Ulrich v. Chicago, Burlington & Quincy Railroad Co.

• Decision Date: 01 April 1920
• Citation: 220 S.W. 682,281 Mo. 697
• Parties: CALVIN W. ULRICH, Appellant, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY
• Court: Missouri Supreme Court

220 S.W. 682

281 Mo. 697

CALVIN W. ULRICH, Appellant, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY

Supreme Court of Missouri

April 1, 1920

Appeal from Knox Circuit Court. -- Hon. James A. Cooley, Judge.

Affirmed.

L. F Cottey and James C. Dorian for appellant.

(1) On the trial the defendant introduced four witnesses from Putnam County, who severally testified, against the objections of counsel for plaintiff, that they were acquainted with the general reputation of plaintiff, in the eastern part of Putnam County, for honesty, truth, veracity and morality, and that it was bad. These witnesses also testified that the plaintiff had not lived in Putnam County for about ten years but that he had lived in Moulton, Iowa, for the past seven or eight years and that was his home. These witnesses had never lived in Moulton, and did not claim or pretend to know or testify as to the reputation of plaintiff in Iowa. We insist that the court erred in overruling our objections to the testimony of said witnesses. State v. Shouse, 188 Mo. 478; State v. Parker, 96 Mo. 390. (2) Instructions should fairly submit the issues presented by the pleadings and the evidence. The jury should try the case according to the law and the evidence, and not otherwise. While a jury is entitled to draw inferences, they must be deduced from the testimony, not from conjecture. The evidence is that plaintiff was injured while trying to board defendant's car at Mine No. 1, as alleged in his petition. There is not a glimmer of evidence, near or remote that plaintiff received the injuries he complains of at any other time or place. Instructions 2 and 3 given at the request of defendant are erroneous and constitute prejudicial error. Flever v. Railroad, 216 Mo. 209; Willmott v. Street Ry. Co., 106 Mo. 535; Crow v. Railroad, 212 Mo. 610; McElvain v. Railroad, 151 Mo.App. 148. (3) Defendant's Instructions 4 and 5 are in conflict. Said Instruction 4 correctly stated the law, but said Instruction 5 did not. Each one authorized a verdict for the defendant. Said Instruction 4 and 5 are separate and independent declarations of law, and are directly in conflict, one of them declaring the law correctly, the other erroneously. This court cannot determine by which one the jury was guided. The error is manifest and prejudicial. Shepard v. Transit Co., 189 Mo. 373; Mansur-Tebbetts Imp. Co. v. Ritchie, 143 Mo. 612; Mining Co. v. Fidelity & Casualty Co., 161 Mo.App. 208; Ross v. Street Ry. Co., 132 Mo.App. 481. (4) Defendant's Instruction 6 is erroneous and should not have been given in this case. Said instruction, in effect, destroys the probative force of the evidence of the witnesses, Drs. Prince and Downing, who testified for the plaintiff in their professional capacity, and also operated on him. There was no objection to their competency to testify as medical experts. They were competent witnesses; and their testimony is of probative force because they were the attending physicians. 14 Ency. Ev. p. 369. A further objection to said Instruction 6 is that it does not direct the jury to consider the testimony of said expert witnesses in connection with the other evidence in the case. Rose v. Spies, 44 Mo. 23; City of Kansas v. Butterfield, 89 Mo. 648; Smith v. Tel. Co., 113 Mo.App. 443. Said Instruction 6 is based on the assumption that the jury was as well qualified to judge about the injuries plaintiff was complaining of, and their effect, as the attending physicians who examined plaintiff and operated on him to save his life. That was manifest error, because this is not a case that is within the knowledge and common sense of the average layman. Ewing v. Goode, 78 F. 442. (5) Defendant's Instruction 7 is erroneous under the evidence. Phippin v. Mo. Pac. Ry. Co., 196 Mo. 343. There is no evidence in the instant case that any witness testified to a state of facts in opposition to obvious physical facts or contradictory to the common knowledge or experience of men. The giving of said instruction was not only erroneous, but it was prejudicial error. (6) The court erred in not affording the plaintiff a fair and impartial trial on the issues raised by the pleadings in this cause. D. G. Co. v. Williams, 176 S.W. 476; Wright v. Kansas City, 187 Mo. 678; State v. Rogers, 108 Mo. 204; State v. Gessell, 123 Mo. 535; Whart. Cr. Ev. (9 Ed.) p. 472; State v. Parker, 96 Mo. 382; 1 Greenleaf, Ev. p. 259; State v. Houk, 169 Mo. 654.

J. G. Trimble and Campbell & Ellison for respondent.

(1) The evidence of the witnesses that plaintiff's reputation in Unionville and the east part of Putnam County, at which place he had lived for some forty years before he moved to Moulton, was bad, was admitted without objection. The so-called objection is not an objection, but a mere argument. Williams v. Williams, 259 Mo. 250. Granting the question as to whether the witness was acquainted with the plaintiff's general reputation was erroneous, and that sufficient objection was made, still such error was harmless. The question that followed the one last mentioned was, "What was that reputation, good or bad?" No objection was made to that question in the trial court. St. Louis v. Railroad, 248 Mo. 25; Semple v. Railroad, 152 Mo.App. 29; Rice v. Waddill, 168 Mo. 120; Stoner v. Royar, 200 Mo. 454; State v. Diemer, 255 Mo. 350. (2) Counsel now assert the evidence of plaintiff's general reputation in Putnam County was too remote. That objection was not made below and cannot be urged here. City of St. Louis v. Company, 248 Mo. 10. (3) The evidence was admissible no matter what objections were or could have been made. The evidence in this case reveals that plaintiff from youth to past middle life lived in the east part of Putnam County and that his conduct was such that he became a notorious character in that part of the country. After he passed middle life he moved to Moulton, Iowa, a distance of only a few miles. Thereafter, and until the time of the trial, he passed through Putnam County frequently and visited his step-daughter and plied his trade of selling spectacles and jewelry. We concede that a man who has acquired a bad reputation may reform, but there is, in this case, no evidence of reformation on the part of the plaintiff. The whole evidence in this case, considered, reveals the plaintiff is pursuing the sort of life that earned the reputation the witnesses gave him in the home in which he lived for more than forty years. He became so notorious that when he returned to his old home in Putnam County his very presence revived unfavorable talk about him. Coates v. Sulau, 26 P. 720; Hamilton v. People, 29 Mich. 195; Stratton v. State, 45 Ind. 468; Mitchell v. Com., 78 Ky. 219; Willard v. Godenough, 30 Vt. 393; State v. Lanier, 79 N.C. 622.

BLAIR J. Woodson, J., dissents.

OPINION

In Banc

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, Missouri; 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...