Ulrich v. Chicago, B. & Q. R. Co.

• Decision Date: 01 April 1920
• Docket Number: No. 20101.,20101.
• Citation: 220 S.W. 682,281 Mo. 697
• Court: Missouri Supreme Court
• Parties: ULRICH v. CHICAGO, B. & Q. R. CO.

220 S.W. 682

281 Mo. 697

ULRICH v. CHICAGO, B. & Q. R. CO.

No. 20101.

Supreme Court of Missouri, in Banc.

April 1, 1920.

Appeal from Circuit Court, Knox County; James A. Cooley, Judge.

Action by Calvin J. Ulrich against the Chicago, Burlington & Quincy Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.

L. F. Cottey and J. C. Dorian, both of Edina, for appellant.

J. G. Trimble, of St. Joseph, and Campbell & Ellison, of Kirkville, for respondent.

BLAIR, J.

This is an action for damages for injuries appellant alleges he sustained by reason of negligence of servants of respondent in charge of one of its trains. There was a verdict against appellant. The injury is alleged to have occurred November 29, 1911. Two previous actions were instituted and dismissed before this one was begun. There was a previous trial, or mistrial, in this case.

Appellant claims that while he was attempting to board respondent's train at Mine No. 1, in Adair county, other cars were permitted violently to strike the car he was getting upon, and that he was thrown and injured. There was evidence tending to prove injury due to the cause alleged. Respondent offered evidence tending to prove appellant was not injured at all at the time and place or in the manner alleged. There was testimony offered to impeach appellant, and he employed the same weapon against some of respondent's witnesses.

Appellant complains that the trial court erred in (1) admitting certain impeaching testimony ; (2) instructing the jury; and (3) so conducting the trial that it was unfair to appellant.

With respect to the first assignment the evidence tends to show that for many years prior to 1907 appellant had lived in the eastern part of Putnam county, Mo.; in 1907 he left Putnam county, and for a year or so had no established place of residence; he was in various states for short periods; in 1908 he established his headquarters in Moulton, Iowa, his wife staying there, and about 1910 he went to housekeeping in that town; he traveled about selling spectacles and jewelry after moving out of the eastern part of Putnam county he continued frequently to revisit it and pass through it and ply his vocation there; Moulton is but a few miles north of the eastern part of the north boundary of Putnam county; respondent offered testimony to show appellant's reputation was bad in Moulton at the time of the trial, in 1916, and then offered testimony tending to show his reputation in the eastern part of Putnam county where he formerly lived was bad at the time of the trial and had been at the time he left the county.

Other facts are stated in connection with the discussion of questions to which they are relevant.

I. Upon the question concerning the impeaching testimony of which he complains, appellant states in his brief that the objections he made on the trial were to the competency of the witnesses "to testify, and not as to what they would testify to." This construction of his objection is relied on by appellant to break the force of respondent's contention that he entirely failed to object on the trial to testimony as to his reputation, the admission of which he now assigns for error. He states his position to be that the witnesses "disqualified themselves to testify as to the reputation of appellant in Putnam county when they admitted he had not lived in that county" for a number of years. The impeaching witnesses were not asked, at the time the objections were made, concerning appellant's reputation at some past time, but the question put and objected to related to appellant's reputation in the eastern part of Putnam county at the time of the trial. It is apparent from this that the objection raises no question concerning the proper exercise of the trial court's discretion in admitting evidence of reputation at a former time, but presents, at most, a question of place of reputation. Veitinger v. Winkler, 8 Mo. App. loc. cit. 562; State v. McLaughlin, 149 Mo. loc. cit. 31, 32, 50 S. W. 315.

As a witness, appellant was subject to impeachment like any other witness. Viewed as an instrument of evidence, the improbability that a witness will tell the truth is relevant matter. This is affected by his character as it exists at the time of the trial. His character thus becomes a proper subject of attack. General reputation is admitted to prove his character. This reputation, to be competent, must be made up of what is generally said of the witness by those who are regarded by the law as having sufficient opportunity to observe his life and actions.

