DISSENTING- OPINION.
STURGIS, J.I concur in the majority opinion, except in holding that the trial-court committed reversible error as to punitive damages in excluding the evidence, contradictory of plaintiff’s evidence on cross-examination, that he (plaintiff) told a third party that he sent word to defendant in the morning before the assault in the afternoon for defendant to come and take charge of the pool room. The majority opinion holds this to be error because such evidence would tend to rebut any inference of malice or wantonness and was proper in mitigation of punitive damages. I find no fault with the law as announced, but only as to its application to the facts here.
While defendant in a suit involving punitive damages growing out of an assault is entitled to mitigate such damages by circumstances tending to disprove wantonness or malice, yet, this extends to such circumstances only as have some material bearing on that issue. Had plaintiff made any claim in this case or *521was there any evidence that defendant came to the pool hall run by plaintiff in an angry mood or with the intent to insult, abuse or assault him, or even against plaintiff’s will, then his motive in going there would be material. In this case, however, as I read the evidence, plaintiff was making no such claim but both parties testified that they had always been the best of friends and that there was a total absence of ill will up to the very time of the assault. Plaintiff admitted that he had told defendant he would give up the pool hall unless he could raise the money to pay what was due and his evidence shows that defendant was welcome to come there to collect money or otherwise. At the time of the assault, plaintiff says defendant came ■to his pool hall about three-thirty o’clock in the afternoon, that up to then they had never had any trouble; that being in the back part of the hall, defendant called him to “come here, Jim,” and both then sat down on a “sofa;” that defendant said he had learned at the office that plaintiff had not paid the rent and asked for the keys. According to both, the first manifestation of anger occurred at this point. Defendant says, both were friendly up to that time; that he came by the pool hall on other business and went in casually and not on the special invitation or request given in the morning and with no thought of any difficulty. The defendant claims that plaintiff got angry on his demanding the keys and, after some hot words, tried to assault him with a pool ball and that he acted in self-defense. Plaintiff says he gave him the keys, “and, up to that time, I was not mad and if he was mad, I do not think he was;” that defendant became angry because he asked for his unpaid notes and thereupon assaulted him without any cause or provocation.
Under these facts, what material difference could it make whether plaintiff had sent word to defendant in the morning to come and get the keys or not. Such fact had no influence on the state of mind or the motive *522of either party and was wholly disconnected with the assault or cause thereof. If it was material to show that defendant went to the pool hall in a good humor and with no anger or ill will towards plaintiff and with no intent to assault him, such was admitted to be the fact and the case was tried on that theory. All direct evidence on this point was admitted. In fact, plaintiff was insisting that defendant was not angry at him and had no malice or ill will towards him and that there was no cause for any. We may grant that the evidence as to what plantiff said about sending for defendant was so immaterial that its admission would have been harmless, but that is far from saying that its exelu-' sion was so prejudicial as to compel a reversal of the cáse as to the punitive damages.
Nor does it seem to me that the evidence was offered to rebut malice in mitigation of exemplary damages as is now claimed. Its apparent purpose was to contradict and thus impeach the evidence on this point and was properly excluded by the trial court for the reason that it is not proper to contradict and impeach a witness on an immaterial matter. This is further shown by the fact that both plaintiff and defendant were allowed to testify fully as to all that passed between them as to the payment of the notes and rent and surrendering possession of the building, defendant affirming and plaintiff denying the incident of plaintiff’s sending word to defendant in the morning to come and take possession of the building. It was only when defendant sought to contradict plaintiff as to his telling a third party that he had done this, that the objection was made and sustained.
It appears to me that no reversible error was committed in so doing and I favor an affirmance of the entire judgment.