State ex rel. Thym v. Shain

• Decision Date: 21 April 1937
• Docket Number: 35130
• Citation: 104 S.W.2d 237,340 Mo. 927
• Parties: State of Missouri at the relation of Herman H. Thym, Relator, v. Hopkins B. Shain, Ewing C. Bland and Robert M. Reynolds, Judges of the Kansas City Court of Appeals
• Court: Missouri Supreme Court

104 S.W.2d 237

340 Mo. 927

State of Missouri at the relation of Herman H. Thym, Relator, v. Hopkins B. Shain, Ewing C. Bland and Robert M. Reynolds, Judges of the Kansas City Court of Appeals

No. 35130

Supreme Court of Missouri

April 21, 1937

Writ quashed.

Langworthy Spencer, Terrell & Matz for relator.

The Kansas City Court of Appeals failed to follow the decisions of this court in holding that where plaintiff's witness Little had testified that immediately following the accident he helped carry plaintiff into the garage and then put his card in plaintiff's pocket when, and in contradiction thereof, relator's counsel had stated in his opening statement, and relator and his witness Gilkey testified that the man who helped relator and his witness Gilkey carry plaintiff into the garage was not the man who put a card in plaintiff's pocket, such statement of relator's counsel and such testimony of relator and his witness Gilkey constituted a direct attack on the general reputation of the witness Little and put his character in issue so that it was competent for plaintiff in rebuttal to introduce testimony by his witness Shackelford as to Little's general reputation for honesty, truth and veracity (such testimony being admitted over the objection of the relator that the character and general reputation of the witness Little had never been attacked or put in issue). Dudley v. McCluer, 65 Mo 243; State ex rel. Mass. Bonding Co. v. Allen, 308 Mo. 117; Black v. Epstein, 221 Mo. 305; State v Fogg, 206 Mo. 716, 15 A. L. R. 1066; State v Ritter, 288 Mo. 390; Bank v. Richmond, 235 Mo. 543; Orris v. C., R. I. & P. Ry. Co., 279 Mo. 23; State v. Cropper, 327 Mo. 204; State v. Jenkins, 327 Mo. 332; State v. Harlow, 327 Mo. 237; State v. Marshall, 317 Mo. 423. (a) The Kansas City Court of Appeals failed to follow the decisions of this court in refusing to reverse and remand this cause on account of the erroneous admission of the highly prejudicial testimony of the witness Shackelford to the effect that plaintiff's witness Little's general reputation for honesty, truth and veracity was good (such testimony being admitted over the objection of relator as recited in Point (a) above) when the character of the witness Little had not been attacked or put in issue by the relator. State v. Reed, 250 Mo. 385; Fulkerson v. Murdock, 53 Mo.App. 155; State v. Thomas, 78 Mo. 343; State v. Cooper, 71 Mo. 436; State v. Jaeger, 66 Mo. 173; Dudley v. McCluer, 65 Mo. 243.

Trusty & Pugh, Philip L. Levi and Guy W. Green, Jr., for respondents.

(1) The opinion of the Court of Appeals does not conflict with prior controlling decisions of the Supreme Court cited by relator. (a) In holding that the character of the witness Little had been attacked because the facts are not similar to the facts in any of the cases cited. Dudley v. McCluer, 65 Mo. 241; State ex rel. Mass. Bonding Co. v. Allen, 308 Mo. 109; Black v. Epstein, 221 Mo. 286; State v. Fogg, 206 Mo. 696; State v. Ritter, 288 Mo. 381; Bank v. Richmond, 235 Mo. 532; Orris v. C., R. I. & P. Ry. Co., 279 Mo. 18; State v. Cropper, 327 Mo. 193; State v. Jenkins, 327 Mo. 326; State v. Harlow, 327 Mo. 231; State v. Marshall, 317 Mo. 413; Fulkerson v. Murdock, 53 Mo.App. 153; State ex rel. v. Reynolds, 214 S.W. 121; State ex rel. v. Cox, 335 Mo. 596; State ex rel. v. Haid, 330 Mo. 686, 51 S.W.2d 79; State ex rel. v. Daues, 19 S.W.2d 700. (b) The opinion of the Court of Appeals does not declare a contrary rule of law to that set out in the Orris case. Costello v. Kansas City, 280 Mo. 576; State ex rel. v. Richards, 11 S.W.2d 1035; Orris v. Ry. Co., 279 Mo. 18. (2) Where a witness's character is attacked in any manner, evidence of his good reputation becomes admissible, and it is not necessary that his character be attacked only by evidence that his reputation for truth and veracity is bad. State v. Speritus, 191 Mo. 24; State v. Weisman, 238 Mo. 556; State v. Craft, 92 S.W.2d 633; 70 C. J. 922; State v. Cook, 207 S.W. 831; Costello v. Kansas City, 280 Mo. 576. (3) It was within the sound discretion of the court to permit evidence of good reputation where the relator irregularly and improperly defamed the witness's reputation, and there was no other way to meet the charge. Jones v. Werthan Bag Co., 254 S.W. 4. (4) The judgment was clearly for the right party, under defendant's own testimony and errors in admission of testimony, if any, are immaterial. Kaley v. Huntley, 63 S.W.2d 23; Sullivan v. Union Elec., 56 S.W.2d 97; Roberts v. Consolidated, etc., Co., 70 S.W.2d 543; McCombs v. Ellsberry, 85 S.W.2d 135; Thompson v. Smith, 253 S.W. 1023; Peetz v. Vahlkamp, 11 S.W.2d 26, 321 Mo. 287.

