Opinion
April Term, 1901.
Franklin Pierce, for the appellant.
Charles F. Brown, for the respondent.
This action was brought to recover damages for loss of services of the plaintiff's son, who was injured by one of the defendant's cars. The jury rendered a verdict for the defendant, and from the judgment entered thereon the plaintiff has appealed.
We are of the opinion that an exception taken by the plaintiff's counsel to the charge of the learned trial justice necessitates a reversal of the judgment. During the course of the trial it appeared that some of the defendant's witnesses had been paid, in addition to the statutory fees, certain sums of money, and which fact it is fair to assume, from the charge as made, was called to the attention of the jury and commented upon by the counsel for the plaintiff, because the learned trial justice stated in substance in his charge that the fact that a witness had been paid certain sums in addition to his statutory fees did not necessarily discredit him and that such payments were common and recognized. The plaintiff's counsel requested that the court charge the jury that it might "discredit a witness who has received sums of money, considerable sums, $10 or $15 at a time, where it does not appear that it was paid to him after, but was paid to him before — that it bears upon his credibility." This request was declined, the court saying: "I charge otherwise in this case." Plaintiff's counsel excepted, and we think this exception was well taken. It is not a correct statement of the law, and it does not require the citation of authorities nor an extended discussion to prove that fact.
The statute provides what a party shall pay to a witness and requires him to attend when such sum is paid, and, if he does not, he subjects himself to a certain penalty as well as a liability to make good the damages sustained by the party subpœnaing him by reason of his failure, and, in addition thereto, is guilty of a contempt of court, for which he may be fined and imprisoned. And, whenever a witness has been paid money in excess of the legal fees, that fact, in and of itself, is always a proper subject to be considered by the jury as bearing upon his credibility; that is, whether the testimony of such witness is influenced by the increased or additional payment.
For the error thus committed there should be a new trial. It follows that the judgment and order must be reversed and a new trial ordered, with costs to the appellant to abide the event.
VAN BRUNT, P.J., PATTERSON, INGRAHAM and HATCH, JJ., concurred.
Judgment and order reversed and a new trial ordered, with costs to appellant to abide event.