E. O. Barnett Bros. v. Western Assur. Co.

• Decision Date: 11 December 1916
• Docket Number: (No. 38.)
• Citation: 191 S.W. 226
• Parties: E. O. BARNETT BROS. v. WESTERN ASSUR. CO. et al.
• Court: Arkansas Supreme Court

191 S.W. 226

E. O. BARNETT BROS. v. WESTERN ASSUR. CO. et al.

(No. 38.)

Supreme Court of Arkansas.

December 11, 1916.

Appeal from Circuit Court, Hot Spring County; W. H. Evans, Judge.

Suit by E. O. Barnett Brothers against the Western Assurance Company and others. From a judgment for defendants, plaintiff appeals. Judgment affirmed.

Oscar Barnett, of Malvern, for appellant. Mehaffy, Reid & Mehaffy, of Little Rock, for appellees.

HART, J.

Appellants sued appellees to recover on a fire insurance policy issued by the Western Assurance Company in their favor on a dwelling house situated in the town of Malvern. Appellees denied liability and set up several grounds of defense. The case was tried before a jury, which returned a verdict in favor of appellees. From the judgment rendered, appellants prosecute this appeal.

Counsel for appellants insist that the judgment should be reversed because the court erred in refusing a certain instruction requested by them. We need not set out this instruction, for we cannot consider this alleged error. Appellants have failed to abstract the other instructions given by the court. It is true they insist that no other instruction presenting the theory contained in this instruction was given; but this was a question for the court, and under the uniform and repeated rulings of this court we must have an abstract of the instructions given in order to see whether there was error in refusing to give an instruction asked by an appellant. We must therefore take their action as a waiver of the objection to the instruction. St. L., I. M. & S. Ry. Co. v. Boyles, 78 Ark. 374, 95 S. W. 783; De Queen & Eastern Ry. Co. v. Thornton, 98 Ark. 61, 135 S. W. 822; Reeves v. Hot Springs, 103 Ark. 430, 147 S. W. 445; Keller v. Sawyer, 104 Ark. 375, 149 S. W. 334.

It was also contended that the court erred in overruling appellants' motion to exclude the testimony of the witness A. H. Kelley. The record does not show that appellants asked the court to exclude the testimony of this witness, and, under the settled rules of the court, we cannot consider this assignment of error.

It is also insisted that the evidence does not warrant the verdict. In cases where it is insisted that the evidence is not legally sufficient to sustain the verdict, there must be an abstract of all testimony in the case. In this instance appellants have only given excerpts from the testimony of some of the witnesses and have not made an abstract of the testimony as required by rules of the court. We must therefore indulge the presumption that there was sufficient evidence to warrant the trial court in submitting the case to the jury. Queen of Arkansas Ins. Co. v. Royal, 102 Ark. 95, 143 S. W. 596.

It is also insisted that the court erred in the instruction given on behalf of appellees. Appellants did not make these alleged errors as grounds of their motion for a new trial, and, not having done so, they will be deemed to have waived them. Railways Ice Co. v. Howell, 117 Ark. 198, 174...