Paris v. Waddell

• Decision Date: 06 December 1909
• Parties: PARIS v. WADDELL.
• Court: Missouri Court of Appeals

123 S.W. 79

PARIS v. WADDELL.

Springfield Court of Appeals. Missouri.

December 6, 1909.

1. EVIDENCE (§ 213)—OFFER OF COMPROMISE.

Where plaintiff went to defendant to collect a bill for livery hire and damages, when defendant stated that he would pay $5 for the use of the rig, but would not pay any damages, and no suit was pending at the time, nor any negotiations for a compromise, defendant's statement was not inadmissible as an offer of compromise.

2. WITNESSES (§ 387)—CROSS-EXAMINATION.

Where, in an action for livery hire and damages, a witness had testified that defendant did not owe the bill, he was properly required to answer on cross-examination whether on a certain occasion he had not stated that defendant would not pay anything that he owed witness, and beat plaintiff out of an honest livery bill, referring to the account sued on.

3. WITNESSES (§ 391)—IMPEACHMENT—DECLARATIONS.

Where a witness on cross-examination denied making a statement before certain persons named that defendant beat plaintiff out of an honest livery bill, referring to the cause of action sued on, proof that witness did make such statement for the purpose of affecting his credibility was not objectionable because the declaration was not made in defendant's presence.

4. APPEAL AND ERROR (§ 203)—OBJECTIONS NOT MADE AT TRIAL.

An objection that an impeaching question did not fix any time or place could not be made for the first time on appeal.

5. APPEAL AND ERROR (§ 237)—RULINGS ON EVIDENCE—OBJECTION TO STRIKE—NECESSITY—REVIEW.

An objection that evidence offered to contradict a witness was not effective for that purpose could not be reviewed on appeal, in the absence of a motion to strike it out for that reason at the trial.

Appeal from Circuit Court, Lawrence County; F. C. Johnson, Judge.

Action by George Paris against Thomas S. Waddell. Judgment for plaintiff, and defendant appeals. Affirmed.

James A. Potter, for appellant. Charles L. Henson, for respondent.

GRAY, J.

On the 22d day of August, 1907, respondent brought suit against the defendant before a justice of the peace in Lawrence county, claiming the defendant owed him "the sum of $15 for team hire and damage to team and buggy." The cause was tried before a justice of the peace, and appealed to the circuit court and tried before a jury. The respondent recovered a verdict for $7, judgment entered thereon, and from which the appellant appealed.

The testimony in behalf of plaintiff tended to prove that the appellant, who was engaged in operating a mine, authorized Ben Wheeler and Tom Beasley, two of his employés to go to the livery stable of respondent, and hire a team to be used by said Wheeler and Beasley in an effort to find men to work in the appellant's mine; that the said employés of appellant went to the stable, asked for the team in behalf of appellant, and the same was furnished to them; that they kept the team and damaged the buggy until the respondent claimed $7 for the use of the team and $8 damages for the rig. The appellant denied that he authorized Wheeler or Beasley to hire the team on his account, and this was the issue in the case.

It is claimed the court committed error in permitting the respondent to testify that, when he went to see the appellant about the matter, he said he would pay $5 for the use of the rig, but he would not pay any damages. Appellant's claim of error is made upon the theory that this was an offer of compromise. We do not so regard it. No suit was pending at the time, and the respondent simply went to him to collect his bill for the use of the team and damages. The evidence fails to show any negotiations for a compromise were then under way....