Sklebar v. Downey

*7 DAUES, P, J. — This is an action for damages, in which the petition alleges that defendant wantonly and maliciously assaulted plaintiff and shot and wounded her with a shotgun. There was a verdict and judgment for plaintiff for $1000 a'ctual, and $500 exemplary damages. The defendant appeals. The pleadings are not questioned. The defendant concedes that the evidence is sufficient to make a prima-facie case for plaintiff. The assignments of error go to the misreception of evidence, and the instruction on the measure of damages. Briefly, the facts are that plaintiff and defendant occupied adjoining farms in Franklin county, Missouri, and considerable enmity had engrasped them on account of litigation over a roadway. Plaintiff’s evidence is that she was shocking corn in the field on the day named, and that defendant approached her and quarreled with her, and then went to his house, got a shotgun and shot her, inflicting wounds. The defendant stoutly denied that he either shot or attempted to shoot plaintiff, and introduced evidence tending to prove that plaintiff’s injuries, however caused, were minor. *8 At tbe trial, and to support plaintiff’s ease in chief, plaintiff introduced in evidence the transcript of the justice of peace which showed that defendant had been tried and convicted before a jury and fined $1 and costs for the identical acts complained of in the petition. When this record was offered in evidence, the defendants strenuously objected to its admissibility on the ground that same was not admissible because plaintiff was not a party to the prosecution of the defendant in the State case, and that evidence of his conviction in the criminal case could not be used against him in this case. The court overruled the objection and allowed the justice’s record showing defendant’s conviction to be read in evidence to the'jury. This action of the court forms defendant’s chief complaint here. Authorities throughout the States quite generally agree that the judgment1 or proceedings in a criminal ease constitute no proof in a civil action involving the same facts. [34 Corpus Juris, sec. 1387, p. 90; Myers v. Casualty Co., 123 Mo. App. 682, l. c. 690, 101 S. W. 124; Womach v. City of St. Joseph, 201 Mo. 467, 100 S. W. 443. See also Bennett v. Life Assur. Co., 255 S. W. 1076.] In 34 Corpus Juris, supra, the cases are collated and the learned commentator concludes that the great weight of authority in this country, in the absence of any statute to the contrary, is to the effect that a judgment in a criminal prosecution is not proof of anything in a civil action, except the mere fact of rendition. In Myers v. Casualty Co., supra, the Kansas City Court of Appeals definitely rules that a judgment in a criminal prosecution cannot be received in a civil action to establish the truth of the facts on which it was rendered, but that a plea of guilty is admissible. So, without discussing further that proposition and the cases supporting the same, it would seem quite clear that the court committed error' in allowing this evidence to go to the jury as proof of plaintiff’s cause of action in the civil ease. The respondent, tacitly at least, concedes this proposition of law, but seeks to avoid the difficulty upon this theory, that is, that the record shows that after the defendant was convicted for the assault before the justice, he appealed to the circuit court of Franklin county; that when the case reached the circuit court, and after the trial had begun there, the defendant dismissed his appeal and paid the fine on the judgment as rendered in the justice court. Plaintiff says that this action on the part of defendant was equivalent to a plea of guilty, and for that reason the transcript was admissible as evidence in the civil case. We cannot accede to this view. The transcript of the justice of the peace court was introduced as evidence to establish plaintiff’s case in this action.The conviction before the-justice of peace was resultant of a trial on a plea of not guilty. The defendant at no time admitted his guilt; the jury found him guilty; he took an appeal and then dis *9 missed tlie appeal and paid the fine imposed by the jury. This certainly does not constitute a plea of guilty or an admission of guilt. This error of the court is not a technical one, but one which reached the substantial rights of defendant and was highly prejudicial. For that reason a retrial must be had. The objection made to the instruction is that same assumes disputed facts. Since there is to be a retrial, it is not-likely that this same question will again arise. . For the reasons above set out, the judgment is reversed and the cause remanded. BeoTcer and Nipper, JJ., concur.