Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1915-04-07
Supreme Court
FROM WiLLlAMsncoUNTY.%

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IN. b. Dowd, PLAINTIFF and Respondent,
VS.. 2 (,
LA. McGinnity, Defendant and Appel
liant.
syllabus: Action for damages for
assault and battery. fPlaintiff had
Judgment for $3.50 and interest. De-
PENDANT appeals.
Cd Certain questions asked of one
DR.. Judd whose testimony had been
taken up by deposition were objected
to when such deposition was offered
in evidence. The better practice is to
offer the objection at the time the wit
ness gives the testimony. In this case
it Is difficult to tell from the record
what part of the doctors testimony
was in evidence at the time the objec-
lions were taken and 1t If, therefore.
difficult to review the trial courts rul-
ings. No error, however, appears
from the record which we have before
us. r sa r 9t'
(2) DR.. LaBarge was asked for an
opinion based upon the testimony of
another witness whom he had heard
testify. After objection that the truth
of such Doctors testimony was not as
sumed, the trial court said: The court:
"That is, assuming that the evidence
given by such and such witnesses are
true. O%ver-ruled, l will let him an
swer." This ruling was heard by the
witness and became part of the origi-
nal question. Later, the trial court
struck out the doctors testimony rela-
tive to this matter. If there was any
error, the same was thereby cured.
90 While the defendant was upon
the stand. and being cross examined,
he was asked whether or not he had
been arrested and convicted in a GRIM
inal action for assault and battery rel
alive to those same facts. The objec-
ton was over-ruled and witness re-
piled that he had been. Later, the
trial court stated that he would enter
tain q motion to strike out such testi-
mony and upon motion Of the defend
ant the same was stricken out and
the jury admonished to disregard the
same. This cured any error. Z
ca One Reiser, witness for defen-
dant, was asked certain questions rel
alive to plaintiffs mental condition.
Same were properly excluded because
the witness had not shown himself
competent to testify.
(5) Defendants witness, Hankey,
failed to show sufficient foundation for
his testimony as to plaintiffs mental
condition and the questions quoted in
the opinion were properly excluded.
CO. The court struck out the testi-
mony given by defendants witness,
Spangerud, relative to Plaintiffs men.
tai condition after the witness had ad-
mitted that he had not observed plain
tiff's condition.
O. The question asked of defend
ants witness, Rock, was properly ex-
| cluded, being unfair.
(S) DR.. Stobey gave testimony rel
alive to- plaintiffs mental and physi.
cal condition. Held, That the defend
ants opinion was based upon his per-
sonal examination and not upon state
ments made to him by the plaintiff
and, therefore, was not hearsay.
co. One of defendants witnesses
was asked as to plaintiffs ability to
sign his name in the spring of 1911.
Witness had not observed plaintiff
sufficiently to testify as to his mental
condition and II the question was ask
ed for any other purpose, it was i'm
material.
(1O) Evidence examined, and, held
sufficient to sustain the verdict in the
sum found by the jury.
(11) A motion for a new trial bas.
ed upon the affidavit of a witness. who
turned away as soon as she realized
there was going to be a fight, was pro-
perly denied by the trial court.
Appeal from the District Court Of