton, John W. Lyddick, and Harry Long, all of Gary, for appellants.

E Miles Norton, of Crown Point, and Abraham Halleck, of Renssalear, for appellees.

FANSLER Chief Justice.

This is an action by Ernest B. McCarty against the appellants and the appellee Harry Boesel for damages for assault and battery. There was a trial by jury, and a verdict and judgment against the defendants for $3,000. The appellee Harry Boesel did not join in the appeal.

Error is assigned upon the overruling of appellants' motion for a new trial.

The appellants contend that the evidence fails to show that the defendants acted jointly or that there was concerted action. This contention seems to be based upon the view that, before there could be joint liability, the defendants 'must have done an act which was planned arranged, adjusted, agreed upon and settled between themselves prior to the commission of the tort.' We cannot agree with this view of the law. See Little v. Tingle, 1866, 26 Ind. 168.

The court sustained an objection to the introduction in evidence of certain records of a contempt proceeding in which it is said that the plaintiff was convicted of contempt of court for perjury. This evidence was offered for the purpose of affecting the credibility of the plaintiff as a witness. It is well settled that ordinarily a witness cannot be impeached by proof of particular extraneous acts of misconduct. Section 2-1725, Burns' 1933, § 312, Baldwin's 1934, Acts 1881 (Sp.Sess.), ch. 38, § 284, p. 240, provides: 'Any fact which might, heretofore, be shown to render a witness incompetent, may be hereafter shown to affect his credibility.' This has reference to § 79, p. 999, Rev.St.1843, which defined infamous crimes and rendered those convicted of such incompetent as witnesses. See Dotterer v. State, 1909, 172 Ind. 357, 88 N.E. 689, 30 L.R.A.,N.S., 846. Among the crimes defined was 'wilful and corrupt perjury.' In this state all crimes are statutory, and all who are accused of crime are entitled to a trial by jury, and there can be no conviction of crime except by a jury unless a jury is waived. Contempt of court is not a crime, although the same act may be a crime and may also be a contempt of court. It follows that the statute quoted above furnishes no basis for the admission of the record of the contempt proceedings even if it is a final judgment which is questioned. There was no error in excluding this record.

The appellants offered to prove that the plaintiff's reputation for peace and quietude was bad. The complaint alleges that the defendants attacked the plaintiff. The defendants filed an affirmative answer alleging that the plaintiff was the aggressor. The plaintiff testified that the defendants were the aggressors.

Professor Wigmore says:

'It is to-day generally said that (subject to specific exceptions, some of them doubtful) the character of a party in a civil cause is inadmissible; i. e. that it cannot be used, as used for or against a defendant in a criminal case, to indicate the likelihood that the act in issue was or was not done. This is laid down as a general rule, to which a specific exception, if any, must be clearly made out.

'This result, to be sure, was not always so clearly an accepted one. But it has long been a rule generally recognized,--subject, however, to exceptions which are being constantly enlarged, as they should be.

'The reasons for this exclusion differ wholly from the reasons forbidding the prosecution's use of the character of an accused person; the two rules have nothing in common. The reasons advanced for the present rule are of two chief sorts:

'(1) A party's character is usually of no probative value. Where the issue is whether a contract was made or broken, whether money was paid or property improved by mistake, whether goods were illegally converted or a libel published, there no moral quality in the act alleged, or at any rate any moral quality that may have been present is ignored by the law; and moral character can therefore throw no light on the probability of doing or not doing. In torts involving violence or actual fraud, such a moral quality may appear; but, apart from these exceptions, it is either nonexistent or immaterial.'

Wigmore on Evidence, 3rd Ed., Vol. 1, § 64, p. 472 et seq.

