56 Neb. 698 | Neb. | 1898
Prior to September, 1893, William Barr owned a brick block in the city of Lincoln. In the upper story of this block were a number of lodging rooms. Barr employed Mrs. Martha A. Post to attend to these rooms and keep them in order. She and her family, it appears, occupied a room in the block. S'he was intrusted with the keys to the various lodging rooms. For some reason her services became unsatisfactory to Barr, and he discharged her. She, however, refused to surrender to Barr, on his demand, the keys for the various lodging rooms. On September 6, of said year, Barr attempted to take his keys out of the hands of Mrs. Post. This, however, it seems he failed to accomplish. Mrs. Post brought the present .action in the district court of Lancaster county against Barr to recover damages for an alleged assault and battery inflicted upon her by Barr at the time he attempted to take from her possession the lodging keys. She had judgment, and Barr has brought the same here for'review on error.
1. On the trial the district court refused to instruct the jury at the request of Barr that he had the right to take possession of these keys from Mrs. Post, provided in doing so he did not use any more force than was actually necessary for that purpose, nor thereby commit a breach
2. The next complaint relates to instruction number 6 given by the court. It is as follows: “You should take into consideration the pain and suffering, bodily and mentally, endured by the plaintiff; also any permanent internal injury, if any such has been shown by the evidence, such pain or injury being caused by the wrongful act of the defendant.” Counsel for the plaintiff in error insist that the giving of this instruction was erroneous, because the record contains no evidence that Mrs. Post had sustained any permanent internal injury as the result of the alleged assault and battery. The evidence on behalf of Mrs. Post tended to show that soon after this alleged assault and battery she suffered a miscarriage, and that this was the result of the battery inflicted upon her by Barr; that about a year after this time she was in a condition of “tubal pregnancy” or “extra-uterine pregnancy;” that an operation was performed upon her at this time and a foetus removed. ' Physicians called
3. On the trial of the case counsel for Mrs. Post called her husband as a witness, and at the time of doing so stated to the court that he was about to call plaintiff’s husband as a witness; that the witness had been very sick and was at that time in a critical condition, and that he made this announcement to the court because he did not know what might happen while the witness was on the stand. To this statement by counsel, in the presence of the jury, counsel for Barr excepted, and requested the court to instruct the jury that the statement made by the counsel should not be considered by them, Which the court did. It is now insisted 'that the action of counsel was uncalled for and improper; that the statement was made for the purpose of arousing the sympathies of the jury, as Post and his wife were poor people, and Mrs. Post was compelled to labor for the support of herself and family. We cannot conceive of any reason for counsel making the statement to the court that he did before calling this witness, and if we thought this conduct of counsel influenced the action of this jury in the slightest degree, we would then be prepared to hold that the district court erred in not granting Barr a new trial because thereof. But we do not think it possible
á. The next complaint is of the action of the district court in permitting Mrs. Post on her redirect examination to answer the following .question:
Q. What was the condition of Mr. Post at that time?
A. He was sick, very weak; he had had what the doctors call-“hemorrhage of the brain,” on the 9th of January, and it left him in a very weak condition;' and it was a case of necessity that I should try to get something for my little ones to get bread and butter.
It is insisted that this evidence was not only incompetent, but was highly prejudicial, a® the record Showed that Barr was a man of some means and that Mrs. Post was a poor woman, and therefore it was calculated to prejudice the jury. But the answer to the argument is that the jury were already in possession of the very facts testified to by Mrs. Post in answer to the question made the subject of this assignment. She had already testified to this same state of facts in her examination in chief without any objection being interposed by Barr. It may be conceded that the admission of this evidence was error, but a judgment will not be.reversed for the erroneous admission of evidence if the same or similar testimony has already been admitted without objection. (Hanover Fire Ins. Co. v. Stoddard, 52 Neb. 745; Lamb v. State, 30 Neb. 312.)
5. One Dr. Holyoke was called as a witness in behalf of Mrs. Post and testified to having treated her for some time immediately after the alleged assault and battery. On his cross-examination counsel for Mr. Barr asked him the following questions:
Q. You have not been paid for your services yet down there, have you, doctor?
*704 Q. Now, doctor, did you ever present a bill for your services in this matter of Mrs. Post’s sickness?
The district court sustained objections to these questions, and its action in that respect is the next complaint made here. Mrs. P'ost had offered no evidence that she had either paid or become liable to pay for any sendees rendered by this physician. We think, therefore, that the court was right in ruling out this proffered testimony as immaterial..
