Moeller v. Karhoff , 98 Iowa 726 ( 1896 )

Kinne, J.

1 I. On the trial, plaintiff, as a witness, was, against defendant’s objection, permitted to testify as to the number of members of his family, the number living at home, and whether they were boys or girls. Other testimony was given to the effect that plaintiff was the head of a family. We need not determine whether this evidence was admissible, as, in any event, we are satisfied it worked no prejudice to the defendant. But see Davis v. Seeley, 91 Iowa, 583 (60 N. W. Rep. 183), and cases there cited.

2 II. Complaint is made that the court erred in excluding evidence which was offered to impeach one Pomberg, a witness for plaintiff. The ruling of the court seems to have been based upon the understanding that Pomberg had testified that he had no recollection of making the statement attributed to him. He once testified that he did not remember of making the statement inquired about, but after-wards positively stated that he did not make the statement. Under these circumstances, the impeaching evidence was proper, and should have been received. It is not necessary to discuss as to what the effect would have been had the witness adhered to his statement that he did not remember, because he afterwards abandoned that, and positively denied making the statement. This witness was the main one relied upon to establish plaintiff’s case, and the rejection of the testimony was prejudicial error.

III. Error is assigned on the giving and refusal of certain instructions. We have examined these instructions, and think the rulings were proper. We cannot, in view of a retrial of the case, pass upon the weight of the evidence.

For the error pointed out, the judgment below is REVERSED.