Gourley v. Callahan

NORTONI, J.

Defendant prosecutes this appeal from an order of the court setting aside a verdict in his favor and awarding plaintiff a new trial.

Plaintiff, a young girl about seventeen years of age, prosecutes the suit through her father, as next friend, for damages alleged to have accrued to her on account of an assault by defendant.

A trial was had before a jury, with the result that the finding and verdict were in favor of defendant. Thereupon plaintiff filed a motion for a new trial and this motion the court sustained. It appears that, during the cross-examination of defendant, while he was on the witness stand, plaintiff’s counsel interrogated him with respect to alleged misconduct toward another young girl in the neighborhood, and thereafter defendant placed two witnesses — that is, character witnesses —on the stand, who testified to the effect that his general reputation was in all respects good. Because of the admission of this evidence on the part of defendant, the court subsequently set the verdict in favor of defendant aside on. the fourth and fifth grounds assigned in plaintiff’s motion for a new trial. The fourth and fifth specification of grounds in the motion for a new trial and on which the verdict was set aside are as follows :

*670 “Fourth. The court erred in admitting improper testimony adduced by defendant.”

“Fifth. The court erred in admitting improper testimony adduced by the defendant as to the character and reputation of the defendant. ’ ’

From an inspection of the record, it is obvious that no other evidence adduced by defendant than that above referred to may in any view be regarded as improper. It is, therefore, clear that the new trial was granted to plaintiff and the verdict-in favor of defendant set aside because the court entertained the view that it was incompetent for defendant to introduce character evidence — that is, evidence tending to support his general reputation as a good citizen.

No one can doubt that in civil actions the character of neither party, unless assailed, can be inquired into, if not put in issue in the nature of the proceedings [See Gutzwiller v. Lackman, 23 Mo. 168 .] It is said, too, that the character of a party to a civil suit is only put in issue in the class of cases, such as libel, slander, malicious prosecution, etc., in which evidence of good character is to be considered in assessing damages. [See Black v. Epstein, 221 Mo. 286, 304, 305, 120 , S. W. 704; Vawter v. Hultz, 112 Mo. 633, 639 , 20 S. W. 689 .] If, however, in the trial of a civil suit where the character of a party is not in question by the nature of the proceedings, the adverse party raises the issue in respect of it by assaulting the character of his adversary, it then becomes competent for such party so attacked to bring forward character witnesses to sustain his good repute. [See Ross v. Grand Pants Co., 170 Mo. App. 291 , 156 S. W. 92 ; State v. Speritus, 191 Mo. 24, 34, 35, 36 , 90 S. W. 459 .] It was in this view that defendant introduced the evidence of two witnesses tending to show his good character, in that he enjoyed a good reputation in the neighborhood where he resided, for plaintiff seemed to assail him by the imputation of *671 wrong-doing in the cross-examination of defendant when he was on the stand.

The questions propounded to defendant during his cross-examination by plaintiff and his answers thereto touching this matter are as follows: “Q, Now, Mr. Callahan, I will ask you if you didn’t make an effort to violate another girl in that neighborhood and who lived near you, named Miss Bessie Seath? A. I never heard of that name. Q. "Well, what was her name? A. I don’t know; I don’t know anybody by that name. Q. Is that correct? A. That is correct.” Plaintiff’s counsel, having propounded these questions to defendant while on the stand and during his cross-examination, defendant introduced the character evidence above referred to, and, as before stated, the court subsequently set the verdict aside because such character evidence was received in support of defendant’s good repute.

It is urged that the answers of defendant to the questions above propounded are so ambiguous, indefinite and uncertain as to amount to nothing whatever tending to impeach the character of defendant so as to authorize him to rebut it. It is true the answers are indefinite, in that they neither admit nor deny the charge suggested in the principal question that he had violated a young girl in the neighborhood. But though such be true, when all of the questions and answers are considered together, they impart a suggestion that defendant was probably evading a direct answer to the inquiry as if he did not feel entirely free to speak upon it. However, it is not essential that the defendant shall confess his guilt when thus interrogated on cross-examination, if the questions propounded be of such character as to impute a suggestion of wrong-doing on his part. In such circumstances, it is competent for defendant to bring forth witnesses in his own behalf to sustain his character and thus re *672 fute the imputation of immorality cast as a cloud upon him.

Touching this matter, the Supreme Court of North Carolina has said: “Where an imputation against the character of a witness is made by the very question which is put to him, evidence in support of that character becomes competent.” [See The State v. Cherry, 63 N. C. 493 .]

So, too,.the principle has been extended quite beyond this by the Supreme Judicial Court of Massachusetts, for that tribunal has declared that an attempt to impeach a witness, by asking another witness what was his character for truth, warrants the introduction of evidence to support his character, although the answer to the question propounded to the witness in the first instance was that the character of the witness so sought to be impeached was good. [See Commonwealth v. Ingraham, 7 Gray (Mass.) 46 .]

It appears, therefore, that though defendant neither admitted nor denied in pointed fashion the implication of wrongdoing with respect to Bessie Seath, but answered only that he did not know one of that name, the imputation of immoral conduct conveyed in the question itself was sufficient to constitute an attack on — that is, draw — his character in issue, and rendered competent evidence in his behalf of good repute, to the end of removing the cloud cast upon him by plaintiff. The court, therefore, did not err in admitting such evidence adduced by defendant.

The order granting a new trial to plaintiff is reversed and the cause remanded with directions to reinstate the verdict and enter judgment thereon for defendant. It is so ordered.

Reynolds, P. J., concurs. Allen, J., dissents on the ground that the question asked defendant in cross-examination, though incompetent, was insufficient, in itself, as an attack upon defendant’s character, under the circumstances, to au- *673 thorize the introduction of testimony in support of Ms character for morality and decency.