Barnett Bros. v. Western Assurance Co.

• Decision Date: 11 December 1916
• Docket Number: 38
• Citation: 191 S.W. 226,126 Ark. 562
• Parties: BARNETT BROS. v. WESTERN ASSURANCE CO
• Court: Arkansas Supreme Court

191 S.W. 226

126 Ark. 562

BARNETT BROS. v. WESTERN ASSURANCE CO

No. 38

Supreme Court of Arkansas

December 11, 1916

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

Judgment affirmed.

Oscar Barnett, for appellant

Argues the merits of the controversy which are not gone into by the court.

Mehaffy Reid & Mehaffy, for appellees.

1. Rule 9 has not been complied with. No abstract is filed. 75 Ark 571; 101 Id. 117. The instructions are not set out. 86 Ark. 104-9; 90 Id. 398, 406. The presumption is that the court properly instructed the jury. 75 Ark. 347; 88 Id. 449; 78 Id. 374; 95 Id. 108; 100 Id. 328; 75 Id. 571; 55 Id 547; 79 Id. 170; 95 Id. 108; 79 Id. 85; Ib. 427; 78 Id. 426; 76 Id. 138; 88 Id. 449; 89 Id. 439; 92 Id. 622. See also 95 Ark. 108; 79 Id. 85, 427; 78 Id. 428.

2. The motion for new trial does not show proper objections either to the evidence or court's charge.

OPINION

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; DeQueen & Eastern Ry. Co. v. Thornton, 98 Ark. 61; 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 grounds of their motion for a new trial and not having done so they will be deemed to have waived them. The Railways Ice Co. v. Howell, 117 Ark. 198, 174 S.W. 241; St. L., I. M. & S. Ry. Co. v. Jacks, 105 Ark. 347.

The bill of exceptions contains the recital that it is admitted by the court that the members of the trial jury came to the presiding judge after the trial was over and told him that they had rendered their verdict without regard to the law or the evidence and had done appellants an injustice in rendering a verdict against them.

Counsel for appellants set this up as one of their grounds for a new trial. It is well settled in this State that the affidavit of a juror or evidence of statements made after the trial by a juror is not competent to impeach a verdict in which he has joined. Griffith v. Mosley, 70 Ark. 244, 67 S.W. 309, and cases cited; Fain v. Goodwin, 35 Ark. 109; Pleasants v. Heard, 15 Ark. 403. The reason given is that...