St. Louis, Iron Mountain & Southern Railroad v. Stroud

Hughes, J., (after stating the facts). There was much evidence introduced on the trial of this cause which it is unnecessary to state or discuss here. The plaintiff testified that on the evening of January 16th, 1895, he received a letter from his wife in Hot Springs, calling on him to come there at once. The letter was then offered in evidence, and read to the jury, over the defendant’s objection, to which he excepted. That letter was as follows: “Hot Springs, Ark., Jan. 16, 1895. “Dear Husband: Please come at once, as Mary is very sick, and I am in one respect very dangerous. Been sick for over a week, and you know what bad spells I have with my heart, and other troubles; so do come. The doctor says I am liable to die at any time. My cook is gone, and I am here all alone. I thought, in spite of all I could do last night, Mary would have convulsions. Now I need you; let work and everything go. If you never get work, come at once. Tour true loving wife until death. “Etta Stroud.” May, alluded to in the letter, is shown in evidence to have been the plaintiff’s adopted daughter. So much of this letter as was necessary or tended to show that the plaintiff’s purpose in going to the depot on the night of the 16th was to take the train for Hot Springs was competent and relative evidence, but the reading of it in full to the jury was not necessary for that purpose, and it was calculated to excite the sympathies of the jurors, and prejudice them against the defendant, and was therefore erroneous. S. W. Williams was permitted, over the objection of the defendant, to testify as follows- Q. “How long have you known him (Pat Gallagher)? A. “Over thirty years. I have known him ever since the war; before, I think. Q. “Do you remember the suit of Thomas Hackett against the St. Louis Iron Mountain reported in 58 Arkansas? A. “I do. I was one of the attorneys for plaintiff; I was senior counsel for plaintiff. Q. “Was the defendant in this case, the Iron Mountain Railway Company, defendant in that case? A. “Yes, sir, there is no other in the state of Arkansas. Q. “What was that action brought for? A. “That action was brought for the shooting of Hackett by this man Gallagher, while in the employ of the Iron Mountain Railway Company, near the foot of Rock street, at the freight depot of the said road. Q. “Then that case was brought to recover damages for the conduct of Pat Gallagher? A. “It was brought by plaintiff for personal injuries inflicted by Pat Gallagher as employee of the Iron Mountain Railway Company. Q. “What was the result of the suit? A. “We recovered for plaintiff for his injuries. The railway company appealed the ca.se to the supreme court, where the judgment of the Pulaski circuit court was affirmed, and the defendant railway company paid the judgment to me as Haekett’s attorney, but, in order to hold recourse upon Gallagher, the company had me, as attorney in fact for Hackett, assign the judgment to it, and the railway company satisfied it in the form of a purchase, instead of payment of the judgment. The judgment was against both the railway company and Gallagher. Q. “Do you remember, Colonel, about when that shooting of Hackett took place? A. “April 7, 1890.” S. N. Davis was allowed, over defendant’s objection, to give testimony about the shooting of Hackett by Pat Gallagher, and questions were asked various other witnesses about the same, which they were allowed to answer over the objection of the defendant, to all of which it excepted and urged in its motion for re-hearing, which was overruled by the court, to which defendant excepted. The purpose of all this testimony was to show that Pat Gallagher was an incompetent, dangerous and malicious man, unfit for watchman, and that the defendant railway company knew this, and continued him, after it knew it, in its service as watchman. This evidence was incompetent, and it was prejudicial error to admit it. Railway Co. v. Hackett, 58 Ark. 389. If it were competent to introduce evidence to show that Pat Gallagher was a man of bad character, violent, dangerous, unfit and incompetent for the position of watchman, it was not competent to show it by proof of individual instances of bad conduct upon his part in that position. No evidence is allowed of particular acts of good or bad conduct, either to sustain or impeach character. The evidence must be confined to general reputation. 3 Rice, Evidence, § 376; Jones v. State, 76 Ala. 9; and Hussey v. State, 87 Ala. 121. “Every person is supposed to be capable at any time of sustaining his general reputation, but it would be unreasonable to expect any one to be prepared, without special notice, to answer an assault on his character imputed by particular acts of bad conduct.” 3 Rice on Evidence, § 376. “Neither good nor bad character can be proved by specific acts or charges. Smith v. State, 47 Ala. 540; McCarty v. People, 51 Ill. 231; S. C. 99 Am. Dec. 542; Gordon v. State, 3 Ia. 410; State v. Williams, 77 Mo. 310. In civil cases evidence of the general character is not admitted unless the nature of the action involves the general character of the party, or goes directly to affect it, Thus, evidence impeaching the pi*evious general character of the wife or daughter in regard to chastity is admissible in an action by the husband or father for seduction, and this again may be rebutted by counter proof.” 1 Greenleaf, Evidence, § 54, and cases cited. There could be no doubt that when a witness is put on the stand to attack or defend character, he can only be asked, on the examination in chief, as to the general character of the person whose character is in question, and he will not be permitted to testify to particular facts, either favorable or unfavorable to such person; but when the witness is subject to cross-examination, he may then be asked, with a view to test the value of his testimony, as to particular facts. 3 Rice on Evidence, § 375, p. 603 and § 376, aud cases. On the trial, at the instance of the plaintiff, the court gave torthe jury instruction numbered 5, which is as follows: “If the jury find for the plaintiff, then plaintiff is entitled to recover full compensation for the restraint imposed upon him, and the pain and anxiety of mind he suffered on account of said restraint; also for any insult or indignity inflicted upon his person, and the humiliation and shame caused by said injury, if any, and for the anxiety he suffered, if any, on account of being kept from his wife and child at Hot Springs.” The latter clause of this instruction is erroneous, in which the jury are told that they might award the plaintiff damages “for the anxiety he suffered, if any, on account of being kept from his wife and child at Hot Springs.” The proof shows that the plaintiff was ejected from the depot at about 1 .-30 o’clock a. m., and that the south bound passenger train was due at the station at 2 o’clock a. m., and that he could have taken that train had he so desired; also, that another train south bound was due at that depot at 7 o’clock a. m. and still another at 1:45 p. m. and that the plaintiff took neither, nor made any effort to take either. Then it appears he was not delayed by being expelled from the depot. He voluntarily remained over at Little Rock several days after this expulsion by Gallagher. There was no evidence upon which to base that part of this intruction, and that part is erroneous and prejudicial. Besides, to say the least' of it, if such damages were not too remote, the instruction is to broad and unlimited in this latter clause. We will not discuss the testimony, as the case must be remanded. Life is too short to discuss the great number of instructions given and refused. For the errors indicated the judgment is reversed, and the cause is remanded for a new trial. Opinion delivered January 13, 1900.