Owens v. White

28 Ala. 413

• Court: Supreme Court of Alabama
• Decided: January 15, 1856
• Status: Published

Opinion

RICE, C. J.

In civil cases, evidence of the general character of a party is not admissible, except in certain actions, the very nature of which, as disclosed by the proceedings, amounts to notice that the character of the parties, or some of them, is of particular importance; such as actions for slander, criminal conversation, and breach of marriage -contract. — Ward v. Herndon, 5 Porter’s Rep. 382; Pearsall v. McCartney, at the present term; Rhodes v. Ijames, 7 Ala. R. 574; Anderson v. Long, 10 Serg. & Rawle, 55; 1 Greenlf. on Ev. § 54, et seq.

In an action of assumpsit, where the declaration contained only the common counts, the facts that the plaintiff had, under our statute, made herself a witness to prove her own account, ■ — that the defendant, under the same statute, had made himself a witness to contradict her testimony in some particulars; and that he had introduced the testimony of a disinterested' witness, showing “ some conversations of the plaintiff, as to the terms on which she was living with the defendant, who was a tavern-keeper in the city of Montgomery, which contradicted the plaintiff’s testimony given on the trial in some particulars,” — will not authorize her to prove her good character, by the declarations of the defendant, or in any other mode. The plaintiff’s character was not put in issue by the pleadings, nor by the evidence for the defendant. It was her claim, or cause of action, and not her character, that was assailed by the evidence for the defendant. — See the authorities above cited, and 1 Greenlf. on Bv. § 55.

It does not appear that she was asked, on her cross-exam ination, whether she had not had the conversations testified to by the witness for the defendant. Her own conversations, in relation to the matter in controversy, were» original and proper evidence against her, whether she made herself a witness or not. Her own voluntary act, in' making herself a witness, could not create in her the right to prove her good character after her conversations were proved; when it is clear she would not have had such right, if she had not been examined as a witness.

If, instead of making herself a witness, she had proved by a disinterested witness the same facts which she proved by her own oath, and the defendant had thereupon merely introduced evidence of her conversations,, which contradicted the testimony of her witness, this, of itself, would not have authorized her to prove the good character of her witness; and she certainly cannot stand on higher and better, ground than her witness would occupy.

The court below erred in admitting the evidence of her good character; and for that error, its judgment is reversed, and the cause remanded.