Alleman v. Stepp

Beck, Ch. J. — I. Tlie petition declares upon an account for services rendered by plaintiff, as a surgeon, in reducing fractures of tlie bones of defendant’s leg, tlie amputation of the thigh, and attendance until tlie defendant’s recovery. Tlie answer admits tlie services, but as a defense pleads that there was a difference between the parties as. to the true and just amount of plaintiff’s bill, and therenpop they had a settlement and plaintiff agreed to charge $250 for his services, which defendant then undertook to pay., Under this settlement it is alleged that, after deducting credits given by plaintiff in his account, there remains due plaintiff, the sum of seven dollars and no more, and for that amount defendant offers to confess judgment. II. The plaintiff insists that the defense set up in the answer is not good, as it presents an accord and satisfaction which cannot be supported in this case for these reasons: . . 1. There is no consideration shown, and the defense and tlie evidence in support of it shows that the plaintiff' receives no consideration for relinquishing a part of his just claim. ,; 2. The agreement pleaded and shown was a mere executory contract, while an accord must be executed. This objection is sufficiently answered by the consideration that it was not i,n any manner raised in the court below. The answer pleading the defense was not assailed by demurrer, nor was objection made to the introduction of the evidence offered to support the answer, nor was any question involving the objection raised upon the instructions to the jury. If plaintiff’s view of the law be correct, his objections come too late. ,i. evidencie: . <>rminean1'!1 <iui oil. III. The defendant testified to the settlement .as alleged in his answer; it was denied by plaintiff. It can hardly belaid that defendant’s testimony is corroborated, but the abstract does not purport to give all the evidence. The. plain tiff introduced a physician who .testified .that he had known the defendant from a time prior t.o .tlje [628] annotation of his limb. lie was then asked to state the condition of defendant’s mind as to memory before and after the injury; to state the effect of the injury upon defendant’s memory as to money and finances in particular, and to state whether, in the opinion of the witness, the mind of defendant was greatly impaired. The evidence, upon defendant’s objection, was rejected. We think the ruling erroneous. Surely, if defendant was suffering from an impaired mind, which affected his memory, the fact would tend to lessen the credit to be given to his testimony. Can it be doubted that the credibility of a witness may be assailed by showing his want of mental capacity? It is said that the infirmity of memory should be shown by cross-examination. But it might not be made to appear in that way, though it really existed. The witness was a physician- and knew the defendant before and •after the injury and the condition of his mind as to memory. He was surely competent to state the fact of defendant’s loss bf memory, and in our judgment he was competent to state his opinion of the defendant’s mental condition, based upon his knowledge and observation of the defendant before and after the injury. If in this way it should be made to appear that defendant’s memory was impaired by disease, his credibility would be impeached. Under familiar rules of the law the credibility of a witues ’may be impeached by showing moral defects. Mental defects in the "witness, or loss or impairment of memory, will, according to the observation of all men, detract from the credibility otherwise due a witness, just as surely as do moral defects. It is not reasonable to hold that the law will permit impeachment of a witness by showing the moral defects of his character, and will not permit impeachment by proof bf defects of memory caused by diseases of the body or mind. - Under the-rules of evidence, and statutes of this state, a witness may be impeached by proof of his bad moral character, and that his reputation for veracity is so low that he cannot be believed under oath. The impeaching witness states his. ■conclusions, belief or opinions, based upon knowledge of the character and reputation of the witness whose credibility is [629] brought in question. The like course was proposed in' this case, to impeach the defendant by showing his mental defects: The testimony excluded was of the conclusion, belief and ojiim ion of the witness, based upon knowledge that defendant’s ■memory was impaired by disease affecting the mind. It is proper to say that the rule we recognize extends no farther than to permit the impeachment of a witness by showing an abnormal condition of the mind caused by disease, or habits which impair the memory. It will not permit evidence of the want of strength or accuracy of memory of a witness whose mind is not shown to be in an abnormal condition. While it is true that the memories of men of sound physical and mental health are not equally strong and accurate, or they are unequal in other faculties of the mind and in physical development, the law can devise no standard of measurement or test of the mind in its normal condition. It cannot be compared with the mind of others in order to impeach or support the memory. Our conclusion upon this point of the case 'finds support in the following authorities. Isler v. Dewey, 75 N. C., 466: Fairchild et al. v. Dascomb et al., 35 Vt., 398; 2 Phillipp’s Ev., Cowen & Hill and Edward’s notes, p. 950, note 596; Sisson Ex. v. Conger, 1 Thompson & C. (N. Y. Sup. Ct.,) 564; Rivara v. Ghio, 3 E. D. Smith (N. Y. Common Pleas), 264; Livingston v. Kiersted, 10 Johns., 362. See, also, as tending the same way, Flemming v. The State, 5 Hump., 564; Tuttle v. Russell, 2 Day (Conn.), 201; McDonald v. Preston 26 Geo., 528. Gibson, J., arguendo, in Brindle v. McIlvain, 10 S. & R., 285. A contrary doctrine is held in Goodwin v. Goodwin, 20 Geo., 600. Other questions in the case, as it is not probable théy will again arise upon another trial, .need not be considered. , For the error in excluding the evidence offered by plaintiff, the judgment of the District Court is . Eeversed.