Pierce Loan Co. v. Killian

CAULFIELD, J. (after stating the facts). — I. Plaintiff first contends that the evidence was sufficient to make it incumbent upon the trial court to find in its favor, and that we should review the evidence, reverse the judgment and direct a finding and judgment for plaintiff for the full amount of its claim. We are unable to agree to this contention. Even though the evidence offered upon behalf of the plaintiff was not controverted by words, still its weight, dependent upon the credibility of the witnesses, which might be determined by their manner and demeanor while testifying, was for the trier of the facts, whose finding — this being an action at law and there being nothing to indicate that he acted arbitrarily, under tbe influence of passion or prejudice — is binding upon us. The evidence may be all one way, yet it is for the trier of the facts to say whether he believes the witnesses or not. [Gannon v. Laclede Gaslight Co., 145 Mo. 502, 515, 46 S. W. 968, 47 S. W. 907; Hunter v. Wethington, 205 Mo. 284, 293, 103 S. W. 543; Connelly v. Railroad, 133 Mo. App. 310, 316, 113 S. W. 233; Dodd v. Guiseffi, 100 Mo. App. 311, 315, 73 S. W. 304; Chinn v. Railway, 100 Mo. App. 576, 584, 75 S. W. 375; Hugumin v. Hinds, 97 [112] Mo. App. 346, 352, 71 S. W. 479; City of Poplar Bluff v. Hill, 92 Mo. App. 17, 19.] This is not a case where it is apparent that there was no serious and real dispute as to the credibility of the witnesses testifying nor as to the existence of the facts to which they gave testimony. It is not a .case where the essential facts were conceded. There is not present even the significance that might attach to the defendant, not testifying, this action being against the administratrix. Not only by vigorous cross-examina-. tion and objecting to questions, but by controverting part of the testimony and even attempting to impeach witness Geist by proof of contrary statements out of court, did defendant’s counsel repel any implication that facts or credibility of witness were conceded. Plaintiff’s first contention we. rule against it. II. Upon the promise of defendant’s counsel to certainly make its relevancy appear later in the case, the court permitted him to show upon his cross-examination of Geist that about the same time deceased purchased a diamond stud for $630 charged for in the account, one Jessie Ross had purchased a diamond ring at about the same price, and to ask Geist whether in the probate court he had not identified a receipted bill given to Jessie Ross which showed that a diamond “stud” had been purchased by Jessie Ross for $630 and had been paid for by her by eight installments, corresponding in amounts and dates with eight credits shown on Killian’s account. Geist denied having so identified such a receipt. Defendant then, still proceeding we assume upon the faith of the promise to show its relevancy, showed by a witness that .in the probate court Geist had identified said receipt and that said receipt (which had since been lost or mislaid) did disclose the coincidences of amounts And dates mentioned. ' The relevancy of this testimony was not in any [113] manner made to appear. Nor have we been able to discover it. The defendant at the close of the whole case moved that all evidence as to this irrelevant transaction be stricken out. The court overruled the motion. This was error. The plaintiff had a right to have said irrelevant evidence stricken out. [Gage v. Averill, 57 Mo. App. 111, 117.] If the court had admitted the evidence upon the promise to connect it by later evidence and no motion to strike out had been made, then, it might have been assumed, as was done in the last cited case, Gage v. Averill, that ’ there was nothing involved but the order of proof as to which the trial court had discretion, and that having no probative force the trial court did not allow this evidence to influence its finding. But here the court, at the close of the evidence, on the very verge of making its finding, overruled the motion to strike out, thereby indicating in a most striking manner that it considered the evidence arrived at as having probative force. This irrelevant evidence was erroneously used to impeach the credibility of plaintiff’s most important witness. [Harper v. Railroad, 47 Mo. 567, 581.] Upon the record before us the credibility of the witnesses was practically the only question for the trial court to determine, and what influenced it in that regard was most important. And we cannot escape the conclusion, based upon.its action in overruling plaintiff’s motion, that it was influenced in its finding by this incompetent evidence. We therefore hold said action to be reversible error. [McDonald v. Matney, 82 Mo. 358, 366.] III. We also rule (assuming that Geist was incompetent), that by extending the cross-examination of plaintiff’s witness Geist beyond the. scope of what the witness was competent to testify to upon direct [114] examination, as it is apparent from the foregoing she did, defendant waived the witness’ incompetencv and he became a competent witness for all the purposes of the case, and the court erred in refusing to permit plaintiff upon re-direct examination to examine him as to the transactions he had Avith the deceased. [Ables v. Ackley, 126 Mo. App. 84, 87, 103 S. W. 974; Imboden v. Trust Co., 111 Mo. App. 230, 232, 86 S. W. 263; McCune v. Goodwillie, 204 Mo. 306, 332, 102 S. W. 997; Borgess Inv. Co. v. Vette, 142 Mo. 560, 571, 44 S. W. 754; Rice v. Waddill, 168 Mo. 99, 120, 67 S. W. 605.] For the errors above noted the judgment is reversed and cause remanded. Reynolds, P. and Nortoni, Jconcur.