Ordinarily, these are they "among whom he dwells, or with whom he is chiefly conversant. * * * A man's character is to be judged by the general tenor and current of his life and not by a mere episode in it." Per Brace, in Waddingham v. Hulett, 92 Mo. loc. cit. 534, 5 S. W. 28. Usually those who reside in the "neighborhood" or "community" in which a witness resides are assumed to have the sort of opportunity to observe him which will enable them to speak justly of his character, and thus form the reputation which will correctly evidence it. This assumption is made because it is the usual order of things. It is obvious that instances are easily conceivable in which the people of the neighborhood of the residence of a witness might have scant opportunity for contact with him, while in some other community he may spend his days and transact his business, and the people there be afforded every opportunity to form and express a just opinion. Nor is it impossible for one to have a general reputation for veracity in more than one community. Now, appellant's objection to the competency of the witnesses raises the question, if it raises any, whether they had shown themselves qualified to speak of a reputation which was the result of what was generally said by persons in such contact with appellant that they were afforded opportunities to observe him and his course, of the kind which the law requires before it recognizes reputation, resulting from what they say, as competent.

In this case appellant had lived at Moulton for several years. Some nine or ten years before he had lived in the eastern part of Putnam county, and was generally and widely known by the people there. Moulton was but a few miles from the eastern part of Putnam county. County and state lines, as such, do not materially interfere with the spread of reputation. Appellant frequently revisited his old home and continued to ply there his vocation of spectacle and jewelry selling. He was still well and generally known in that community, as he had been for a great many years. With respect to the objection as to place of reputation, the trial court had a discretion to exercise which cannot be reviewed unless it was obviously abused. We cannot hold it was abused in this case. In Houk v. Branson, 17 Ind. App. loc. cit. 121, 45 N. E. 78, the reputation of a witness was proved to be bad in Crawfordsville, where he then lived. Other evidence that his reputation in his old home in the same county, where he lived several years before and which he frequently visited and where he continued to be known, was held admissible.

In Hank v. State, 148 Ind. loc. cit. 261, 46 N. E. 127, 47 N. E. 465, testimony was offered to show that the reputation of the witness in Covington, his home at the time of the trial, was bad. Testimony was then offered to show that the reputation of the witness at Hillsboro, 15 miles away, where the witness lived 15 months before, was also bad. It appeared that the witness was a doctor (as here), and continued to practice (as here) in the place of his former residence. The court held the testimony admissible.

"The general rule is that, in order to impeach a witness by proof of bad character, the predicate is a knowledge of his character in the community or neighborhood in which he resides; but the term `community' or `neighborhood' is not susceptible of exact geographical definition, but means, in a general way, where the person * * * has established a reputation. The inquiry is not necessarily confined to the domicile of the witness, but may extend to any community or society in which he has a well-known or established reputation. It is a matter of common knowledge that many men have their domiciles at one point and business at another, spend much of their time at the latter, and in fact have a better established reputation there than at the place of their actual domicile." Baer & Co. v. Cooperage & Box Mfg. Co., 159 Ala. loc. cit. 502, 503, 49 South. 95.

In this case the reputation in Mobile of a witness domiciled in Baltimore was admitted.

"A man's `neighborhood' is not necessarily confined to the particular locality in which he resides, but is coextensive with the extent of territory occupied by those with whom he associates and frequently comes in contact; one man's `neighborhood' may be a small hamlet, while the `neighborhood' of another may be a county or state." Peters v. Bourneau, 22 Ill. App. loc. cit. 179.

The word "neighborhood" comprises "the territory wherein the person in question resides, moves, circulates, does business, and has intercourse with his fellows." People v. Loris, 131 App. Div. loc. cit. 129, 115 N. Y. Supp. 238.

In State v. Henderson, 29 W. Va. loc. cit. 166, 167, 1 S. E. 240, the court upheld the admission of testimony that the reputation of defendant was bad in his old home community, whence he had removed seventeen years before, but in which he was well known and in which he continued to transact business and visit frequently. The court said:

"The manifest object of the rule is to find out the general reputation of the person sought to be impeached or sustained; and certainly, where a man is well known, he has a reputation either for honesty or dishonesty. Any one who is well acquainted with those, with whom such a person associates, and who know him well, is competent to speak of the...