89 Wis. 440 | Wis. | 1895
We think that tbe plaintiff should have been allowed to show, if he could, that the defendant’s principal witness, Teichgraber, was intoxicated at the time of the transaction to which he testified. It would certainly have been competent to show that the witness was not in fact present, or that, although present, he was blind or ■asleep or in a condition of stupefaction, so that he could not apprehend what was going on about him. The proof that he was intoxicated is of the same general character. It is not strictly impeaching, but it tends to show that his faculties of observation were either entirely gone or much impaired. 1 Whart. Ev. § 401; Fleming v. State, 5 Humph. 564.
Proof was allowed, against objection, that the defendant was sick at the time of the trial, and had been confined to his bed for six weeks. It was probably competent to show the fact that he was sick, in order to explain his absence at the trial, if he was absent; but the fact that he had been ■sick for six weeks had no relevance and should not have been allowed to be proven.
A number of exceptions were taken to the charge and to refusals to charge, but which we do not think it neces■sary to state at length. Upon examination of the charge we think the questions at issue were fairly submitted and the issues fully covered. The instruction to the effect that ’no punitory damages could be allowed is certainly correct. 'There was no evidence in the case of any ratification by "the defendant of the captain’s act, and in the absence of such evidence no punitory damages could be assessed. Bass v. C. & N. W. R. Co. 42 Wis. 666.
Although the views we have expressed necessitate reversal, we deem it proper to notice another question which is fairly presented by the record. The verdict being for less than $50, the court allowed costs to the defendant. The plaintiff claims this to be error, because he says the action
By the Court.— Judgment reversed, and action remanded for a new trial.