6. As already stated, the testimony introduced in behalf of Mrs. Post tended to show that an operation was performed on her something like a year after the occurrence of the alleged assault and battery and at that time, a foetus was removed from her. Barr called Dr. Beaehley as a witness in his behalf; and after proving by him that he was a practicing physician, and had been for some years, and was somewhat acquainted with Mrs. Post, and that he was present at the time the operation was performed, and that he went there at the request and to assist one Dr. Crim, Barr’s counsel asked him this question: “I will ask you to state what conclusion was reached by the physicians there as to the nature of the ailment of the difficulty that necessitated that operation.” The court refused to permit the witness to answer the question, and this ruling is now complained of. We will assume for the purposes of this case that the testimony was competent; that the witness was competent to testify, and that the exclusion of the evidence was •error. But another physician for Barr was permitted to testify that he was present when the operation was per*formed upon Mrs. Post and testify to the conclusions reached by the physicians as to the nature of the ailment that necessitated the operation. This testimony was not attempted to be disputed by Mrs. Post. Counsel for Barr offered to prove by the witness that Mrs. Post’s ailment was “tubal” or “extra-uterine pregnancy;” and the other witness for Barr testified that this was 'the ailment of Mrs. Post. The rejection then by the court of the testi
7. The next complaint is that the court permitted a physician called as an expert witness by Barr to be unduly cross-examined. It would subserve no useful purpose to set out the questions which the court permitted to be propounded to this witness. The latitude which a cross-examination may take is a matter which rests largely in the discretion of the trial court, and generally a court is more likely to commit an error by unduly restricting a cross-examination than by extending it. It must suffice to say that we do not think the court abused its discretion in permitting this witness to be cross-examined.
8. On the trial Barr called as an expert witness in his behalf a physician named Stevens, who testified to an acquaintance with Mrs. Post, to having been present when the operation was performed upon her about a year after the alleged assault and battery, and that the operation was performed for “extra-uterine pregnancy.” He was then cross-examined at length by counsel for Mrs. Post and re-examined by counsel for Barr and excused. Subsequently he was recalled by counsel for Barr and asked:
*706 Q. Now, vomiting of blood, if caused by a blow, is caused by a rupture of a blood-vessel in the stomach, is it not?
A. Yes, sir.
Q. How soon after would the bleeding begin?
A. Immediately.
Q. Then the vomiting of blood would necessarily follow the bleeding?
A. Yes, sir.
Q. Now I will ask you, doctor, if you know whether or not vomiting can be produced by excitement?
A. Yes, sir.
Q. By fits of anger?
A. I should call that excitement.
Q. Do you know whether or not the plaintiff is so constituted as that excitement would readily cause vomiting?
The last question the district court refused to permit the witness to answer, and this action of the court is now assigned for error. We assume that the offered evidence was competent and‘that the physician was competent to give it. But under no view of the case that we are able to take can we see that the exclusion of the evidence by the court was prejudicially erroneous to the plaintiff in error.
| 9. On the trial Mrs. Post testified that Barr, at the time ;of the assault and battery upon her, used certain projfane language. Barr in his examination denied the use ¡of this language. He was then asked by his counsel, “I ¡will ask you to state whether or not you are a man given to the use of profane language.” The objection ¡to this question was sustained and Barr’s counsel offered to prove that he never used profane language in any way. ■The court excluded the offer. ' We do not think it would have been error for the court to have admitted this evidence. (Beakes v. Da Cunha, 27 N. E. Rep. [N. Y.] 251; Blumgren v. Anderson, 48 Neb. 240.) And we are quite clear that the court did not commit any reversible error
10. Ban- also offered to testify, while upon the witness stand, that he had never been arrested or prosecuted criminally for the assault and battery for which he was sued. The court excluded this offered evidence, as immaterial and incompetent. In this ruling we think the court was correct. The evidence offered did not tend to prove any issue on trial. The fact that Barr had not been arrested and prosecuted criminally for assault and battery was not evidence which even tended to prove that he was not guilty thereof.
11. On the trial a man named Van Atta testified that he was on the upper floor of the Barr block at the time the trouble occurred between Mrs. Post and Mr. Barr, and that Barr did not strike Mrs. Post, but that she struck him; and, in effect, he testified to having seen the whole transaction. In rebuttal Mrs. Post was questioned on the subject of Van Atta’s presence as follows:
Q. You may state if any person, any man, was standing there at that time.
A. No, sir; there could not have been, because I would have run right into him.
Q. You may state if James H. Van Atta was in the sideway or standing up there at that time. Could he have been there and you not have seen him?
This question was objected to, as calling for a conclusion and opinion of the witness. The court overruled the objection and the witness answered: “No, sir; he could not.” Counsel for Barr complains that by this ruling'the court permitted Mrs. Post to state her opinion. We do not think so. We think that she stated wha.t she did as a matter of knowledge. She was not; asked for her opinion, and she did not give it. She simply said Van Atta could not have been present and she not have seen him.
12. Another complaint relates to the action of the dis
13. A final argument is that the verdict of the jury is excessive, and appears to have been rendered under the influence of passion and prejudice. The verdict is for $2,000, and if the testimony of Mrs. Post is true, the verdict is not too large; and perhaps it is only fair to say that her testimony is corroborated. She testified that Barr knocked her down and pushed her against a stair banister; that her arm, shoulder, and thigh and side/were badly bruised; that she wms injured by being
Affirmed,