St. Louis, I. M. & S. Ry. Co. v. Stroud

• Decision Date: 29 April 1899
• Citation: 56 S.W. 870
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. STROUD.
• Court: Arkansas Supreme Court

56 S.W. 870

ST. LOUIS, I. M. & S. RY. CO. v. STROUD.

Supreme Court of Arkansas.

April 29, 1899.

Appeal from circuit court, Saline county; Alexander M. Duffie, Judge.

Action by Frank Stroud against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

The complaint charged that on the night of January 17, 1895, the plaintiff went to the depot of defendant in North Little Rock for the purpose of taking a train to Hot Springs, to visit his sick wife and child; that he entered the depot waiting room provided for passengers, to wait for the train. While there one Pat Gallagher, in the employ of the defendant as watchman, "entered said depot, and, with a large club and pistol, recklessly, maliciously, forcibly, and wrongfully restrained and falsely imprisoned, and with violence and threats, and rough and brutal language, and with pistol drawn, assaulted and drove plaintiff out of the depot and off the platform and away from the depot, and prevented plaintiff from taking said train." It further charged that the watchman, Pat Gallagher, was an incompetent, unreliable, and vicious person, unfit to fill the position intrusted to him by the defendant, all of which was well known to defendant, and had been so known to it for a long time prior thereto. It further charged that, by reason of all of the above things, plaintiff had suffered great damage and humiliation to himself, and great suffering in anxiety on account of the condition of his wife and child, and great injury and suffering on account of said wrongful restraint, to his damage in the sum of $5,000. The answer specifically denied each and every allegation of the complaint, and charged that, if plaintiff had suffered as alleged, it was the result of his own unlawful and improper acts in the premises, and from no fault of defendant. There was a verdict for plaintiff of $4,000. Remittitur of $3,000, and judgment for $1,000. Defendant appealed.

Dodge & Johnson, for appellant. Hill & Auten, for appellee.

HUGHES, J. (after stating the facts).

There was much evidence introduced on the trial of this cause which it is unnecessary to state or discuss here. The plaintiff testified that on the evening of January 16, 1895, he received a letter from his wife, in Hot Springs, calling on him to come there at once. The letter was then offered in evidence, and read to the jury over the defendant's objection, to which it excepted. That letter was as follows: "Hot Springs, Ark., Jan'y 16th, 1895. Dear Husband: Please come at once, as Mary is very sick, and I am, in one respect, very dangerous. Been sick for over a week, and you know what bad spells I have with my heart, and other troubles. So do come. The doctor says I am liable to die at any time. My cook is gone, and I am here all alone. I thought, in spite of all I could do last night, Mary would have convulsions. Now, I need you. Let work and everything go. If you never get work, come at once. Your true, loving wife until death. Etta Stroud." Mary, alluded to in the letter, is shown in evidence to have been the plaintiff's adopted daughter. So much of this letter as was necessary or tended to show that the plaintiff's purpose in going to the depot on the night of 16th was to take the train for Hot Springs was competent and relative evidence; but the reading of it in full to the jury was not necessary for that purpose, and it was calculated to incite the sympathies of the jurors and prejudice them against the defendant, and was therefore erroneous.

S. W. Williams was permitted, over the objection of the defendant, to testify as follows: "Q. How long have you known him [Pat Gallagher]? A. Over thirty years. I have known him ever since the war, — before, I think. Q. Do you remember the suit of Thomas Hackett against the St. Louis, Iron Mountain, reported in 58 Arkansas? A. I do. I was one of the attorneys for plaintiff. I was senior counsel for plaintiff. Q. Was the defendant in this case the Iron Mountain Railway Company, defendant in that case? A. Yes, sir; there is no other in the state of Arkansas. Q. What was that action brought for? A. That action was brought for the shooting of Hackett by this man Gallagher, while in the employ of the Iron Mountain Railway Company, near the foot of Rock street, at the freight depot of the said road. Q. Then that case was brought to recover damages for the conduct of Pat Gallagher? A. It was brought by plaintiff for personal injuries inflicted by Pat Gallagher as employé of the Iron Mountain Railway Company. Q. What was the result of the suit? A. We recovered for plaintiff for his injuries. The railway company appealed the case to the supreme court, where the judgment of the Pulaski circuit court was affirmed, and the defendant railway company paid the judgment to me, as Hackett's attorney; but, in order to hold recourse upon Gallagher, the company had me, as attorney in fact for Hackett, assign the judgment to it, and the railway company satisfied it in the form of a purchase, instead of payment of the judgment. The judgment was against both the railway company and Gallagher. Q. Do you remember, colonel, about when that shooting of Hackett took place? A. April 7, 1890." S. N. Davis was allowed, over defendant's objection, to give testimony about the shooting of Hackett by Pat Gallagher, and questions were asked various other witnesses about the same, which they were allowed to answer over the objection of the defendant, to all of which it excepted and urged in its motion for rehearing, which was overruled by the court, to which defendant excepted. The purpose of all this testimony was to show that Pat Gallagher was an incompetent, dangerous, and malicious man, unfit for watchman, and that the defendant railway company knew this, and continued him, after it knew it, in its service as watchman. This evidence was incompetent, and it was prejudicial error to admit it. Railway Co. v. Hackett, 58 Ark. 389, 24 S. W. 881. If it were competent to introduce evidence to show that Pat Gallagher was a man of bad character, violent, dangerous, and unfit and incompetent for the position of watchman, it was not competent to show it by proof of individual instances of bad conduct upon his part in that position. "No evidence is allowed of particular acts of good or bad conduct, either to sustain or impeach character. The evidence must be confined to general reputation." 3 Rice, Ev. § 376; Jones v. State, 76 Ala. 9; and Hussey v. State, 87 Ala. 121, 6 South. 420. "Every person is supposed to be capable at any time of sustaining his general reputation, but it would be unreasonable to expect any one to be prepared, without special notice, to answer an assault on his character imputed by particular acts of bad conduct." 3 Rice, Ev. § 376. "Neither good nor bad character can be proved by specific acts or charges." Smith v. State, 47 Ala. 540; McCarty v. People, 51 Ill. 231, 99 Am. Dec. 542; Gordon v. State, 3 Iowa, 410; State v. Williams, 77 Mo. 310. In civil cases evidence of the general character is not admitted unless the nature of the action involves the general character of the party, or goes directly to affect it. "Thus, evidence impeaching the previous general character of the wife or daughter in regard to chastity is admissible in an action by the husband or father for seduction, and this, again, may be rebutted by counter proof." 1 Greenl. Ev. § 54, and cases cited. There can be no...