Barrett v. Berryman

• Decision Date: 05 March 1917
• Docket Number: 215
• Citation: 193 S.W. 95,127 Ark. 609
• Parties: BARRETT v. BERRYMAN
• Court: Arkansas Supreme Court

193 S.W. 95

127 Ark. 609

BARRETT v. BERRYMAN

No. 215

Supreme Court of Arkansas

March 5, 1917

Appeal from Pope Circuit Court, A. B. Priddy, Judge; affirmed.

Judgment affirmed.

R. W Holland, for appellant.

1. Instructions should have been given to the jury to return a verdict for the defendants. This was not an original promise or obligation, but a collateral undertaking not in writing and void under the statute of frauds. 12 Ark. 174; 102 Id. 435; 88 Id. 592.

2. Plaintiffs should have been requested to file an itemized account.

3. A great preponderance of the evidence is against the verdict. It should be set aside for the reason that there is not sufficient proof to sustain it.

4. Plaintiffs have a judgment for this debt against coal company. Therefore they cannot recover against the Barretts.

5. The books of account should have been exhibited. They were the best evidence.

R. B Wilson, for appellee.

1. This was an original undertaking. 40 Ark. 429; 102 Id 438.

2. The copy of the account was attached to the complaint as required by the court.

3. Two companies or parties can be sued for the same debt and two judgments obtained, but only one satisfaction.

4. Appellees were not required to produce their books at the proper time. The suit had been pending a year when the motion was made.

5. The instructions are not complained of--they embody the law.

OPINION

HUMPHREYS, J.

W. F. McBride, an employee of the Arkansas Anthracite Coal Company, was seriously injured on the 6th day of August, 1914, while working in the mine of said company. All the stock in the corporation was owned by appellants and Thos. M. Barrett. W. H. Barrett, Sr., was president and general manager, and W. H. Barrett, Jr., was secretary-treasurer and superintendent of said company. Appellees are physicians and surgeons and own and operate a hospital in Russellville, Arkansas. Prior to the institution of this suit, W. F. McBride prosecuted a suit for damages against the Arkansas Anthracite Coal Company and recovered judgment against it for $ 16,500.00. There is evidence tending to show that this judgment included hospital and surgeon's fees, and evidence tending to show to the contrary. Efforts were made to collect the judgment, which failed. Appellees brought this suit on January 2, 1915, against the Arkansas Anthracite Coal Company, Thos. M. Barrett, W. H. McBride and appellants for $ 750.00 covering the following items:

August 6 to Nov. 20:

To Hospital Room and Floor Nurse

$ 300.00

To Special Nurse

150.00

To Medical Services

300.00

The suit was dismissed as to W. F. McBride and Thos. M. Barrett and judgment was rendered against the other defendants. On motion the judgment against the Barretts was set aside and they filed an answer denying that they, or either of them made any promise to the appellees to pay the medical and hospital charges of W. F. McBride. At a later date they filed an amended answer as follows:

"Come now the defendants W. H. Barrett, Jr., and W. H. Barrett, Sr., and make this their amended answer in the above entitled cause.

The said W. H. Barrett, Sr., and W. H. Barrett, Jr., plead as a special defense herein that they each and both of them are relieved of liability to plaintiffs for the sum of $ 750.00 as prayed for in plaintiffs' complaint or any other sum for the reason that plaintiffs seek to hold them, the said defendants, liable in their verbal promise to stand good for the debt of another, and that they claim this their defense for the reason that the said promise on which plaintiffs seek to hold them is within the statute of frauds."

The cause was tried on the issues joined and a verdict returned and judgment rendered in favor of appellees against the appellants for $ 750.00. A motion for new trial was filed and overruled. Proper steps were taken and the cause is here on appeal.

It is insisted that the judgment should be reversed for the reason that the trial court overruled appellant's motion to dismiss the suit for failure to attach an itemized account to the complaint. If such contention were tenable, no exception was saved to the court's ruling in overruling the motion.

Appellants also insist that the judgment should be reversed because they say "a great preponderance of the evidence is against the verdict." This contention is not tenable in suits at law. If there is any substantial, legal evidence to sustain the verdict of the jury, it will not be disturbed by this court on appeal.

Appellants insist that the judgment should be reversed because the trial court refused, when requested by appellants, to require appellees to produce their books of account. The request for the books was made during the progress of the trial and when Dr. Smith was being cross-examined. The record does not disclose where the books were at the time of the trial nor how long it would have taken to get them. The account contained only three items, and appellee, Smith, stated that the account was a correct copy of the books. None of the items of the account were questioned except in a general way. It is argued by appellants that the books would have thrown much light on the real issue in the case; that is, that the entry would have disclosed whether the account was entered in the book against W. H. Barrett, Sr., and W. H. Barrett, Jr. On proper application before the trial began, appellants could have secured an order to inspect the books. They might have used the process of subpoena duces tecum. As a general rule, the court's business is too important to suspend proceedings while witnesses are sent for books, papers, etc. The record fails to show that the rights of appellants were in any way prejudiced by the refusal of the court to stop the trial and send for the books. The record does not disclose even a hint by appellants prior to this time that they desired to inspect the books. They should have shown both diligence and prejudice before asking this...