Arkansas Amusement Corporation v. Ward

• Decision Date: 20 April 1942
• Docket Number: 4-6691,161
• Parties: ARKANSAS AMUSEMENT CORPORATION v. WARD
• Court: Arkansas Supreme Court

161 S.W.2d 178

204 Ark. 130

ARKANSAS AMUSEMENT CORPORATION v. WARD

4-6691, 161

Supreme Court of Arkansas

April 20, 1942

Appeal from Pulaski Circuit Court, Third Division; Lawrence C Auten, Judge on exchange; affirmed if remittiturs are entered.

Judgment reversed and cause remanded.

Tom F. Digby and Cockrill, Armistead & Rector, for appellants.

Sam Robinson and Fred A. Isgrig, for appellees.

HOLT J. HUMPHREYS, J., (dissenting).

OPINION

HOLT, J.

March 29, 1940, appellees, Fay Ward, Wayman Ward, her husband, and Melba Bryant, sued appellants for damages growing out of a collision between a panel-bodied truck owned and operated by Arkansas Amusement Corporation and a parked sedan automobile in which appellees were sitting at the time. A jury awarded Fay Ward $ 34,500 for personal injuries, $ 5,000 to her husband, Wayman Ward, for expenses following his wife's injuries and damages to his automobile, and $ 1,000 to Melba Bryant for personal injuries. From judgments on these verdicts comes this appeal.

For reversal appellants urge (1) that the proceedings in the trial court were void; (2) that error was committed in the introduction of certain X-ray pictures; (3) that they were entitled to a reversal on the ground of newly discovered evidence; (4) that the trial court erred in refusing a continuance and in refusing to require witness', Mrs. Strickland's, personal attendance at the trial; and (5) that the verdicts are excessive. We proceed to consider these assignments in the order in which they are presented. It is conceded that a case of liability was made for the jury as to each of the appellees.

I

Appellants' first argument for a reversal is that the proceedings in the lower court were coram non judice and that, therefore, the judgments against them are null and void. This argument is discussed under three separate headings, (a) that the March, 1941, term of the third division of the Pulaski circuit court lapsed on May 21; (b) that Judge Auten, judge of the second division of said court, had no authority to preside at the trial of this cause in the third division thereof; and (c) that the March, 1941, term of the third division of said court lapsed on May 12. These questions were not raised in the court below and are not mentioned in the motion for a new trial, but we assume that they may be raised here for the first time.

Arguments under headings (a) and (c) relate to an exchange agreement between Judge Waggoner of the Lonoke circuit court and Judge Utley of the third division of the Pulaski circuit court, in which it was agreed that Judge Waggoner should preside over Judge Utley's court for six days named in the agreement, to-wit: May 12, 13, 14, 15, 19 and, 20, 1941. It appears that Judge Waggoner did not appear and open the third division court on May 12, but that same was opened by Judge Auten of the second division who adjourned the court to May 13, when Judge Waggoner did appear, opened court and held court on the other days named in the agreement, and continued to hold said court on May 21, 22 and 26. Now, the contention is that, because Judge Waggoner did not appear on May 12, the first day of his exchange agreement, the term lapsed for the reason no other judge of the Pulaski circuit court could open said division or adjourn same. Also that because Judge Waggoner held said court on days after May 20, days not covered by his exchange agreement, the proceedings on said extra days are void and the term lapsed. Whether appellants are right or wrong in these contentions is not now decided, because they have not shown any interest in the court proceedings on these days. Their cases were not tried by Judge Waggoner on any of the days named or at all. They were tried before Judge Auten of the second division of said court, and, unless the latter had no power or authority to try these cases, appellants certainly would have no right to question or upset the proceedings had before Judge Waggoner while presiding over the third division of said court.

The record shows that these cases were docketed in the third division and that they were tried before Judge Auten of the second division with the third division jury, and, while the record does not show it, the cases were tried in the second division courtroom. So, it appears to us that the effect of what happened was that the cases were transferred by agreement to the second division for trial, and were there tried and the record thereof made in the third division records. This action did not render the judgments void, for, by § 8 of Act 64 of the Acts of 1913 which provides for an additional circuit judge of the 6th circuit and regulates the practice in the Pulaski circuit court, it is provided that: "It shall not be reversible error that any case is tried in a division to which it has not been specially assigned." These cases, having been tried before Judge Auten of the second division, cannot, therefore, be reversed because they were tried in a division to which they had not been specially assigned, regardless of whether the third division may or may not have been in session.

