Imboden v. Union Trust Co.

BLAND, P. J. (after stating the facts). — 1. The circuit court, on defendant’s motion, struck out the stipulation filed with the depositions taken while the case was pending in the probate court, on evidence introduced in support of the motion, showing that the stipulation filed with the depositions was not the stipulation signed by defendant’s counsel; that the one signed by counsel did not waive the plaintiff’s competency as a witness. In respect to the other point, that plaintiff’s competency was waived by defendant going • beyond the scope of her direct examination in its crossr examination, at the time her deposition was taken, Ave have carefully read the whole of plaintiff’s deposition, direct, cross and redirect examination, and fail to see Avherein defendant Avent beyond the range of her examination in chief in its cross-examination; no new matter was elicited Avhereby it can be reasonably said defendant .made plaintiff its OAvn witness and thereby waived its objection to her competency. 2. Imboden’s daughter is the sole legatee under his AA'ill and the property devised to her is, under our statutes, her sole and separate property. Her husband, Dr. Parrish, has only a contingent interest in the estate and Avas not a competent witness by reason of any interest he had in the matter in controversy, or in the estate of Imboden, and was therefore not competent to testify in behalf of his Avife. [1 Greenleaf on Evidence, sec. 341; 30 Am. and Eng. Ency. Law (2 Ed.), 942; Swift v. Martin, 19 Mo. App. 488.] 3. The character of some of plaintiff’s witnesses [572] was impeached for immorality and integrity. Prior to the case of State v. Pollard, 174 Mo. 607, 74 S. W. 969, the rule in this State was, that a witness might be impeached by evidence of bad moral character as well as by evidence of bad character for truth and veracity. The Pollard case holds that the rule, that a witness may be impeached by showing his bad moral character, is opposed to the current of authority and that the impeachment- should be confined to general reputation for truth and veracity and to such traits of character as are involved in the issues of the ease. 4. Objections were made to the evidence showing that Imboden,- after his alleged contract of marriage with plaintiff, declared himself to be a single man. The Same objection was made when the case was here on the former appeal. We held then that declarations of members of a family in respect to marriages, births and deaths were admissible. Plaintiff claims Imboden was a member of her family; that she was his wife and that he maintained her family and spent a great deal of his time at her home, and thereby laid a foundation for the introduction of this character of evidence. [Imboden v. Trust Co., 111 Mo. App. l. c. 234, 86 S. W. 263.] 5. Error is assigned in the refusal of the court to hear evidence of the general character of Sergeant Pierce for truth and veracity. Proof of Pierce’s good character would not tend to explain a statement made out of court, contradictory to his evidence as given in court, yet, as Professor Greenleaf says, “His (the witness) general character for truth being thus in some sort put in issue, it has been deemed reasonable to admit general evidence, that he is a man of strict integrity, and scrupulous regard for truth.’’ [1 Greenleaf on Evidence, sec. 469.] The Missouri cases seem to follow Greenleaf, though in many States such evidence is held incompetent. 6. Sergeant Pierce’s evidence on the last trial dif [573] fered, in some respects, from his evidence as given on the first one, and parts of his evidence were read from the hill of exceptions filed on the first trial, for the purpose of showing these contradictions. Plaintiff then offered to read the whole of his evidence, as preserved in the bill of exceptions. The court, on objections: by defendant, refused the offer. This ruling is assigned as error. The evidence given on the former trial is not in the abstracts and we cannot tell whether the offered evidence would or would not have explained the contradictions. Of course, plaintiff had a right to read from the bill of exceptions, any part of Pierce’s evidence, which explained, or tended to explain, the contradictions, and to read the whole of it, if necessary, for this purpose, but she had no right to read it all merely because a part of it ivas read by defendant for purposes of impeachment. 7. Error is assigned in the refusal of the court to admit all of plaintiff’s letters to Imboden. The argument made if we properly understand it, is that the' letters were a part of the res gestae of the transaction, that is, of the continuous relation of plaintiff with Imboden, and tend to prove that status and. how Imboden and plaintiff regarded their relation. That might be true if Imboden’s letters to plaintiff had been also offered in connection with hers to him, but they were not. The letters offered by defendant were offered on the theory that they contained admissions against interest and were admissible on that ground. Besides, we are unable to see how the excluded letters would have benefitted plaintiff’s case had they been read in evidence. 8. Evidence of the character of the Hurst Hotel Junior was inadmissible; evidence of the character of persons who visited it was admissible. 9. In the instructions, the court confined the proof of marriage to July 27, 1898, and instructed the [574] jury, in effect, that unless they found from the evidence that plaintiff and Imboden, on July 27, 1898, agreed with each other then and there to be husband and wife, they- should find for defendant. A common law marriage may be shown bv express contract, or by proof of cohabitation as man and wife, and general repute. There is no evidence that plaintiff and Imboden were reputed to be man and wife; no evidence that they continuously cohabited together as man and wife; it is to the contrary. On the first trial, plaintiff’s mother was a witness and testified the contract was entered into, in her presence, at her home, on July 27, 1898. She was not a witness at the last trial, and the date of the contract of marriage was fixed by Sergeant Pierce, as July 27, 1898. Plaintiff’s theory throughout this controversy has been that she and Imboden expressly agreed, on July 27, 1898, to be man and wife, and unless there was an express contract made at that date, or at some other date, between them to be man and wife, plaintiff -had no case. There is no evidence that the contract, if made, was made on any other date than July 27, 1898, hence there was no error in confining thé contract to that date. All the other evidence in respect to the marriage was but circumstantial, and admissible for the reason it tended to corroborate the theory of plaintiff’s case, that is, that there was an express contract between her and Imboden to be man and wife, made and entered into on July 27, 1898. 10. In respect to the remarks of the learned trial judge, in the presence and hearing of the jury, of the probative force of certain evidence plaintiff was offering, and which was afterward admitted, we will say they were improper, for the reason they were calculated -to influence the jury to disregard the offered testimony and look with suspicion upon all plaintiff’s evidence of a similar character. The case was in court on no formal pleadings. The court was in the dark as to the [575] issues, and, in the multitude of counsel representing both sides, and in something of a wrangle about the course which should be pursued in the introduction of evidence, the learned trial judge doubtless became confused and irritated and unwittingly made the remarks attributed to him, yet they were improper under any circumstances and should not have been made. 11. Should the case be reversed and the cause sent back for a new trial on account of the errors noted? We think not. Plaintiff’s case is a very weak one, barely sufficient to warrant its submission to a jury. The probate court and two juries have found she is not the widow of Imboden, and it is not at all probable —barely possible — that a third jury would reverse these findings. We are of opinion the judgment is for the light party and ought to be affirmed, notwithstanding the errors noted. The judgment is affirmed. Nortoni, J._, concurs in the result, Goode} J., not sitting.