The plaintiff alleged that Matri, the guard who fired the shot which wounded the plaintiff, "was not a man qualified or fit to be armed with a dangerous weapon and to act as guard at the reservoir." This allegation the defendant denied. Upon this issue the defendant produced testimony by Matri that he had had some training in the use of firearms and knew how to handle them properly. Thereafter the plaintiff offered the testimony of McNamara for the purpose of showing, as stated in the opinion of the majority of this court, that Matri was "unfit to act as a guard"; or, as stated by counsel who presented the testimony, to show "his qualification as a guard."
I think this testimony was admissible for such purposes. Whatever bearing it might or might not have upon the general character of Matri, or upon any single trait of his character, it seems to me it had a direct and very forcible bearing upon the important matter in question. It tended to show that he had not had the training he claimed to have had, or that in spite of any training he had had, Matri did not then know how to handle a dangerous weapon properly, and that lack of training and knowledge made him unfit or unqualified for the duty the defendant had employed him to perform. In the opinion of the majority, McNamara's testimony is said to be "a species of character evidence." It seems to me that it should not be restricted as character evidence. Matri's mental qualifications, disposition, temper, and judgment may have been unquestionable, and yet, if he did not know and practice the proper use of firearms, he was unfit and unqualified to act as guard armed with a loaded rifle. *Page 602 His fitness and qualifications of that kind were in dispute, and it is conceded that McNamara's testimony was introduced for the purpose of showing that Matri was unfit and unqualified in that respect. Matri's conduct would indicate convincingly whether he had the training, knowledge and practice to fit him "to act as a guard" armed as he was by the defendant. That conduct, of course, must be judged in view of the circumstances. The record discloses that McNamara was inoffensive and had given no cause for suspicion. He had promptly obeyed Matri's order to stop his automobile, had answered Matri's questions civilly and reasonably, and was trying to turn his car to go away from the reservoir. Then Matri advanced closer, raised his loaded gun to his shoulder, and pointed it at McNamara, with the muzzle within four or five feet of his face, and, holding the weapon in that position some minutes, declared that he had a mind to blow out the brains of this unarmed and peaceable citizen. It seems to me that was the conduct of a man who was "unfit to act as a guard" anywhere, at any time, and that, no matter what Matri's character or disposition was, it demonstrated that he was not qualified by training and knowledge to handle a dangerous weapon properly.
The exclusion of the testimony of the witness Burnap, as to finding some empty cartridge shells on the reservoir shortly after the plaintiff was wounded, appears to me to have been justifiable and harmless. In the first place, I think the record shows that Matri had not testified definitely where he was when he fired each of the shots. He had said that he fired three shots while he was walking from near the center of the dam toward the approaching automobile; one, when it was one hundred and fifty feet from the dam, one when it was fifty feet from the dam, and the third when it was *Page 603 on the dam. He thus fixed the locality of the automobile, but not precisely where he was, when he fired any of the three shots. This testimony was brought in by the plaintiff in Matri's direct examination, was repeated and confirmed in his cross-examination at the suggestion of the defendant, and was undisputed. In such a state of this testimony, it hardly seems that any corroboration by the defendant was necessary or profitable. But corroboration was the only purpose for which it was claimed.
But I think it was quite immaterial where Matri stood when he fired any of the shots, which all the witnesses agreed that he fired. The plaintiff and two other witnesses testified that the first shot was the one that took effect, and that the others were fired while the automobile was going away from the dam. On the other hand, Matri claimed that the first two shots were warning shots, fired in the air, and only the third shot was aimed toward the automobile. The plaintiff's testimony was intended to show that Matri was reckless or negligent; Matri's testimony was calculated to prove that he was cautious and reasonable. In considering these conflicting claims, it does not appear that the jury could get any help from knowing exactly where Matri was when he fired any shot. It was admitted that he was on the dam when he saw the automobile approaching from about one hundred and fifty feet from the dam, and that while walking toward the approaching automobile, he fired all three shots within that short range. What the jury should have been concerned in deciding was which of these shots was the aimed shot; that is, whether in fact Matri fired first two warning shots. His precise location within the limits and circumstances he had explained were entirely insignificant. Moreover, the record shows that the rifle Matri was carrying was one from *Page 604 which each used shell was ejected by pulling down a lever; but the record does not contain any evidence tending to show that Matri extracted each shell on the spot where he fired each shot, or that he did not walk some distance from that spot before he threw out the empty shell and reloaded his gun. It seems to me that the material matter in question was not exactly or approximately where Matri stood when he fired any of the three shots, but which one of the shots he aimed toward the automobile; and that to this matter the offered testimony was irrelevant and immaterial and its exclusion harmless. And it seems the more so because Matri's statements concerning his locality were admitted to be true, and any attempt to corroborate them, even if it were practicable and desirable to do so, would be superfluous.
I do not disagree with any statement of law contained in the opinion of the majority of this court, but I am constrained to dissent from its application to the conditions of this case. I do not think the rulings of the trial court which are found erroneous fall within the limits of the law defined in their opinion. For the reasons I have already stated, those rulings appear to me to be justifiable or harmless, and therefore to give no cause for a new trial. *Page 605