128 Iowa 239 | Iowa | 1905
Before going to the merits, there is a question of practice which must be disposed of. Plaintiff has filed a motion to strike parts of the evidence from the abstracts on the ground that it was not properly preserved and made of record in the trial court by bill of exceptions- or otherwise.
The facts with reference to this matter are that the evidence was taken down by two shorthand reporters, one serving during the early part of the trial and the other during the latter part. B. I. Tanner and L. M. Hull were the two reporters, and they were each official reporters of the district court of Jones county.
Remembering that this is a law action, and that the statutes now recognize shorthand notes duly certified as being the equivalent of a bill of exceptions, it is apparent from this statement that the evidence was properly preserved under the provisions of section-3675 of the Code, or, if this be not true, that plaintiff,” on account of her counsel’s agreement, is now estopped from asserting that the notes are not properly certified. Brethol v. Village, 168 Ill. 162 (48 N. E. Rep. 38).
Counsel claim, however, that the court had no such authority. They rely upon statutes relating to the correction ' of errors in journal entries made through mistake or oversight, which have no possible application to this case. An entry nunc pro tunc is something entirely different from an entry correcting an oversight or mistake.
Courts have inherent power to make orders nunc pro tunc, and they are not limited by these special statutes as to time when application may be made.
Such an entry, of course, assumes that an act was done at a particular time, which never got of record in the proper books; and the entry is finally made now for then. If there was no act done, then, of course, there can be no entry nunc pro tunc. If the act was in fact done, but the proper evidence thereof is wanting, it may subsequently be supplied so as to relate back to the time when the act was in fact done.
That the entry in this case was not made until after the time for the filing of a bill of exceptions had expired is of no importance. The very object of the proceeding is to secure an entry which will relate back. If no attempt had been made to file a bill under the agreement, or if there had. not in fact been such an agreement as Claimed, the court could not, after -the time for the filing of a bill had expired, do anything which would give the defeated party a right to then file a bill. But that is manifestly not this case. . -
As the trial court had jurisdiction to make the order, we shall not inquire as to the sufficiency of the evidence to sustain it; nor shall we cite authorities in support of the prin
II. We come now to the merits, and shall first dispose oí the questions relating to rulings on evidence.
On re-examination the doctor testified that plaintiff had never before the accident been troubled with hysteria, and on
At any rate, the comparison made by the witness with reference to the ice at other places was not prejudicial, save as defendant made it so by insisting upon cross-examining with respect thereto. The mere fact that witness did not think the ice at other places which he had noticed was as bad as at the one in question was immaterial save as it explained his answers given upon cross-examination, and we are not prepared to say that when a matter is brought out on cross-examination, as in the instant case, the party calling the witness may not rebut the inferences which may arise from the cross-examination by calling for the witness’s opinion or conclusion. At any rate, the field is left open for such relevant
The inference to be derived from his testimony was that defendant has used due care with reference to the construction and maintenance of the walk. On cross-examination he was asked if he had not notified the owners of the building abutting upon the walk, and who were responsible for the conditions as they existed, that there was a bad place there, and that they must change their stairway. Objection to-this was overruled, and he answered that he had notified them about it. The ruling is complained of. We think it was correct. It tended not only to rebut the inference that there was no defect in the walk at the point in question, but also showed notice of the defect to the city. If it be contended that this witness’s direct examination showed notice to the city, then the answer was without prejudice. If the inference to be derived was to the contrary, then it was proper cross-examination. That the declaration was made to a third party is not controlling. At the time the declaration was made or the notice given the property owner the street commissioner was acting for and on behalf of the city, and his declaration at that time showing knowledge would be binding upon the city, just as much as if the city had made the declaration itself. Butler v. Malvern, 91 Iowa, 398; Smith v. Des Moines, 84 Iowa, 685.
And the only debatable proposition is whether or not the trial court erred in admitting the testimony of Sandhouse. Of course, his testimony was not substantive in character. It was admitted either for the purpose of impeaching Lucky, or of destroying, the effect of his testimony regarding plaintiff’s
But for this unbroken line of authority, the writer would be inclined to adopt a contrary rule. Such evidence as was here introduced, while perhaps collateral, in that it did not go to the main issue in the case, was brought into it by the defendant in order to show that plaintiff was not a credible witness. Plaintiff, as all the cases hold, had the right to fully cross-examine as to the witness’s means of knowledge, etc., and, having obtained it, she should, as it seems to me, be permitted to impeach the impeaching witness, or to show that he in fact did not have the necessary knowledge upon which to venture an opinion as to general moral character. Such testimony would also, it occurs to me, tend to show prejudice and bias on the part of the witness. But as there seems to be nothing sustaining such a rule save an unsupported remark of Professor Wigmore in his new work on Evidence, section 1111, it is better, perhaps, to follow the current of authority, and to adhere to what is called the “ orthodox rule.” Plaintiff’s counsel in 'argument made the most of this testimony of which he was capable, and that prejudice resulted from the admission thereof is not only presumed, but in this instance clearly demonstrated.
We shall say no more about rulings on evidence, for, although other matters are argued, they are not of sufficient importance to justify further mention.
III. The negligence charged against the defendant was
Defendant complains of the trial court for refusing to give certain instructions asked by it; and also of those given by the trial court. As the case must-be reversed on account of the error already pointed out, what is said regarding the instructions will be for the guidance of the court upon a retrial.
As pointed out in Bever v. Spangler, 93 Iowa, 610, such instructions are always dangerous, especially where, as here, defendant is handicapped by a statute which denies it the right to introduce plaintiff’s physicians as witnesses. Whether or not such an instruction is justifiable must depend upon the facts of each ease, and, as a general rule, it is better not to suggest such tests as were here proposed.
The' law as announced in these cases should have been
Without setting out the instructions in full which were given and refused, we have indicated in a general way our views with reference thereto, to the end that upon a retrial the case may be presented to a jury in accord therewith^
Nor the.errors pointed out, the judgment must be and it is reversed.