II

Appellants contend that the trial court erred in permitting, over their objection, the introduction of certain X-ray pictures of Fay Ward made at the Baptist Hospital and exhibited and interpreted by Dr. Hayes.

It appears that Dr. Hayes, in the course of his testimony on behalf of appellees, was permitted to place the X-ray pictures in question in a shadow box and testify and interpret from them. While he did not make the pictures himself, he identified them as having been made in his presence and under his direct supervision. In these circumstances, we think no error was committed in their introduction.

In Prescott & Northwestern Railroad Co. v. Franks, 111 Ark. 83, 163 S.W. 180, this court held (quoting headnote No. 3 from the Arkansas Reports): "An X-ray photograph, showing an injury to plaintiff, is admissible in evidence, when a practicing physician testifies that he was present when the same was taken, and identifies the photograph introduced in evidence as the one taken of plaintiff."

III

Appellants next argue that they are entitled to a reversal on the ground of newly discovered evidence. The alleged newly discovered evidence consisted of affidavits, and testimony at the hearing on the motion, having for their purpose the impeachment of appellees' witnesses, Courtney and Montgomery. The affidavits tended to show that neither of these witnesses was near the scene of the accident when it occurred and that they had sworn falsely.

From one of our earliest cases, that of Robins v. Fowler, 2 Ark. 133, the rule has been well established that in order to the success of a motion for a new trial, on the ground of newly discovered evidence: "1. The testimony must have been discovered since the trial. 2. It must appear that the new testimony could not have been obtained with reasonable diligence on the former trial. 3. It must be material to the issue. 4. It must go to the merits of the case, and not impeach the character of a former witness. 5. It must not be cumulative."

After a careful review of the record on this point, we are convinced that no error was committed in denying the motion, for the reason that the alleged newly discovered evidence was in the nature of impeachment testimony only. The granting or refusing such motion is left to the sound, discretion of the trial court, and unless it appears that this discretion has been abused, we will not reverse here.

In Bradley Lumber Co. v. Beasley, 160 Ark. 622, 255 S.W. 18, where the affidavits tended to show that certain witnesses, who testified that they were present when a certain happening occurred, were in fact not present and had sworn falsely at the trial, this court said: "Moreover, the testimony of Johnson and his wife on the matter set out in the affidavits was in the nature of impeachment testimony of the Smiths (§ 4187, C. & M. Digest); and it has been held by this court that newly discovered evidence which goes only to impeach or discredit a witness is not ground for a new trial. Murphy v. Willis, 143 Ark. 1, 219 S.W. 776; Hayes v. State, 142 Ark. 587, 219 S.W. 312; Plumlee v. St. L.-S.W. Ry. Co., 85 Ark. 488, 109 S.W. 515; Tillar v. Liebke, 78 Ark. 324, 95 S.W. 769; Jones v. State, 72 Ark. 404, 80 S.W. 1088; Minkwitz v. Steen, 36 Ark. 260."

In Arkansas P. & L. Co. v. Mart, 188 Ark. 202, 65 S.W.2d 39, this court said: "This court has many times held that motions for a new trial on account of newly discovered evidence are addressed to the sound discretion of the trial court, and that this court will not reverse for failure to grant unless an abuse of such discretion is shown. Forsgren v. Massey, 185 Ark. 90, 46 S.W.2d 20."

IV

It is next argued that error was committed in refusing a continuance of the cause and in refusing to require Mrs. Strickland's personal attendance at the trial. It appears from the record that at the time of the trial Mrs. Strickland resided in Searcy, Arkansas, and was in a delicate condition on account of impending childbirth and physically unable to appear. Her testimony was taken on interrogatories and cross- interrogatories and introduced at the trial.

Appellants rely upon § 5220 of Pope's Digest which is as follows: "Where it is made to appear, by the affidavit of a party and the written statement of his attorney, that the testimony of a witness is important, and that the just and proper effect of his testimony cannot, in a reasonable degree, be obtained without an oral examination before the jury, the court may, at its discretion, order the personal attendance of the witness to be compelled, although such witness may otherwise be exempt from personal...