The controversy herein is between son and father. Like most family disputes, there is an express affirmation of fact on the one side, and an equally positive denial on the other. Considerable of the bad feeling and bitterness of the parties was injected into the case. It came in through improper remarks of counsel, offers of incompetent testimony, and in matters of cross-examination foreign to the issue on trial; all of which had a tendency to inflame the minds of the jury and divert their attention from the actual controversy between the parties. The defendant was in his seventy-ninth year. His former wife was dead. A few years prior to the trial he married again. In opening the case to the jury, plaintiff’s counsel said: “This new relation has hardly taken place until the temperature of the frigid zone came into the house.” Again, referring to a demand made by the plaintiff upon his father for pay, he quotes the father as saying: “My son will not get one
Upon the main question in the case, of whether there was an employment and a promise to pay, the parties were directly in dispute. Both were involved in contradictions and had made inconsistent statements. The jury were at liberty to believe whichever they chose. There was some evidence to support the conclusion reached, and, independent of other considerations, we should not be disposed to set aside their conclusion. Upon the question of the' value of plaintiff’s services, the jury seems to have gone widely astray. The plaintiff kept no books of account. During ail the years he claims to have been in his father’s employment he never made a memorandum of a single case he treated, or concerning which he counseled or advised his father. His guess was that his father called upon him on the average of four times a week, and that he counseled with him as to, four cases at each visit. His estimate was that he advised with his father concerning 1,000 cases each year, and that his services were worth a little less than $2 for each case. He was unable to state what he did in any given case, and had no memorandum or record from which he could determine the number of cases in any one week or month he acted as counsel in. Nor did he have any data or remembrance as to how much time he spent in his father’s service. Three physicians were called as experts for the plaintiff, who testified as to the value of his services. Neither one was put in possession of the actual facts in the case, but they were asked a hypothetical question similar to the following: “ Q. Doctor, if the defendant in this case consulted with the plaintiff in a professional capacity on an average four times a week, and at each consultation discussed four patients- on an average,
When we come to consider the nature of this testimony in connection with the other matters herein referred to, we cannot resist the impression that the verdict does not represent that calm, fair, and impartial consideration necessary ■in judicial proceedings. In other words, that it was perverse in the sense that prejudice was aroused against the defendant and that no proper foundation for the recovery allowed is found in the evidence. It is true the trial court cut the verdict, and reduced the recovery to $6,000. That the court had such power is now the settled doctrine in
By the Court.— The judgment of the superior court of Milwaukee county is reversed, and the cause is remanded for a new trial.