
    Christina Krieger, appellee, v. Charles Von Busch et al., appellants.
    Filed May 1, 1915.
    No. 18086.
    1. Appeal: Conflicting Evidence. A verdict on substantially conflicting proof will not be set aside, where it is supported by sufficient competent evidence.
    2. —: Exclusion of Evidence: Offer of Proof. “The ruling of the trial court in sustaining an objection to a question put to one’s own witness cannot be reviewed where the complaining party has failed to make an offer of the testimony indicating what he expects to prove by the witness, in response to.the question propounded and overruled.” Barr v. City of Omaha, 42 Neb. 341.
    Appeal from the district court for Adams county: Harry S. Dungan, Judge.
    
      Affirmed.
    
    
      C. R. Stasenka, B. V. Kohout and McCreary & Danley, for appellants.
    
      J. W. James, contra.
    
   Rose, J.

This is an action to recover $172.26 for services performed by plaintiff as a domestic servant for defendants from October 8, 1908, until June 10, 1909, at $3.50 a week, including $20 for traveling expenses between plaintiff’s home at Madison, South Dakota, and the home of defendants near Campbell, Nebraska. The answer contains a general denial and a plea of settlement and payment. Plaintiff recovered a verdict and a judgment for the full amount of her claim and interest. Defendants have appealed.

The principal controversy on appeal appears to involve the sufficiency of the evidence to sustain the verdict. It is established without controversy that plaintiff performed the services for which she claims compensation. There is evidence tending to- show that defendants agreed to pay her $3.50 a week and her traveling expenses. On behalf of defendants there is proof that plaintiff offered to make them a visit and to assist them for her railroad fare, and that they settled and paid her claims. On these issues there is a substantial conflict in the testimony, with sufficient evidence to sustain the verdict. The questions of fact were therefore settled by the jury.

One of the assignments relates to the exclusion of testimony in answer to questions propounded to a witness for defendants, but the record does not contain an offer of proof essential to an affirmative showing of error. It follows that the judgment cannot be reversed on this ground. Barr v. City of Omaha, 42 Neb. 341; Blondel v. Bolander, 80 Neb. 531.

Complaint is made of other rulings on evidence, but in these respects reversible error is not shown.

Affirmed.

Barnes, Fawcett and Hamer, JJ., not sitting.

Sedgwick, J.,

concurring.

The rule stated in the second paragraph of the syllabus is apparently applicable in this case, because it does not appear from the record that the questions overruled call for evidence that is relevant and material to the issue that was being tried. The rule has been applied in many cases in this court, including Mathews v. State, 19 Neb. 330 ; Masters v. Marsh, 19 Neb. 458; Lipscomb v. Lyon, 19 Neb. 511; Yates v. Kinney, 25 Neb. 120 ; Sellars v. Foster, 27 Neb. 118; Mordhorst v. Nebraska Telephone Co., 28 Neb. 610; Barr v. City of Omaha, 42 Neb. 341; Blondel v. Bolander, 80 Neb. 531, and perhaps others.

It is important to simplify the trial as far as possible. If incompetent evidence is allowed before the jury, there is always danger of an unjust verdict. When such evidence is inadvertently admitted by the court, the best that can be done is to strike it out and instruct the jury to disregard it. But tliis does not always remedy the error. The impression so wrongfully made upon the minds of the jurors may unconsciously influence their estimation of the competent evidence before them. If counsel are allowed to put before the jury irrelevant or immaterial evidence, tbe real issue may be so incumbered as to confuse even trained and experienced minds. All sucb evidence tends to distract tbe mind and may cause neglect of tbe real question to be investigated. Tbe'trial court should allow only sucb evidence as tends legally to .establish tbe issue presented. Tbe examining attorney should make it appear to tbe trial court that tbe question be propounds to a witness calls for proper evidence. Unless this clearly appears, be cannot complain that tbe witness is not allowed to answer. But tbe rule should not be construed to mean that tbe testimony expected of tbe witness must necessarily be first detailed before tbe court.

In Mathews v. State, supra, tbe reason for tbe rule is correctly stated, to enable tbe court “to determine whether or not tbe evidence is pertinent.” This is the only purpose of tbe rule, and tbe only justification for its existence. Opposing counsel cannot, by objecting, require tbe examining attorney to “make an offer of testimony indicating what be expects to prove” with each question asked of a witness. When tbe question itself- shows that its answer would be proper evidence, that is, when tbe condition of tbe evidence is sucb that tbe court can see that tbe question is a proper one, under tbe issues, no offer of proof is necessary. Tbe rule is more often applied in tbe direct than in tbe cross-examination of a witness. In cross-examination it will generally appear from tbe question itself whether tbe answer will be relevant to tbe direct examination, or will tend to explain or qualify tbe direct testimony of tbe witness, and in general more latitude is allowed in tbe cross-examination of a witness. When a rule of practice is announced in general terms, as in Mathews v. State, supra, care should be taken to limit it to its proper application. If improperly applied, sucb rules sometimes become more and more technical in application until they become a trap for tbe unwary, instead of beneficial for tbe promotion of justice. I think this has been tbe result in some of tbe later cases, and that tbe decisions in those cases ought to be explained and modified.  