Arkansas Shortleaf Lumber Co. v. Wilkinson

• Decision Date: 20 June 1921
• Docket Number: 56
• Citation: 232 S.W. 8,149 Ark. 270
• Parties: ARKANSAS SHORTLEAF LUMBER COMPANY v. WILKINSON
• Court: Arkansas Supreme Court

232 S.W. 8

149 Ark. 270

ARKANSAS SHORTLEAF LUMBER COMPANY v. WILKINSON

No. 56

Supreme Court of Arkansas

June 20, 1921

Appeal from Grant Circuit Court; W. H. Evans, Judge; reversed.

Judgment reversed and cause remanded.

Mike Danaher and Palmer Danaher, for appellant.

1. There was misconduct of counsel for plaintiff in examining veniremen. The statements made were not true, and were prejudicial and resulted in an excessive verdict. 104 Ark. 1 9; 38 Cyc. 1479.

2. There was also misconduct of counsel for appellee in his opening statement to the jury which constituted reversible error. 81 Ark. 231. Counsel have no right to introduce matters foreign to the issues before the jury. 38 Cyc. 1500; 43 A. L. R. 146, 451; 41 N.H. 325; 9 Am. St. Rep. 560.

3. It was error to admit testimony as to mental anguish of plaintiff and as to appellee's family. Such testimony was not admissible. 54 Ark. 354. Mental suffering cannot be proved directly by any one except the sufferer. 7 Allen (Mass.) 118-124; 169 Ala. 131; 53 So. Rep. 80. Appellee was also permitted to state that he was worried because he did not know how he was "going to get by with his little children." This was clearly inadmissible. 89 Ark. 58. Mental suffering from apprehension as to the future of one's family is not the natural results of the injury but depends upon pecuniary conditions and social relations of his family in the future, and this was a direct appeal to the sympathy of the jury, and prejudicial. 69 Tex. 694; 7 S.W 77; 57 Kan. 40; 45 P. 60; 79 N.E. 685. Testimony as to the size of his family, and that he was its sole support, and that his wife was dead, etc., was clearly inadmissible. 74 Ark. 326; 100 Id. 535.

4. Testimony of witness that he relied on inspection was erroneous and prejudicial and was not cured by the court's remarks that it was not competent. 60 Ark. 76; 100 Id. 116. The testimony was wholly irrelevant. The testimony as to the reliance of the witness or appellee upon the inspection of others was not admissible. 22 C. J. 617; 97 Ill.App. 7; 12 N.Y.S. 306.

5. The testimony of the optometrist as to the condition of plaintiff's eye and the chance of improvement was incompetent, as he was not a physician or oculist and was not an expert, and his opinion was worthless and inadmissible.

6. Doctor Crump's testimony as to what would happen to the other eye and plaintiff's condition if the other eye were destroyed, was mere conjecture and inadmissible, as was also the testimony of W. H. Walker, the superintendent. Testimony regarding similar accidents is inadmissible. 58 Ark. 154; 130 Id. 491; 99 N.W. 114; 40 Cyc. 2420.

7. Improper questions were asked Doctor Jones. A question in the form of an assertion suggests an affirmative answer and is objectionable. 40 Cyc. 2425. See, also, 40 Cyc. 2433 and 2517; 15 Ark. 252.

8. Testimony as to the price of lumber was palpably irrelevant and hormful.

9. Appellee's testimony that he relied on another inspection and thought there was no danger. This was by the use of glaringly leading questions, and was prejudicial and error. 97 Ill.App. 7; 12 N.Y.S. 306.

10. Testimony as to what would have happened under circumstances which did not really exist was not admissible. 22 Cyc. 514.

11. A question answered is properly excluded. 40 Cyc. 2437. Leading questions are improper and should not be allowed. 40 Cyc. 2422.

12. Hearsay evidence is not admissible. 22 C. J. 199.

13. The corporate existence of appellant was not proved. None of the testimony introduced by appellee to prove that appellant was a foreign corporation was admissable or sufficient for that purpose. 14 Cyc. 174. Our courts do not take judicial knowledge of the laws of other States. 71 Ark. 177. The evidence was wholly insufficient to show the existence of a foreign corporation.

14. The court erred in its instructions to the jury, both in giving and refusing those asked. No. 1 was obscure and unintelligible and it further assumes certain facts as proved. 38 Cyc. 1600. It should have left it to the jury to find the facts, and not assumed them as true 38 Cyc. 1658 and Arkansas cases cited. No. 2 was also error, as it makes the master liable as an insurer of the safety of an employee and imposes on him an impossible degree of care, ignoring the rule that he is required to exercise only ordinary care. 26 Cyc. 1102. The defenses of appellant were wholly ignored. 17 C. J. 1061.

15. It was error to give the third request for appellee. 99 Ark. 69-76. Also error to give the fifth instruction for plaintiff. The definition of contributory negligence on part of appellant is error.

