Opinion
No. 27804.
March 25, 1929.
1. WITNESSES. Permitting cross-examination of plaintiff regarding character of defendant's deceased president, which had not been attacked, held error.
Permitting cross-examination of plaintiff regarding character of defendant's deceased president, who had written letter denying liability to plaintiff, held error, where no attack had been made upon deceased's character.
2. TRIAL. Instruction that, where defendant's agent making oral contract is dead, defendant may put before jury every circumstance showing contract never existed, held erroneous because calculated to make jury give undue weight to deceased's letter denying liability.
In action by employee for bonus claimed under oral contract, instruction that, where defendant is precluded from testimony of its agent making oral contract by his death, it is defendant's privilege to put before jury every fact and circumstance having tendency to show contract sued on never existed, held calculated to prejudice jury to decide that unusual importance was to be attached to dead man's letter denying liability to plaintiff, and was erroneous as tending to trench upon weight of evidence.
3. TRIAL. Weight of evidence is for jury.
Weight of evidence is exclusively for the jury.
APPEAL from circuit court of Sunflower county, HON. S.F. DAVIS, Judge.
B.B. Allen, for appellant.
Dever Gilmer was president of the appellee corporation, and was dead at the time of the trial in the court below, and he appeared as a witness in the form of a letter he had written prior to his death. His reputation for paying his debts was not an issue, nor was his reputation for truth and veracity attacked in any manner by the appellant, this being a suit against a corporation in whose employ Dever Gilmer was. And it was highly prejudicial to permit the bolstering up of his character in any manner; first because the suit was not against him, and second because at most he was only a witness, and as such unassailed. 40 Cyc. 2784; Hayes v. Wabash R.R. Co., 163 Mich. 174, 128 N.W. 217, 31 L.R.A. (N.S.) 229; Hughes on Evidence, page 43; Martino v. State, 98 Miss. 355, 53 So. 777; Clark v. State, 9 So. 820; Brewer v. Mullins, 97 Miss. 353, 52 So. 257. In the case at bar our witness, the plaintiff himself, was forced to state, over the objection of his attorney, that Dever Gilmer was always found carrying out his promises, and that he, the said Dever Gilmer, "was a mighty good man." The facts in the Brewer case, supra, were not half so objectionable on this point, as were the facts in the case at bar. In neither case had the reputation or character of the witness (Gilmer) been assailed directly or indirectly.
Instruction No. 3 for defendant tells the jury that where the defendant "is precluded from the testimony of the agent of the defendant making the oral contract by his death, it is the right and privilege of the defendant to put before the jury every fact and circumstance which has a tendency to show that the contract sued on never existed." This instruction is bad, because there are no facts or circumstances surrounding the making of this contract sufficient to overcome or negative positive evidence. It gives undue attention to the death of a witness they hoped to have used, but who died in the meantime.
Forrest G. Cooper, for appellee.
When the plaintiff testified that Dever Gilmer had broken his word and promise to him and the credibility of the plaintiff as a witness was under review in cross-examination, he was asked the simple question, as to whether or not Dever Gilmer had kept his promises to him to test his credibility. On cross-examination this was proper. The purpose of the question to the plaintiff was essentially to show the bias of the witness as plaintiff. The cross-examiner merely took a chance in asking a chance question to test the credibility and bias of the witness. With the wide latitude allowed in those classes of cases where the death of one alleged contracting party prevents his testifying and at the same time with the wide latitude allowed in the cross-examination of witnesses and particularly of the cross-examination of a party litigant, the wise rule laid down in 5 Jones on Evidence, sec. 832, is peculiarly applicable to the cross-examination of Mohead. We quote: "There is a class of decisions in this country which adopt the view that great liberality should be allowed in the cross-examination of witnesses even on immaterial matters, provided they tend to affect the credit of the witnesses, and in this class of decisions it is held that questions going to the credit of a witness, the answers to which will reasonably lead the tribunal to say "when the witness has admitted these facts we distrust his testimony" may be asked of him. In support of this view it is contended that the jury should understand the character of the person on whose testimony they are acting, and that the value of cross-examination, the most important test of truth, should not be sacrificed to the feelings of the witness. The facts so drawn out on cross-examination, though entirely immaterial to the question at issue, are only admissible upon the ground, that as their usual, if not necessary concomitant is a depraved moral standard, the evidence given by the witness, which is pertinent to the issue, is less reliable, and when weighed against other evidence in the case, the jury might be justified in disregarding it altogether." Brewer v. Mullins, 97 Miss. 353, 52 So. 257, was a replevin suit in which the identity and ownership of a mule was in question. A third party was a witness for one side and the attorney for the other side asked this witness if Mullins, the defendant was not a truthful man. Judge ANDERSON in rendering the opinion for the court held that the testimony in this case was so evenly balanced that the question and answer had influential weight with the jury. This is not the case here on appeal. In our case Mohead himself was on the witness stand. Mohead swore that he had made an agreement with a man who was dead and under the wide latitude allowed in that kind of case where the testimony of Mr. Gilmer was impossible and where the credibility and bias and prejudice of Mohead was a vital issue, the question and answer in our case was proper.
