Kaime v. Trustees of Village of Omro
| Decision Date | 11 May 1880 |
| Citation | 5 N.W. 838,49 Wis. 371 |
| Parties | KAIME and another v. THE TRUSTEES OF THE VILLAGE OF OMRO |
| Court | Wisconsin Supreme Court |
Argued April 26, 1880
APPEAL from the Circuit Court for Winnebago County.
The case is stated in the opinion.
Judgment affirmed.
Moses Hooper, for the defendants, who were appellants.
For the respondents there were briefs by W. B. Felker, and oral argument by C. W. Felker.
This action was brought by the respondents against the Village of Omro, in its corporate name, for the purpose of recovering damages for an injury sustained by Mehitabel Kaime upon one of the sidewalks of a street in said village, which the respondents allege was out of repair at the time, and that such want of repair caused the injury. The respondents are husband and wife, and the only claim made by them on the trial of the action was for the personal injuries sustained by the wife. The first error assigned by the learned counsel for the appellants is, that the circuit judge permitted the husband to testify in behalf of the plaintiffs on the trial, against the objection of the defendants.
It is urged by the learned counsel that the husband is a nominal party only, and that he is therefore excluded under the rule which holds that a husband cannot testify either for or against his wife in an action to which he is not a party. Farrell v. Ledwell, 21 Wis. 182; Yager v Larsen, 22 Wis. 184; Mountain v. Fisher, 22 Wis. 93.
If it were admitted that in an action in which the husband was joined as a mere nominal party, having no pecuniary interest whatever in the result of the action (as in an action by the wife concerning her own property, or to recover money or property which belonged to her and in which the husband had no interest), he would not be a competent witness, such admission would not exclude the husband in this case. The husband had a direct interest in the result of the action; he was in fact the real party in interest; the judgment, if any were recovered, and the money collected thereon, would belong to him. Shaddock and wife v. The Town of Clifton, 22 Wis. 114. In that case it was held that an admission made by the husband was evidence in the case against him and his wife; and it was so held upon the ground that he was the real party in interest. There can be no doubt that under this decision the husband was a competent witness for himself and wife in this case, and that no error was committed in permitting him to testify.
The second error assigned by the learned counsel for the appellants is, that the court erred in permitting the plaintiff, as a witness on his own behalf, to testify to a certain statement made by one Putnam, a witness called by the defendants, for the purpose of contradicting such witness. Putnam was asked, upon his cross examination, whether he had stated to Mr. Kaine, the plaintiff, that he did not know anything about the condition of the sidewalk, and he denied that he had said any such thing. He was also questioned about his being asked by Mr. Kaime whether he was subpoenaed, and he answered that Mr. Kaime did not ask him that question, but asked him whether "he was engaged on the trial."
Mr. Kaime was recalled, and the following question was put to him: "Did Mr. Putnam tell you, on Tuesday last, that he was not a witness, and did not know anything about that sidewalk?" The defendants objected to so much of the question as asks "whether he did not say he was not a witness." It is urged that whether he said he was a witness or not was wholly a collateral matter, in no way connected with the issue in the case, and if, on his cross examination, he denied making such statement, such denial could not be properly contradicted by another witness for the purpose of affecting his credibility. The rule suggested by the learned counsel for the appellants, that when a witness is questioned as to a matter which is not material as evidence tending to prove the issues in the case, his statements as to such matter cannot be contradicted by way of impeaching the credibility of the witness, is undoubtedly the true rule. 3 Wait's Pr., 140, and cases cited. It is urged that, under this rule, whether the witness Putnam had stated that he was or was not a witness in the case was immaterial matter, and the court should not have allowed his statement on that point to be contradicted.
The question was admissible on cross examination for the purpose of showing the bias of the witness; but as it was a question put to the witness merely for the purpose of showing his bias, the questioner must be content with the answer he receives from the witness. We think, however, in this case, no harm was done to the defendants, and that there was no substantial violation of the rule. The object of the questions put to the witness Putnam on his cross examination was to show that he had stated, a day or two before he went on the stand as a witness, that he knew nothing about the condition of the sidewalk at the time the accident happened. As a witness he had testified that he did know the condition of the sidewalk, and that it was in good condition. It became important for the plaintiffs to show, if they could, that out of court, and shortly before, Putnam had stated that he knew nothing about the condition of the walk. The learned counsel for the appellants does not object to his being contradicted upon the subject of what he said about his knowledge of the condition of the sidewalk, but confines the objection to what was said about being a witness in the case. The question as to whether he was a witness or not was only a part of the inquiry made to find out whether Putnam knew anything about the case. There was no direct contradiction on the subject of Putnam being a witness.
Putnam stated "that Kaime asked him if he was engaged in this suit, and he told him he was not--he had not heard anything about it." But he denied that he was asked "whether he had been subpoenaed on the trial." The plaintiff does not state that he asked Putnam whether he had been subpoenaed as a witness on the trial, but he probably construed the statement of Putnam, "that he was not engaged in this suit," as a denial that he was a witness. We are at a loss to understand how, under these circumstances, the defendants could have been injured by permitting Kaime to state that Putnam said he was not a witness, when Putnam himself admitted that he had stated he was not engaged in the suit. The difference in the two statements is not so apparent and material as to cast any discredit upon Putnam's evidence which had not already been cast on it by his own statement. The real point of contradiction, and the one which would tend to discredit the witness, was that he had stated he knew nothing about the sidewalk.
The third error assigned by the appellants was the refusal of the court to direct a verdict for the defendants for the reason that it appeared in evidence that the plaintiffs had presented a claim to the village board for their damages, and that the board had rejected the claim. It is apparent that under the provisions of the village charter, this was not such a demand as the charter requires must be presented to the board for their action before a suit can be brought thereon; and this is...
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