Martin v. Barnes , 7 Wis. 239 ( 1859 )

By the Court,

Smith, J.

This was an action commenced by the appellants, Martin and wife, in the Racine circuit court, against the defendant to recover damages for an assault and battery committed by the defendant upon the wife of the complainant, Peter J. Martin. The cause was tried at the October term of the Racine circuit where the plaintiffs obtained a verdict. Upon a case made, and affidavits presented, the defendant moved for a new trial before the circuit court at the April Term, 1858; on the merits of the case as made, and also on the ground of newly discovered evidence, and surprise. Upon the hearing of this motion the court below made an order, setting aside the verdict, and granting a new trial with costs to abide the event of the suit. From this order the plaintiffs appealed to this court.

The code of procedure has inaugurated a new practice in allowing an appeal from an order of a circuit judge granting a new trial on the application of the defendant. But although it is novel, we are not prepared to say that it is altogether deserving of condemnation. However that maybe, it is nevertheless novel, and the questions which it presents must be considered in reference to the provisions of the statute which allows it.

The only matter which we feel called upon to notice, is the alleged error of the judge, on the trial below, in rejecting the offer made by the defendant to prove, that a bargain had been made between Barbara, one of the plaintiffs, and the witness Froemach, that she should pretend to be sick in consequence of the fall, and that this suit should be prosecuted for the benefit of both of them.

We are of the opinion the evidence offered was competent. It went to the credibility of the witness, and respected conduct of his, which did not require to be called to his attention, like conversations he may have had, respecting the subject matter of his testimony. Besides it tended to show a corrupt combination, not to say conspiracy between the witness and defendant to injure the latter. Kellogg vs. Nelson, 5 Wisc. Rep., and authorities there cited.

It is contended by the appellant that though the court erred in rejecting the evidence, the error was immaterial, inasmuch as the witness of the defendant testified to the reality, and severity of the sickness of the plaintiff. This is true, but we cannot tell, what degree of weight the jury might have given to the testimony of the witness Froemach or Schneider, and as it was an error which might have effected the verdict, injuriously to the defendant, we think the judge did right in setting the verdict aside and awarding a new trial.

There is nothing else in the case worthy of comment. Let the order granting a new trial be affirmed with costs, and the cause be remanded for further proceedings according to law.