20 Wis. 262 | Wis. | 1866
We are of the opinion that there must be a new trial in this case, on account of the admission of improper evidence on the question of damages. Upon the trial, the witness Persons, among other things, was asked by the counsel for the plaintiff the following question: “ What was the amount of damage to the firm of Blair & Persons for the year 1863 by reason of the absence of Mr. Blair *1” This question was objected to, but the objection was overruled, and the witness pro
In tbe case of tbe Rochester & Syracuse R. R. Co. v. Budlong, 10 How. Pr. R., 289, Mr. Justice SeldeN discusses tbe grounds upon wbicb tbe opinions of witnesses are received as evidence, and comes to tbe conclusion tbat wben a question is so framed as to embrace tbe legal rule or measure of damages, it is improper. Tbe rule of damages is, in all cases, a question for tbe court; and an answer to a question as to tbe amount of damages in a suit, must necessarily assume, be thinks, the legal rule with reference to wbicb tbe damages are to be assessed, and hence should be rejected. See an instructive opinion by tbe same judge in Dewitt v. Barley et al., 9 N. Y., 374, 388; Same Case, in 17 N. Y., 340; also tbe case of Clark v. Baird, 9 id., 183, where tbe authorities are fully examined. In The New England Glass Co. v. Lovell et al., 7 Cush., 319; Joyce v. Maine Ins. Co., 45 Maine, 168; Rawls v. American Mutual Life Ins. Co., 27 N. Y., 282, tbe same question arose, and is more or less considered.
In view of all these authorities, it seems to us clear tbat tbe above question was improper and should have been rejected. Tbat it bad a direct bearing upon tbe question of damages is of course undeniable, and was calculated to'substitute tbe opinion of tbe witness for tbe judgment of tbe jury upon tbe facts of tbe case.
By the Court. — Tbe judgment of tbe circuit court is reversed, and a new trial ordered.
On a motion for a rehearing, tbe defendant’s counsel urged tbe court to decide some of tbe other leading questions as to tbe admissibility of evidence, presented by tbe record ; but tbe motion, was denied.