Landy v. Kansas City

Ellison, J. The plaintiffs are husband and wife and brought this action against defendant city for damages to real estate, alleged to be owned by the plaintiffs. On trial below the court refused to hear the evidence of the husband. The court, afterwards, concluding such ruling was error, sustained plaintiff’s motion for new trial. From the order sustaining the motion for new trial defendant has appealed. The title to the real estate was in the wife by ordinary deed, not as her separate estate. In such ease the husband has an interest in the property and should be admitted to testify as a party in interest. Fugate v. Pierce, 49 Mo. 441; Cooper v. Ord, 66 Mo. 428; Steffers v. Banes, 70 Mo. 399; O’Bryan v. Allen, 95 Mo. 68; Brownlee v. Fenwick, 103 Mo. 420; Whalen v. Baker, 49 Mo. App. 290. But it is principally argued that the plaintiffs showed by other witnesses the facts which were sought to be established by the testimony excluded. This will not cure the error. If the points sought to be established had been conceded or if they had been, or [145] had become during the trial, points about whieh no substantial difference existed or, over whieh there was no dispute, it could very well be said that the exclusion was harmless error. But the matter here concerned the main issue for trial and we can not allow defendant the privilege of practically choosing the witnesses with ‘whom plaintiffs must prove their case. For aught we know the witness excluded might have been the one to whom the jury would have given most credit. It would perhaps have been better if the petition had shown in what way plaintiffs were owners of the real estate; but we can not see that the mere allegation of ownership, without more, made of them,- in effect, tenants by entirety. Nor do we agree with appellant’s contention that the property was the separate estate of the wife. "We are satisfied with the court’s action in granting a new trial and affirm the judgment. All concur.