Shaefer v. Missouri Pacific Railway Co.

SMITH, P. J. This is an' action by plaintiff against defendant to recover damages for an assault (committed by a conductor and negro porter of the latter <on the former while a passenger on a train of such latter. The facts which the plaintiff’s evidence tends to prove are stated with sufficient accuracy in the defendant’s statement of the case, and are: That plaintiff was a passenger on the defendant’s train on the evening of January 25, 1899, and when between St. Joseph, Missouri, and Atchison, Kansas, a difficulty occurred between him and the conductor. The testimony on both sides tended to show that plaintiff told the conductor he was going to Atchison and offered mileage tickets in payment of his fare; that the conductor informed him that he could not accept mileage to Atchison; that plaintiff then asked the amount of cash fare, and being told it was eighty-five cents, handed the conductor one dollar and the conductor gave him fifteen cents in change, and, while punching his receipt for the cash fare, remarked to plaintiff that he could take cash fare beyond Atchison, either in the direction of Kansas City or in the direction of Omaha; that thereupon plaintiff said he was going to Hiawatha, Kan., and told the conductor to take the mileage .to Hiawatha; that the conductor then handed plaintiff back his dollar and received from plaintiff his fifteen cents change, the plaintiff at the same time handing to the conductor his mileage book; that the conductor took from the book the fare to Hiawatha, being tickets representing seventy miles, that being the mileage fare from St. Joseph to Hiawatha, and cancelled the same and returned the book to plaintiff; that thereupon plaintiff asked the conductor how much mileage he had taken, and the "conductor replied seventy miles. Up to — 451 — this point there was no conflict in the evidence. Then there was testimony on the part of the plaintiff tending to prove that, upon being told by the conductor that he had taken seventy miles, the plaintiff said he did not want to go to Hiawatha, and demanded the return of his mileage in a rather resolute and determined way, at the same time rising to his feet, and that thereupon the conductor said, “0 — d d — n you, why didn’t you say so?” and knocked or pushed the plaintiff down in the seat, and that he and the porter choked him. There was a trial to a jury which resulted in judgment for plaintiff and defendant appealed. I. The plaintiff testified that after the porter had-choked him he said to the latter: “That’s a nice way to treat a passenger here,” and the former replied: ‘ ‘ That is my bread and butter, and I would do it again. ’ ’ The defendant contends that since this utterance of the porter was after the choking took place that it should have been excluded on its objection. One of the issues made by the pleadings was whether or not “for thirty ■or forty minutes after the assault the conductor, and porter, continued to insult, abuse and villify plaintiff with coarse, obscene, profane and insulting language. This testimony tended tO' prove an issuable fact in the -case, and besides, it was so 'clearly connected with the .assault itself as to be a part of the res gestae, and it was •therefore properly admissible. The general rule is, that the declarations to form .a part of the res gestae should be made contemporaneously, or nearly so, with the main event; yet, where there are any connecting circumstances between such ■event and the declarations, the latter, though made some time afterwards, may form a part of the res gestae. And it is sufficient if there is such connection between the declaration and event, that although the declaration is made some time after the event, it may be regárded, not as an historical narrative but as a verbal act forming a part of one transaction. Harriman v. Stowe, 57 — 452 — Mo. 93; Stoeckman v. Railroad, 15 Mo. App. 503. According to this rule, we think the testimony was properly admitted. II. • The witness Condon testified that “when the negro porter grabbed Shaefer (plaintiff) by the throat with both hands, everybody in the car was running to Shaefer’s rescue. When I got up there the negro let go Shaefer and stepped back and another big traveling man there said something to him about abusing Shaefer, and the ‘nigger’ threatened him that he would get treated similar if he didn’t keep his mouth shut. ’ ’ This, we think, was so closely connected with the assault as to> be a part of the res gestae. III. During the examination of witness Krieger the plaintiff’s counsel inquired of.him whether or not the conductor or porter used any boisterous, unseemly or insulting language to plaintiff. The witness answered that he heard some words mumbled but that he could not. tell what they were. It is sufficient to say that while the' inquiry was improper as •calling for the expression of a conclusion of the witness, yet, as the witness answered, in the negative the inquiry did not prejudice the defendant. The plaintiff was permitted to inquire of witness Condon whether or not he heard any cursing- or abusive language used, and if so to state by whom. The witness answered that he did. The defendant could have protected itself if it had cared to do so. by exercising its privilege of cross-examination. It could have asked the witness to state the language used, but -this, was not done. And if the opinion of the witness was. erroneous it was in the power of defendant by cross-examination to explode it by calling on him to state the language used by the conductor and porter. If the defendant failed to take this precaution he ought not to'be heard to complain of the action of the court. Besides, 'the evidence of the witness was somewhat cumulative and while the question by which it was brought out was not perhaps proper, we do not feel at liberty to reverse — 453 — the judgment on that account unless we could discover that prejudice resulted from the action of the court in permitting it to be answered. IV. The défendant objects that the court erred in permitting the plaintiff to testify that one Bendure told him about being influenced to testify in favor of the defendant. Upon examining the' record we do not find that any exception was preserved to the ruling of the court