Adams v. Summers

• Decision Date: 18 January 1954
• Docket Number: No. 5-276,5-276
• Citation: 222 Ark. 924,263 S.W.2d 711
• Parties: ADAMS et al. v. SUMMERS et ux.
• Court: Arkansas Supreme Court

Page 711

263 S.W.2d 711

222 Ark. 924

ADAMS et al. v. SUMMERS et ux.

No. 5-276.

Supreme Court of Arkansas.

Jan. 18, 1954.

Francis T. Donovan and George F. Hartje, Conway, for appellants.

Guy H. Jones, Conway, for appellees.

MILLWEE, Justice.

On May 3, 1950, appellee, Mrs. H. V. Summers telephoned the '44 Taxi' service and requested a cab to take her to the Conway Memorial Hospital where she was employed as a practical nurse. Appellant Noel Moss, a cab operator, responded to the call in a car marked with '44 Taxi' on the door, and Mrs. Summers got into the front seat of the cab with the driver. She had thrown over her shoulders, but not buttoned, a large coat fastened at the neck with a pin; her arms were not in the sleeves of the coat. According to Mrs. Summers' testimony, upon arriving at the hospital she paid her fare to Moss, who reached over and opened the right front door, and just as she alighted Moss closed the door on her coat and drove off throwing her to the ground and dragging her some distance. While Moss denied that he closed the door on Mrs. Summers's coat, he admitted that he did not watch to see whether she had alighted safely before he drove off and stated that he knew nothing about the accident until he was called back to the hospital later.

On March 17, 1952, Mr. and Mrs. H. V. Summers brought this action for damages against appellant Jason Adams, doing business as '44 Taxi', and appellant Noel Moss as the agent, servant, and employee of Adams. The complaint alleged that Mrs. Summers had suffered various injuries; that she had formerly earned $200 per month as a practical nurse, and that by reason of her injuries she was permanently and totally disabled from performing any work or labor. Mr. Summers sought sums expended for medical care and hospital bills, and he asked damages for the loss of services of his wife.

From a judgment awarding Mrs. Summers $9,000 and Mr. Summers $1,000, appellants prosecute this appeal.

Appellants objected to various questions propounded by the attorney for appellee, on the ground that they were leading. Without setting out these questions, it is sufficient to say that the trial judge correctly ruled that they were posed in proper form.

Next appellants contend that error was committed in allowing the introduction of an advertisement published in a Conway newspaper in February, 1950, proclaiming that Jason Adams had purchased and assumed the management of the '44 Taxi Company', on the ground that the witness who testified concerning the ad had no personal knowledge of who inserted and paid for the ad and had not personally kept the newspaper's record book of advertising accounts from which he testified. In this connection the advertising manager of the newspaper testified that he solicited and handled all advertisements for the paper and that it was his duty to see that all ads were authorized. The permanent record of advertising accounts was kept under his supervision by another employee, and witness checked and verified the accounts at the end of each month. When witness was asked to state whether this record reflected the charge to Jason Adams in February, 1950, for the ad in question, appellants objected on the ground 'that Adams was not the owner of the 44 Taxi at that time.' Witness then testified, without objection, that the advertising record showed the charge to Jason Adams for the ad in question and that said account was paid in Jason's name on March 9, 1950. Witness further stated that he knew the account was correct and identified the ad in question as a part of the permanent records of the newspaper kept under his supervision, and it was introduced over appellants' objections and exceptions. In his testimony, Adams did not deny publication of the ad, or the truth of its contents, but merely stated that he did not remember publishing or paying for it.

Ark.Stats. § 28-928 recites: 'In any court of record of the State, any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event shall be admissible as evidence of such act, transaction, occurrence, or event, if made in regular course of any business, and if it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter. All other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but such circumstances shall not affect its admissibility.' This act is identical with the federal statute, 28 U.S.C.A. § 1732. In Hoffman v. Palmer, 2 Cir., 129 F.2d 976, affirmed 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645, it was held to be the intention of Congress, in enacting the statute, to bring the decisions of all federal courts into line with the modern rule to the effect that it is sufficient to show that an entry made in the regular course of business is contained in a book of regular entries maintained in the establishment without producing the particular person who made the entry or having him identify it. A similar rule prevails in many jurisdictions in the absence of statute. 32 C.J.S., Evidence, § 693b(1)(b). There is also clear precedent for the admission of records of established accuracy though the person making the record is not present, or his absence fully accounted for, in Bush v Taylor, 136 Ark. 554, 207 S.W. 226. Too, Mrs. Summers testified on direct examination that she knew of her own knowledge that appellant Adams operated the '44 Taxi' and that she had seen it advertised in the paper. We hold that the advertisement of Jason Adams to this effect, so notifying the general public and prospective passengers, was properly introduced in evidence.

Appellants also contend that a mistrial should have been declared because the matter of insurance was mentioned on two separate occasions at the trial. The first instance occurred when Mrs. Summers was asked to relate a conversation she had with Moss and she stated he wanted to know whether she expected him or the insurance [company] to pay. The court promptly sustained appellants' objection and admonished the jury to disregard the remark. Appellants saved no exceptions to the ruling and admonition of the court and did not ask for a mistrial. The second instance occurred in the following manner when Mrs. Summers was being cross-examined by counsel for appellants:

'Q. Do you remember giving a statement to Mr. Tankersly about this accident? A. Who is Mr. Tankersly?

'Q. Do you remember anyone coming out there and getting a statement from you or you signing a statement? A. No, sir.

'Q. You don't remember that? A. No, sir.

'Q. Didn't you say that my name is Effie Summers, I am 50 years of age, white, married, and reside at 531 Center Street----

'Mr. Jones: If your honor please, I don't know what this is all about.

'By the Court: Let her examine it. Is it purported to be a signed statement?

'Mr. Jones: Is this an insurance report, I want to see it----

'Mr. Hartje: I object to that statement and ask the court not to consider what he said here. I am going to ask the Court to pass this case until the next term of court.

'The Court: Ladies and gentlemen of the jury. The remark has been made here about insurance. I have admonished you once before and I want to admonish you again, not to...