Lambrecht v. Holsaple

Maesi-iaix, J. The points suggested by appellant will be briefly referred to. If respondent was out of the state at the time of the trial, his evidence taken in justice’s court was competent to be introduced. Sec. 4141a, Stats.; Szeliwicki v. Connor L. & L. Co. 163 Wis. 20, 156 N. W. 622. Whether respondent was out of the state or not, so as to render admissible his evidence taken upon the first trial, was a question of fact for the court to decide. Proof was produced to establish such absence which was deemed prima facie sufficient. No evidence to the contrary was offered. It does not appear that the decision in that,respect was clearly wrong and therefore it cannot be disturbed. It requires a pretty strong case to warrant overturning the ruling of the trial court on a mere question of competency. Emery v. State, 101 Wis. 627, 648, 78 N. W. 145. There was evidence to the effect that, after the first trial, respondent placed the horse with a friend to take care of and departed from the state. After considerable time, appel [467] lant persisting in bis refusal to take back tbe animal, it was sold. Those circumstances do not affect this case. The rights of the parties became fixed before it was commenced. Kespondent had a cause of action then or he did not. The trial court ruled right on that question. Eespondent testified that he was but twenty years of age when he purchased the horse. Evidence was given that he had made statements inconsistent therewith in a sáloon, where he applied for a drink of intoxicating liquor. He then declared he was of age. There was evidence tending to show that he had been away from his parents’ home for a considerable period of time; that he worked in the neighborhood where the particular transaction occurred for a year theretofore, and conducted himself, generally, as an adult. He was permitted to introduce, as part of his evidence, what purported to be a baptismal certificate which contained recitals indicating that he was but twenty years of age when the trade was made. That the certificate, conceding for the case that it was sufficiently authenticated, was not admissible in evidence to prove the date of birth of respondent, is ruled by Lavin v. Mutual Aid Soc. 74 Wis. 349, 351, 43 N. W. 143. Permitting it to be introduced as part of respondent’s evidence, under the circumstances, gave it all the efficiency of independent evidence. It follows that, whether the verdict was properly directed must turn on the evidence, leaving out the baptismal certificate. In that view, it is considered that there was a jury question, as to respondent’s age. The burden was upon him to establish his claim, by evidence, to the satisfaction of the jury. If there were room in the evidence for the jury to have reasonably found either way, it was error to direct the /verdict. That there was such room clearly appears. The trial court would, doubtless, so have held had the baptismal-certificate been out of the case. There was a reasonable inference, as the jury might have thought, that respondent was [468] an adult from tbe fact that be bad been doing business for bimself for a considerable length of time. Ilis deliberate declaration out of court that be was of age, a jury might fairly consider of as much weight as his evidence, in his own interest, in court, that he was a minor. His absence, also, from the trial, unexplained, preventing the jury from judging his age by his appearance, was a circumstance worthy to' be considered. On the whole it seems that fatal error was committed by not submitting the cause to the jury. By the Court. — The judgment is reversed, and the cause remanded for a new trial.