16. The seventh request of appellee was error, as it singles out and unduly emphasizes a proposition of law. 75 Ark. 76-86; 38 Cyc. 1680.

17. Instruction No. 8 for appellee was a peremptory instruction and should not have been given. C. & M. Digest, § 7144; 63 Ark. 477-484. The interpretation of the language of statutes is for the court, and not for the jury. 102 Ark. 205-7.

18. The ninth instruction for appellee was palpable error. It ignored the facts that only the present value of the reduction of future earnings should be awarded. 17 C. J. 906. Nor did it correctly state the rule as to the assumption of risk. 26 Cyc. 1204. And it further placed the burden of proof on appellant to show that appellee knew and appreciated the dangers, while the contrary is the rule--that the servant is presumed to know the ordinary risks of his employment. 82 Ark. 11, 17.

19. The eleventh instruction for appellee was error. Appellee assumed the risk.

20. The appellant's instructions correctly stated the law, and it was error to refuse them. 26 Cyc. 1092, 1248, 1297; 60 Ark. 582; 5 Thompson on Negl. (12 ed.) 69, par. 5417; 32 So. Rep. 15. It was also error to modify instruction No. 11. 32 Cyc. 745.

21. It was error to refuse appellant's thirteenth request. A servant assumes all obvious risks of the work in which he is employed. 118 Ark. 304; 95 Id. 560. It was error to modify it as the court did. It is the absolute duty of a servant to observe patent defects. 58 Ark. 125-130. See, also, 41 Ark. 542-9; 81 Id. 346; 101 Id. 201; 135 Id. 480- 9.

22. Appellee assumed the risk of this accident, and the court erred in its instructions, given and refused. 135 Ark. 480-9; 26 Cyc. 1236; Ib. 1202-3; 97 Ark. 486-9.

23. The verdict is not sustained by the evidence. 70 Ark. 385-6.

T. M. Nall and Rowell & Alexander, for appellee.

1. The opening statement of counsel for appellee was not prejudicial.

2. The testimony as to mental anguish of appellee was withdrawn by the court upon objection. 100 Ark. 122.

3. The testimony of witness that he relied on inspection was not error.

4. Appellant's objections to the testimony of the optometrist are not well taken. He was qualified to treat the vision of the eye, and he was duly licensed and had been on the State board, and his profession is recognized in forty-six States, and numerous other countries. He was a competent witness under our decisions.

5. The testimony as to other accidents was invited by questions asked by appellant, and if error was invited error. 126 Ark. 615; 137 Id. 228. The decisions cited by appellant do not control this case.

6. No error in the questions asked Doctor Jones.

7. There was no error in the testimony as to the price of lumber. There was a dispute as to the grade of lumber.

8. Appellee's testimony that he relied on another inspector and thought there was no danger, was not error. The cases cited by appellant are not in point nor parallel.

9. Testimony as to what would have happened in circumstances which did not really exist was not error here.

10. No hearsay evidence was admitted, as the record shows.

11. The corporate existence of appellant was properly proved. 131 Ark. 273; 114 Id. 344; 134 Id. 23; 227 S.W. 609; 140 Ark. 135; 95 Id. 588.

12. Appellant has not properly set out the instructions in his abstract or brief. We do so, and no reversible error appears. On the whole, they state the law of this case. 93 Ark. 564; 109 Id. 288; 101 Id. 197; 126 Ark. 449.

13. The judgment of a lower court will not be reversed upon the weight of evidence if there be any legal evidence to support it; there must be a total failure of evidence to sustain it. 15 Ark. 540; 97 Id. 87; 97 Id. 442.

The question of contributory negligence was for the jury, and their verdict, on proper instructions as here, is final. 143 Ark. 106. Similar cases to this are found in 102 Ark. 562; 85 Id. 503; 93 Id. 88.

The act of 1907 applies to all corporations and the burden is on defendant to prove contributory negligence. 92 Ark. 502; 174 S.W. 222. It was for the jury to say how the injury occurred, and they have settled it by their verdict. 103 Ark. 476; Ib. 61.

14. The verdict is not excessive, and the evidence sustains it. 107 Ark. 512.

OPINION

WOOD, J.

The appellant is a Missouri corporation operating sawmills in the State of Arkansas. Appellee was in its employ in the capacity of a "ripsawyer." The appellee's duties required him to take from a table near by boards of lumber that had been placed thereon and to feed these boards to the ripsaw; that is, to push the boards against the saw in order to rip them into narrow boards. When the saw thus passed through the boards, they were taken out by an employee at the other end who was called the "tailer." The boards handled by the appellee were first conveyed on endless chains from the downstairs of the plant, and as they reached the second floor they were taken off the conveyors by a negro employee called a "passer" or "puller," and were placed on a table to be handled by the appellee.

On the 30th of March, 1920, about 2 o'clock p. m., the appellee had pushed a board to the saw...