Tedens v. Schumers

• Decision Date: 17 November 1884
• Court: Illinois Supreme Court
• Parties: JOHN H. TEDENS et al.v.J. B. SCHUMERS.

112 Ill. 263

1884 WL 10002 (Ill.)

JOHN H. TEDENS et al.

v.J. B. SCHUMERS.

Supreme Court of Illinois.

Filed at Ottawa Nov. 17, 1884.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the First District;--heard in that court on appeal from the Circuit Court of Cook county; the Hon. JOHN G. ROGERS, Judge, presiding.

Mr. EDWARD F. COMSTOCK, and Mr. J. EDWARDS FAY, for the appellants:

As a general rule it is not competent to give evidence of the general character of a witness for truth and veracity, unless an attempt has been made to impeach him. A mere contradiction in the testimony of witnesses does not necessarily involve their moral character, and does not, alone, authorize the admission of evidence in support of their general reputation for truth. Verner v. Tucker, 30 Md. 456; Russell v. Coffin, 8 Pick. 143; People v. Halse, 3 Hill, 309; Harks v. People, 5 Denio, 103; Railroad Co. v. Williams, 54 Ala. 168; Werts v. May, 21 Pa. St. 274; Braddie v. Brownfield, 9 Watts, 124; Rogers v. Moore, 10 Conn. 13; Johnson v. State, 21 Ind. 329; People v. Gay, 7 N. Y. 378; People v. Rector, 19 Wend. 569; Haines v. People, 82 Ill. 430; Crose v. Rutledge, 81 Id. 266; Brann v. Campbell, 86 Ind. 516; State v. Cooper, 71 Mo. 436; Stillwell v. Carpenter, 2 Abb. 238; Moody v. Pell, Id. 274; Kitteringham v. Dance, 58 Iowa, 632; Greenleaf on Evidence, (14th ed.) sec. 55.

The court erred in the giving of the instruction asked by the appellee, and in refusing those asked by the appellants.

Mr. W. C. MINARD, and Mr. W. H. SKELLY, for the appellee:

After the defendants had assailed the character of the plaintiff by an effort to prove that he was a thief, and attempted to impeach him by proof that he had made contradictory statements out of court to his testimony, the admission of evidence of his good character was proper. Craig v. Rohrer, 63 Ill. 335.

Whenever the character of a witness for truth is attacked in any way, it is competent for the party calling him to give general evidence in support of his good character. Paine v. Tilden, 20 Vt. 554; Carter v. People, 2 Hill, 317; People v. Ah Fat, 48 Cal. 61; People v. Amanagus, 50 Id. 233.

But even if such evidence was improper, its admission was harmless.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action of assumpsit, brought by Schumers, in the circuit court of Cook county, against J. H. Tedens and J. Thormahlm. There was filed the general issue, under which a trial was had, resulting in a verdict and judgment against defendants for $1379. The verdict, as returned by the jury, was for $2758, but to avoid a new trial plaintiff remitted one-half, and took judgment for the balance. On an appeal to the Appellate Court for the First District the judgment was affirmed, and defendants bring the record to this court, and ask a reversal.

It appears from the evidence that appellants owned a general store, which was kept by them in Lemont, in Cook county. Appellee, after being in their employment for thirteen or fourteen years, commenced business on his own account, but it proving unsuccessful, he soon abandoned it, and returned to the employment of appellants, and he so remained until on the 1st of June, 1879, when, on a settlement, they were found to be indebted to him in the sum of $2100, to evidence which they drew and gave to him a due bill, drawing eight per cent interest. Appellee continued in their employment until in March, 1880, when defendants claimed to have discovered that appellee was secretly removing goods from the store without either paying for or charging them to himself. They also claimed that he confessed that he had so acted for near four years past. They claimed the amount so taken aggregated $4000, and, after several interviews, they claim that it was arranged that to satisfy their demand he surrendered the due bill, and they cancelled it, and have since held it. Appellee insists that he did not surrender the due bill as a satisfaction of such claim on the part of appellants, but that it was agreed that they should hold it until they could examine and ascertain the amount he owed them for goods thus taken, credit the amount on the due bill, and pay him the balance, if any, which they have never done.

On the trial, appellee testified to his theory of the case. Appellants, on the stand, contradicted him, and testified to their version of the matter. In some portions of their evidence they are corroborated by other witnesses. Appellee, to support his testimony, called a number of witnesses to prove his general character for truth and veracity, to which appellants objected, but the court admitted the evidence, and they excepted, and urge its admission as error. Appellee claims this evidence was admissible, on the ground that his character for truth and veracity was attacked by being contradicted by other witnesses. This is, we think, a misconception of the rule. As we understand the rules of evidence, a witness can not call witnesses to support his general character for truth and veracity until it is assailed. Mere contradictions, or different versions by witnesses, do not justify the application of the rule that he may call witnesses to support his character for truth. When witnesses are called who say his general character is bad, then he may call witnesses in support of his general character. Before he can do so his general character must be attacked. If the practice sanctioned the calling of witnesses to prove general character whenever a witness is contradicted, it would render trials interminable. The greater portion of the time of courts would be liable to be engaged in the attack and support of the characters of witnesses. If permitted, each of the contradicting witnesses would have the same right, and not only so, but all of the supporting witnesses on each side contradicting each other would be entitled to the same privilege. It is thus seen that the rule must be limited to cases where witnesses are called to impeach the general character of a witness, otherwise it, instead of reaching truth by the verdict, would tend to stifle it under a large number of side issues, calculated to obscure and not to elucidate them. It may be that some courts have...