Second petition for rehearing denied Dee. 17, 1929.
On Second Petition eor Rehearing
(283 Pac. 15)
McBRIDE, J.Defendant in a petition for rehearing succeeded in convincing the court that fairness required the evidence offered by plaintiff and rejected by the court should be subjected to the test of cross-examination, and that this would require a reversal of the case. Under the decisions cited in our original opinion, the courts, while holding that such offer erroneously rejected would be treated on appeal as actually given, sent the matter back for retrial. This was largely because of the fact that in those states there was no such provision as that contained in section 3c of article YII of our amended constitution, which, under certain conditions, authorized the supreme court, notwithstanding error, to retry the ease and render such judgment as it deemed just. Under this provision, we were at first of the opinion that we would be justified in treating the offered testimony as having been actually given, but upon a petition for rehearing, to which by oversight the counsel for plaintiff were not requested to reply, we were of the opinion that, while we had the legal right to consider the testimony offered and rejected as actually given and predicate an opinion on that theory, such testimony constituted practically the pivotal point in the case, and as the witness, whose testimony was offered, was the plaintiff, and therefore deeply interested in the result, it would be fair to send the case back for retrial so that she might be cross-examined.
*349It might be said that, since it was the error of defendant’s counsel that produced the exclusion of the testimony, they ought to be compelled to abide the result, but the question of the admissibility of such testimony was a close one, and one upon which courts are divided. The objection to its admissibility was no doubt made in good faith by eminent counsel, and, while we felt compelled, by our view of the law, to disagree with them, we also felt that entire fairness would justify us in allowing them an opportunity to cross-examine a vital and interested witness. For this reason we concluded to give them an opportunity to do so notwithstanding the fact that the situation here was largely the result of the mistaken view of the law contended for by defendant’s counsel.
Now defendant’s counsel files a cost bill consisting of a large amount and contends that, as the case has been reversed and sent back for a new trial, it is entitled to recover those costs brought about in a large measure by its own mistake. This is turning the leniency of this court into an instrument of oppression in a condition of affairs never contemplated by any legislation, and we will not assent to the proposition, that a party may by his own wrong bring about a peculiar state .of affairs which, in the interests of justice, seem to require a new trial in spite of his error, and tax the costs of his mistake upon an innocent party by invoking a technical construction of the law.
We grant the defendant a new trial coupled with the condition that the costs abide the result of a final judgment, and our previous order will be so amended. This is the universal practice in the circuit courts on granting a new trial and in this anomalous instance it seems to be just. Reheaeing Denied.