The author points out that this together with the policy of avoiding confusion of the issues has been relied upon to justify the general policy of excluding an investigation of the character of the parties in a civil cause. The author says: 'It may, however, be maintained that the reasons of policy apply in ordinary civil cases only; and that where a moral intent is marked and prominent in the nature of the issue, the defendant's good moral character should be received, as in criminal cases. This view has in more modern opinions gained ground, and is worth recognizing.' It may be noted that the reasoning applies to bad character as well as good. The author cites Hein v. Holdridge, 1900, 78 Minn. 468, 472, 81 N.W. 522, 523, in which the court said: 'There would seem to be no logical reason why the same rule should not apply to civil actions in which the defendant is charged with a crime,' and McClure v. State Banking Co., 1909, 6 Ga.App. 303, 304, 65 S.E. 33. In the later case the defendant was sued on a note which he claimed was a forgery. He offered to prove that the general reputation of the payee was bad and that he bore the reputation of having engaged in the business of committing forgeries. The court said: 'Frequently this kind of evidence has a distinct relevancy and a high degree of probative value, because it tends to make the question involved in the issue more or less probable in favor of one side of the case or the other.' In Cain et al. v. Skillin, 1929, 219 Ala. 228, 232, 121 So. 521, 525, 64 A.L.R. 1022, 1027, 1028, a civil action for damages for assault and battery, in which the plaintiff contended that the defendant was the aggressor, and the defendant contended that the plaintiff was the aggressor, it was held error to exclude evidence of the bad reputation of the plaintiff. The court held that such evidence was competent 'in connection with self-defense and after overt act shown, where it is doubtful which party commenced the fray, and to show the quo animo of the assailant.' The court said: 'We can see no difference in principle on this subject, whether it is a criminal or a civil case.'

In the early case of Byrket v. Monohon, 1844, 7 Blackf. 83, 85, 41 Am.Dec. 212, an action for slander for charging the plaintiff with perjury, there was an answer that the charge was true. The court said: 'The defendant undertook to prove that the plaintiff had committed perjury; and the jury, in making up their minds on the subject, had surely a right to take into consideration, if the defense was not clearly proved, the general good character of the plaintiff for truth. Indeed, it would seem that such evidence ought never to be withdrawn from the jury, though it will often be rendered of no avail by the nature of the defendant's evidence. If the plaintiff were indicted for the offense, it would be proper for the jury, in making up their verdict, to take into consideration his general good character for truth; * * * and the law must be the same in the case before us.' This case has often been cited with approval by this court, and never has doubt been expressed as to the soundness of the conclusion reached. Among the cases in which it has been cited with approval is Gebhart v. Burkett, 1877, 57 Ind. 378, 379, 380, 381, 382, 26 Am.Rep. 61, 62, 63. The action was for 'wilfully, unlawfully and maliciously' burning a barn. Greenleaf is quoted as follows: "In civil cases, such evidence is not admitted, unless the nature of the action involves the general character of the party, or goes directly to affect it. * * * And in all cases, where evidence is admitted touching the general character of the party, it ought manifestly to have reference to the nature of the charge against him." This statement conforms to the reasoning of the modern cases in which character evidence is admitted. The defendant had offered to prove his general good character as part of his defense. The court said:

'Byrket v. Monohon, 7 Blackf. 83 [41 Am.Dec. 212], was a case of slander for charging the plaintiff with perjury; plea, justification. Here character is put directly in issue, and the corrupt intent is necessary to the defence. The same in Miles v. Vanhorn, 17 Ind. 245 [79 Am.Dec. 477].

'In the case of Haun v. Wilson, 28 Ind. 296, which was for slander founded on words charging the plaintiff with larceny, evidence of good character was held inadmissible, because there was no answer in justification putting character in issue. * * *'

Here is recognition that if in defense it is asserted that the plaintiff was guilty of a crime his character is in issue but the court concluded: 'In the case before us, it is apparent that the general character of appellant is not involved. Motive or intent constitutes no element in the wrong complained of. The injury is the same, whether committed with or without malice. True, the appellee charges the appellant with maliciously burning the barn and its contents, but it was not necessary to prove the malice. If he proved the burning to be unlawful, it was sufficient as to that part of the case. General good character is no defence to the particular act charged.' We are concerned with the principle announced, and not with the result reached. If the result is wrong, it is because of the misapplication of a...