Vernon v. Rife

• Decision Date: 03 May 1927
• Docket Number: No. 19715.,19715.
• Citation: 294 S.W. 747
• Parties: VERNON v. RIFE.
• Court: Missouri Court of Appeals

294 S.W. 747

VERNON v. RIFE.

No. 19715.

St. Louis Court of Appeals. Missouri.

May 3, 1927.

Rehearing denied June 7, 1927.

Appeal from St. Louis Circuit Court; Granville Hogan, Judge.

"Not to be officially published."

Action for breach of contract of employment, brought by Jean Vernon against George W. Rife. From a judgment for plaintiff, defendant appeals. Affirmed.

Forest P. Tralles and Fred J. Hoffmeister, both of St. Louis, for appellant.

Greensfelder, Rosenberger & Grand, of St. Louis, for respondent.

BENNICK, C.

This is an action, instituted by plaintiff, a performer in vaudeville and burlesque, to recover damages from defendant, the owner of a theatrical company, for alleged breach of contract of employment. The verdict was for plaintiff, in the sum of $2,210, and, from the judgment rendered thereon, defendant has appealed.

The petition recited that plaintiff entered into a certain agreement with defendant, by the terms of which defendant employed plaintiff as a theatrical performer, that she entered upon her employment and performed all of her duties faithfully, but that defendant, without any cause or justification, discharged her, and that she was at all times ready and willing to carry out said contract and perform her duties thereunder. The answer was a general denial.

The evidence disclosed that plaintiff was employed by defendant on June 27, 1924, as a member of the "Take-A-Look" company, also designated as "Mollie Williams' Own Show," under a written contract covering the theatrical season of 1924-25, comprising 35 weeks. Her salary was $90 a week. Early in the season friction developed between plaintiff on the one hand, and the leading lady and the orchestra leader on the other, culminating in the discharge of plaintiff by defendant on September 20, 1924, while the company was playing at Pittsburgh, Pa. It appears that plaintiff left Pittsburgh with the other members of the troupe, but, at defendant's direction, was ejected from the train at some point between Pittsburgh and the destination of the company.

Plaintiff was out of employment for three months, and thereafter finished the season in vaudeville at a salary of $30 a week.

We gather from the record that the reasons assigned by defendant for the discharge of plaintiff were that she refused to obey the directions of the manager of the company with regard to the performance of her duties, and used vile and indecent language toward certain members of the troupe, in the presence of the girls of the chorus, and in a tone of voice audible to a portion of the audience present in the theater.

Although defendant unsuccessfully demurred to all the evidence, the propriety of the submission of the case to the jury is not made an issue in this court.

Defendant assigns error in the admission of certain evidence, alleged to have been incompetent, immaterial, and irrelevant.

The first complaint has to do with certain testimony of plaintiff regarding her conversations with, Miss Mollie Williams, with respect to inducements held out to her by the latter to influence her to join the company. Conceding that there was no showing that Miss Williams had authority to represent defendant in any of such transactions, the admission of the testimony complained of was not prejudicial error, inasmuch as the subsequent signing of the contract in question was not disputed, but was, in fact, admitted by defendant's manager, testifying for plaintiff.

Further complaint is made as to the admission of evidence: First, that plaintiff was ejected from the train, at the request of defendant, after the company had left Pittsburgh; and, second, that the company made money in Washington. According to the statements of plaintiff's counsel at the time, the first bit of testimony was elicited to show a final repudiation of the contract by defendant, and the second to create the inference that plaintiff was discharged to reduce expenses after the show left Washington, and not for any just cause and excuse. For such purpose we are inclined to the view that this evidence was competent.

The point is next made that the court erred in permitting counsel for plaintiff, over the objection and exception of defendant, to cross-examine and impeach the witness Diehl, the manager of defendant's company, whom plaintiff had put upon the stand as her own witness in order to prove defendant's signature to the contract in question. After Diehl had testified as to defendant's signature to the contract, counsel for defendant cross-examined him at length, and thereafter counsel for plaintiff asked several questions on redirect examination. It is of the latter interrogation that defendant now complains, though, as we read the record, to style it either as cross-examination or as an attempt at impeachment is not altogether accurate.

We recognize the rule urged by defendant, that a witness called by either party remains such party's witness for all purposes throughout the trial. Furthermore, the general rule is that a party cannot impeach a witness whom he has introduced, unless he has shown that he has been entrapped by such witness, or has been surprised by his testimony. But, in the instance before us, it does not appear that counsel for plaintiff attempted to inquire into the reputation of the witness for truth and veracity, nor did he endeavor to show that the witness had at any time made statements out of court contradictory to his testimony on the stand. Consequently, it clearly cannot be said that it was the design of plaintiff's counsel to impeach his witness.

As to the second feature of defendant's objection, it is quite true that the interrogation to which the witness was subjected by plaintiff's counsel on redirect examination was closely akin to cross-examination, in that its evident purpose was to weaken or disprove the case of defendant. But it must be borne in mind that this witness, though called by plaintiff, was the man with whom she had had her controversy; whose orders she was alleged to have disobeyed; and who had been responsible for her discharge. Furthermore, Diehl testified in no uncertain terms that he had been sent to court by defendant to defend this action; that he was acting under defendant's instructions; and that defendant's interest was his interest. The conduct of cross-examination is largely discretionary with the trial court, and, in the furtherance of truth and justice, it is usual and proper for the court, in the exercise of its discretionary power, to allow considerable latitude in the examination of an adverse witness, as Diehl admittedly was. Thus, though the general rule is that a party may not cross-examine his own witness, there is a recognized exception to such rule, subject to the discretion of the court, more often applied in criminal cases, but nevertheless applicable to civil practice, where the interest of the witness is adverse, as under the circumstances here prevailing. State v. Church, 199 Mo. 605, 635, 98 S. W. 16; Semper v. American Press, 217 Mo. App. 55, 273 S. W. 186; Dinger v. Friedman, 279 Pa. 8, 123 A. 641; Branegan v. Town of Verona, 170 Wis. 137, 174 N. W. 468; Muenkel v. Muenkel, 143 Minn. 29, 173 N. W. 184. In the light of the above, therefore, we cannot say that in the present instance...