Westhues, C. Cooley and Bohling, CC., concur.

OPINION

WESTHUES

This is a certiorari proceeding, wherein relator seeks to quash the record and opinion of the Kansas City Court of Appeals in the case of Drake v. Thym, reported in 97 S.W.2d 128, on the theory that in the opinion the court construed certain evidence and declared a rule of law in conflict with controlling decisions of this court.

Drake, the plaintiff in that case, sued Thym to recover damages for personal injuries alleged to have been sustained as the result of a collision between a motorcycle, on which plaintiff was riding, and an automobile driven by the defendant. Drake obtained a judgment in the sum of $ 4000. On appeal the Court of Appeals affirmed the judgment and Thym instituted this proceeding to quash the opinion. The facts, as stated by the Court of Appeals, and the conclusion of the court on the point in question are found on pages 131 and 132 of 97 S.W. (2d), as follows:

"It is insisted that the court erred in admitting evidence of the good reputation of plaintiff's witness, Little, because his character was not impeached by the defendant.

"The facts show that Little was a resident of Kansas City at the time of the collision but afterwards, and at the time of the trial, he was in the City of New York where he resided; that, at the latter place, his deposition was taken by the plaintiff. In his deposition Little testified, among other things, that he was driving his car south on the west side of Troost Avenue about 50 or 60 feet to the rear of defendant's car, which was going at the rate of about 25 to 30 miles per hour; that defendant suddenly turned to go into the garage without any warning being given and proceeded on to the point of the collision without diminishing his speed. Little also testified to other facts favorable to plaintiff's case.

"In his opening statement to the jury defendant's counsel stated that Little's deposition had been taken in New York; that although Little would testify that he saw the collision, as a matter of fact, he came into the garage 10 or 15 minutes after that event and asked the mechanics there 'if the street car company was involved in the accident;' that Little put a card in plaintiff's pocket and then left.

"Little in his deposition, testified that after the collision he stopped his car on the west side of Troost Avenue, got out and assisted the defendant in carrying plaintiff into the garage where he first put his card in plaintiff's hand and then, afterwards, took it out of his hand and placed it in plaintiff's pocket. Although Little, when his deposition was taken, was cross-examined at length on behalf of the defendant, he was not asked if he had made the remark about the street car company and he was not questioned about not seeing the collision.

"Defendant testified that he and some stranger carried plaintiff into the garage; that his impression was that the stranger was a middle-aged man; that plaintiff was unconscious; that afterward a man came into the garage, whom the witness thought was a young man, not a middle-aged man, and put a card in plaintiff's hand, then took it out of his hand and put it into plaintiff's pocket.

"Defendant's witness, Gilkey, testified that he was employed in the garage; that defendant and another gentleman brought the boy into the garage on the night in question; that in about 10 or 15 minutes two gentlemen came into the garage together, and one of them, the younger of the two, put a card in plaintiff's pocket; that the man who put the card in plaintiff's pocket was not the man who helped carry him into the garage. Defendant sought to prove by this witness that the man who put the card in plaintiff's pocket was the man who asked if the street car company was involved in the accident. Plaintiff objected to the question and the objection was sustained.

"In rebuttal, plaintiff put upon the stand, one Shackelford, who was asked what was the general reputation of Little for honesty, truth and veracity. Defendant objected to the question on the ground that the character and reputation of the witness had not been attacked or put in issue. This objection was overruled and the witness answered: 'He was one of the most upstanding young men that I have known in a number of years.'

"It is claimed by the defendant that he did not, in any way, seek to impeach the reputation of the witness Little and that the testimony of Shackleford was merely for the purpose of bolstering up Little's testimony. In the beginning defendant objected to the witness, Shackleford, testifying because he was put upon the stand in rebuttal. Then counsel for plaintiff stated that he was putting Mr. Shackelford on the stand because Little's reputation had been attacked. The court stated that nobody had attacked Mr. Little's reputation but, after a discussion out of the presence of the jury, the court evidently changed his mind for the reason that he overruled the formal objection then made by counsel for defendant to the question concerning the reputation of Little.

"It is insisted by the...