Wade v. Thayer

The facts are stated in- tbe opinion.

Appear from District Court of tbe Sixth District, City and County of Sacramento.

First — On tbe trial, tbe defendant in rebuttal placed several witnesses on tbe stand, and offered to prove by them tbat Barret, Gruce, Newbouse and O’Connor, witnesses who bad been sworn and examined for defendant, were present at tbe time of tbe difficulty. Tbe Court refused to permit tbe testimony to be given.

Several witnesses for plaintiff bad testified tbat those witnesses were not present, and it was clearly in rebuttal to sbow tbat tbey were; beside, tbe testimony offered would bave tended to discredit tbe -witnesses wbo testified tbat tbey were not present.

Second — Defendants requested tbe Court to charge tbe jury tbat: “Damages are given asa compensation, recompense or satisfaction to tbe plaintiff for an injury actually received by bim from tbe defendant, and tbe damages assessed by tbe jury should be commensurate with tbe injury received and no more,” which charge tbe Court refused to give.

This was error. (2 Greenleaf on Evidence, §253; RocJc-wood v. Allen, 7 Mass. 256; Bussy v. Donaldson, 4 Dali. 207; Churchill v. Watson, 5 Day, 144; Hall v. C. B. 8. Co., 13 Conn. 320; Southard v. Bexford, 6 Cowen, 264; Baierman v. Goodyear, 12 Conn. 580.)

Third — Tbe Court refused to charge tbat: “If tbe jury find, from tbe evidence, tbat tbe defendant Tbayer neither commanded, knew of,'or assented to any assault or battery made by tbe defendants, Land or Carmody, if any such was made on plaintiff, then their verdict must be in favor of said defendant.”

This refusal was in violation of tbe well established rule tbat tbe master is not liable for tbe willful, designed, intentional or criminal injury, wrong or trespass of bis servant. (2 Hilliard on Torts, 422; Douglass v. Stephens, 18 Mo. 367; McManus v. Cridcett. 1 East. 106; Wesson v. Seaboard B. B. Co., 4 Jones, 379.

First — Tbe first point made by tbe appellants, unsupported by authorities, is, tbat tbe Court erred in refusing to allow them to prove by Wade, Tbayer, Land and Car-mody, tbat Barrett, Gruee, Newbouse, and O’Connor, witnesses wbo bad been sworn and examined for defendant, were present at the time of the difficulty, claiming that such testimony would-have been in rebuttal of the evidence of plaintiff to the effect that those witnesses were not present, and would have tended to discredit the witnesses who so testified.

The term ‘ ‘rebutting evidence” is more particularly applied to that evidence given by the plaintiff to explain or repel the evidence given by the defendant. (2 BOliviers' Law Die. 424.) And this is the true rule to be applied to this point of the case; the testimony of Barret, Grace, Newhouse, and O’Connor, was simply to contradict, or in rebuttal of, the evidence previously introduced by plaintiff, giving a different version of the transaction from that already given, as they saw it being present, which was in turn contradicted or rebutted by plaintiff’s evidence, subsequently offered, to the effect that they did not see it and were not present. If then, defendant, as a matter of course, upon any principle of legal reasoning, were at liberty to give rebutting testimony, by parity of reasoning, plaintiff would have been entitled to his rejoinder, and so on ad infinitum, ' -