In the circuit court, Mohead, the appellant, sued Gilmer Grocery Company, the appellee, for five hundred fifty-five dollars and thirty cents for accrued bonus of fifty cents a bale for cotton ginned during the ginning season of 1925 and 1926 in excess of two thousand bales. The appellant's evidence was to the effect that an oral contract was made with Gilmer, the president of Gilmer Grocery Company, for the season of 1925-26 for the personal service of Mohead as gin manager at a salary of one hundred seventy-five dollars a month and fifty cents per bale for each bale of cotton ginned in excess of two thousand bales.
Sims, the gin superintendent and agent of appellee, claimed that he himself made the oral contract with the appellant, Mohead, and that his term of employment was to expire on January 1st, and that during the month of January he made a new contract with Mohead by which Mohead was to receive one hundred seventy-five dollars and no bonus on and after February 1, 1926, during that ginning season. Before the suit was brought, Gilmer, the president of the corporation, wrote a letter to Mohead, the appellant, in which he stated that the gin company did not owe the appellant a penny. This letter was written in September. Gilmer died about the first of November, and the suit was brought the following year. The first suit brought was for the same amount, but the figures going to make up the account and show the balance were entirely different. A nonsuit was taken by the plaintiff at that time. This was a suit upon an oral contract, and the main testimony was delivered by Mohead on the one hand and Sims on the other, with the letter of the dead president in aid of the defense made by the gin company. Several errors are assigned, but we shall only notice two.
1. On cross-examination, Mohead, the plaintiff, was asked the following questions, to which he made the replies herein set forth, to-wit:
"Q. You had known Dever Gilmer some time prior to his death? A. Yes, sir, just a little over two years.
"Q. You had always found Dever carrying out his promises to you? A. Yes, sir.
"Mr. Allen: We object to his trying to qualify a dead witness. We object to that. We object to that line of examination. It has no bearing on this case.
"Court: Overruled and exception by plaintiff.
"Q. Hadn't you always found that Dever carried out his word to you? A. He always had.
"Q. The fact of the business is, you believe Dever was the soul of honor. A. He was a mighty good man."
It will be remembered that Dever Gilmer had written a letter denying liability addressed to Mohead, the appellant, and before the trial of this case and subsequent to writing the letter he died, and the letter was admitted in evidence.
This line of cross-examination is not permissible. A plaintiff may not bolster up a dead witness' reputation and character for fair business dealing or "making his word good," or similar statements. While wide latitude is allowed in cross-examination, these questions propounded to a truthful witness were to put him at a disadvantage, whether he attacked the character of the witness or sustained it for the particular quality then sought to be established. This line of examination has been condemned in the case of Brewer v. Mullins, 97 Miss. 353, 52 So. 257, wherein Judge ANDERSON said: "The court erred in permitting testimony to uphold the character of the witness Mullins for truth and veracity, when it had not been directly assailed. It was not an issue before the jury, and could not be made one, except by his adversary attacking it in the manner laid down by law. The issue of fact before the jury seems to have been about evenly balanced. Under these circumstantial, such testimony probably had influential weight with the jury. Reversed and remanded."
The case at bar was a close case. The evidence was in sharp conflict, and to require the plaintiff to testify as to the character of the dead witness, Gilmer, was error in view of the fact that no attack had been made upon his character. This had influential weight with the jury.
At the instance of the defendant the court gave instruction No. 3, which is as follows: "The court instructs the jury for the defendant that where the making of an oral contract is denied, and the defendant is precluded from the testimony of the agent of the defendant making the oral contract by his death, it is the right and privilege of the defendant to put before the jury every fact and circumstance which has a tendency to show that the contract sued on never existed, and if you believe from all the facts and circumstances that the defendant never agreed to pay any bonus beyond what the testimony shows it paid, then you should find for the defendant."
We do not think this instruction had any place in this record, and we think it was calculated to prejudice the jury to decide that some undue and unusual importance was to be attached to the letter of the dead man, and in a measure tends to trench upon the weight of evidence, which is exclusively for the jury.
For the giving of this instruction and permitting the cross-examination of the appellant as to the character of the deceased president, we think this case should be reversed and another trial of it had.
Reversed and remanded.