Hartzell v. Wagner

152 N.W. 693, 35 S.D. 472, 1915 S.D. LEXIS 67

• Court: South Dakota Supreme Court
• Decided: May 24, 1915
• Docket: File No. 3664
• Status: Published

Opinion

POLLEY, J.

Appellant and respondent owned adjoining farms in Beadle county. During the spring of 1909 a fire that had been started by respondent on his place was permitted to run over onto the land of appellant, where it injured or destroyed a grove of young trees that had been planted by appellant and was growing on his land. That ■ the fire was started by respondent, and that it was permitted, to run over onto the land of appellant through the negligence of respondent, was never questioned, nor does he at any time appear to have -been unwilling to make amends for the damage caused. The matter of replanting ’the’ grove was discussed at various times by appellant and respondent, but nothing was done until the spring of 1911, when respondent replanted 114 of the trees that had been killed by the fire. This he claims, and his testimony at the time of the trial tends to prove, was clone pursuant to an understanding with appellant; that this number of trees replaced all the trees that had been killed by the fire; that they were planted in a manner satisfactory to appellant, and were accepted by appellant in full satisfaction for all the trees that had been destroyed by the fire. This was denied by the appellant.

[1] At the trial appellant was a witness in his own behalf. Upon his cross-examination the court, over his objection, permitted respondent to show that, between the time of replanting the trees and the trial of the case, certain matters transpired that may have created a considerable feeling of hostility on the part of appellant toward respondent. This, of course, was for the purpose of showing that the - witness’ testimony might be biased by his feeling against respondent. The facts brought out were irrelevant to the issues in the case, and, under the general rule, would not have been admissible; but to this rule there is a well-established exception to the effect that, for the purpose of showing the interest of the witness in the matter at issue or his feeling toward either party to the action, he may be interrogated on cross-examination as to matters that otherwise would be wholly collateral to- the issue. Jones on Evidence (2d Ed.) §§ 828, 829. As to such matters, the witness may -be impeached notwithstanding the' rule that a witness cannot be impeached upon a collateral matter brought out on cross-examination. The evidence complained of was properly admitted.

[2] At the trial appellant attempted to prove that the replanting of the trees by respondent was not done properly nor in a workmanlike manner, but in such a way that the trees were not likely to grow. Upon respondent’s objection, this evidence was excluded, and the exclusion thereof was assigned as error. There was no ■ error in the exclusion of this testimony, as it -was not responsive to any of the issues in the case. Plaintiff in his complaint alleged the destruction of the trees and the amount of the damage. Defendant admitted the injury to the trees, but alleged that the damage had been -paid by a replanting of the injured trees and an acceptance of such replanting -by plaintiff in settlement and satisfaction of the injury. The issue, therefore, was as to whether such -settlement had, in fact, 'been made, and evidence as to the manner in which the trees had been planted was wholly immaterial.

The judgment and order appealed from are affirmed.