Dissenting Opinion.
Reinhard, C. J.It is impossible for me to agree with the conclusion reached in this case. The general principle -enunciated in the opinion, that evidence of the character rejected is proper in mitigation of damages, I believe to be sound. The appellant sought to prove by a witness *608that the appellee’s affliction was much greater than she admitted it to be. This was proper for two reasons:
First. To inform the jury, of the extent of her physical infirmities as an extenuating circumstance for his failure to perform the contract.
Second. To contradict the appellee who, when on the. stand, had denied having more than three convulsions during the month of November, while it was proposed hr show by the witness that she had had as many as fifty.
To say that the exclusion of such testimony is harmless, would be invading the province of the jury, who alone are competent to judge of its weight, and the force and effect to be given it. Even if the evidence was cumulative, the appellant had the clear right to make his case as strong as he could, and it was not within the discretion of the court to say he had gone far enough. Indeed, the court did not undertake to do a thing of this kind. It placed its ruling upon the sole ground that the evidence was not competent under the pleadings. This shows that the court was not regarding itself as exercising a sound discretion in excluding testimony of this character, because enough of tho same class had been already introduced.
My opinion is that the judgment should be reversed upon the ground of the improper exclusion of this testimony.
Ross, J. — I concur in the dissenting opinion of Judge Reinhard.
Filed February 17, 1893.