in permitting the plaintiff to testify as to the declarations of Bendure, and for that reason the alleged error can not be reviewed here. V. On cross-examination, plaintiff’s witness Krigbaum testified that after the encounter he noticed Shaefer’s collar and necktie were disarranged and that “I think that ivas probably the only injury plaintiff sustained in the scramble.” That part of the witness’s testimony which we have quoted and italicised was on motion of plaintiff excluded. The witness had already stated what he had seen and the quoted part of his testimony is no more than an expression of a conclusion deduced by him. This was a usurpation of the province of the jury and was properly stricken out. VI. The defendant inquired of several of the witnesses if they knew the reputation of the plaintiff’s witness, William Condon, for truth and veracity. After they had answered this question they were further asked if they knew what business he was engaged in, to which they answered: “In the saloon or ‘joint’ business.” The plaintiff objected to the question by which this answer was called out, and which objection was by the court .sustained. Under the rulings in this State a witness may be impeached not only by a general reputation as-to veracity, but the inquiry may extend to the general moral character or reputation of the witness. State v. Shields, 13 Mo. 236; State v. Hamilton, 55 Mo. 520; State v. Breeden, 58 Mo. 507; State v. Clinton, 67 Mo. 380; State v. Miller, 71 Mo. 590; State v. Patrick, 107 Mo. 147; State v. Grant, 79 Mo. l. c. 133. But evidence — 454 — as to specific acts is field inadmissible (1 Greenleaf Ev., sec. 461). Evidence of general moral character of the witness being admissible, it must follow that anything showing determination of that general moral character or reputation is also admissible. State v. Grant, supra. The inquiry in the present case did not extend to the general moral character or reputation of the witness. The veracity of a witness can not be impeached by inquiry as to specific acts of past delinquencies. State v. Gesell, 124 Mo. 531. And so evidence of specific and independent immoral acts is not admissible for the purpose of impeaching the credibility of a witness. Seymour v. Farrell, 51 Mo. 95; State v. Rogers, 108 Mo. 202; State v. Grant, supra; State v. Beaty, 25 Mo. App. 214. Evidence tending to show that the witness had been in the saloon business or liquor traffic is, under the rule to which we have referred, inadmissible for the purpose of impeaching his credibility. A - saloon-keeper or liquor-dealer may or may not be a credible person, but evidence of the fact that he is or has been such can not be received to impeach his credibility, so we do not think the ruling of the court was erroneous. VII. The court rejected the defendant’s offers of evidence to prove the disposition and characteristics of plaintiff: that is to say, that he was excitable, impulsive and was accustomed, on the slightest provocation, to use profane language. The plaintiff in answer to questions asked him by defendant on. cross-examination stated that at the time of the difficulty he did not use profane language and that he was a Christian, but not better than any other man, but as good as the average man. We do not think the proffered evidence was competent to discredit that given by-plaintiff. It was clearly irrelevant. VIII. The plaintiff’s first instruction correctly-expressed the law applicable to the ease. Malecek v. Railroad, 57 Mo. 18; Farber v. Railroad, 116 Mo. l. c. 91. And defendant’s second and third were rightfully — 455 — refused. It is manifest from the unobjected-to testimony of the plaintiff that the casus belli was the detachment by the defendant’s conductor of more mileage than the former thought the latter had a right to. This was a fact for the jury to consider along with the other facts in evidence. It is true that the defendant, near the close of the cross-examination of its conductor, objected that it was immaterial as to the mileage “pulled” by the conductor, but the evidence relating to it had previously been elicited without objection, and the objection then made did not reach it. Such evidence was therefore before the jury and the defendant’s instruction excluding it was rightfully refused. Ring v. Railroad, 14 Mo. App. 579; Drehman v. Stifel, 41 Mo. l. c. 184. Such evidence was a part of the res gestae and should have been admitted on that ground. IX. The defendant insists that the verdict is so clearly against the evidence that it is apparent that the jurors must have' been prejudicially influenced against it by the admission of the evidence of which it has complained. It must be conceded that the evidence is so conflicting as to render it utterly impossible to reconcile it. If credence is given to plaintiff’s evidence, then the conclusion is irresistible that the assault was not only committed upon plaintiff by the defendant’s conductor and negro porter, but that it was of the most flagrant and aggravated character, fully justifying the verdict; and on the other hand, that adduced by defendant is such as to create a doubt as to the justice and propriety of the verdict. But there has already been .three jury trials of the cause with a like result in each. In view of this, we would not feel justified in overthrowing the verdict on the ground that it was the result of prejudice engendered in the minds of the jury by the admission of the objected-to evidence. We can not but think that if all the evidence to which defendant made objection were out of the case, the result would have been the same. — 456 — X. In the verdict the amount was expressed in numerals and words thus: “at the sum of $750, seven hundred dollars.”' The plaintiff remitted fifty dollars and judgment was thereupon given for seven hundred dollars. No reason is seen why the rule to the effect that where there is a, variation between amounts expressed in numerals and words in a written instrument, the written words must prevail over the numerals, should not apply to a verdict in a case like this. Bank v. Pipkin, 66 Mo. App. 597. By the application of this rule the numerals bécome eliminated from the verdict, leaving it unexceptionable in expression. •The judgment is accordingly affirmed. All concur.