Caddo Central Oil & Refining Corporation v. Boatright & Cheesman

• Decision Date: 04 June 1923
• Docket Number: 25
• Citation: 251 S.W. 874,159 Ark. 305
• Parties: CADDO CENTRAL OIL & REFINING CORPORATION v. BOATRIGHT & CHEESMAN
• Court: Arkansas Supreme Court

251 S.W. 874

159 Ark. 305

CADDO CENTRAL OIL & REFINING CORPORATION v. BOATRIGHT & CHEESMAN

No. 25

Supreme Court of Arkansas

June 4, 1923

Appeal from Lafayette Circuit Court; George R. Haynie, Judge affirmed.

Judgment affirmed.

Mahoney & Yocum and Searcy & Searcy, for appellants.

The court erred in refusing to grant a new trial on account of newly discovered evidence. The court erred in not allowing the introduction of the photograph showing the condition, the brush heaps, from which the fire originated, and in making the comment on it, which indicated that court's opinion of its weight. Note 114, A. S. R. 440; 1 Greenleaf on Evidence, § 439-h; 91 Ark. 179; general rule for admission, 106 S.W. 795; 118 N.Y. 77, 23 N.E. 35; 68 L. R. A. (Ore.) 477; 58 S.W. 270; 26 L. R. A. (Mass.) 430, 48 S.E. (S C.) 591; 41 A. 617. The evidence is insufficient to support the verdict. The verdict is excessive, is for $ 3,923.06 in excess of the maximum damage based on appellee's evidence.

W. W. McDonald and King & Whatley, for appellees.

No abuse of discretion in denying motion for new trial on ground of newly discovered testimony. 148 S.W. 271; 85 Ark. 33, 106 S.W. 203; 73 Ark. 528, 84 S.W. 728; 2 Ark. 133; 2 Ark. 346; Hinkle v. Lassiter, 142 Ark. 223; 144 Ark 58. No error in allowing the introduction of the photograph by witness who had not made them, and telling the jury that they could be considered for what they were worth. Appellant voluntarily withdrew the picture and refused to offer in evidence the others. If there was error, it was invited. 151 Ark. 35; 145 Ark. 303. Case in point 15 L. R. A (N. S.) 1162. See also 85 Ark 30; 98 Ark. 583; 142 Ark. 584; 9 L. R. A. (N. S.) 1007. The verdict is supported by the evidence. 96 Ark. 405, 131 S.W. 878; 17 Ark. 478; 92 Ark. 569, 123 S.W. 781; 87 Ark. 65, 113 S.W. 639; 89 Ark. 111, 115 S.W. 950; 74 Ark. 16; 82 Ark. 372, 101 S.W. 738. Verdict conclusive on appeal if there is any evidence legally sufficient to support it. 102 Ark. 200, 143 S.W. 92; 75 Ark. 111, 86 S.W. 1001; 78 Ark. 19, 3 S.W. 58; 73 Ark. 377; 84 S.W. 469; 89 Ark. 321, 116 S.W. 660; 99 Ark. 648, 139 S.W. 543; 145 Ark. 273; 144 Ark. 402. The verdict is not excessive.

OPINION

SMITH, J.

Appellees, plaintiffs below, compose a partnership doing business as Boatright & Cheesman, and for their cause of action alleged that in July, 1921, they were engaged in Union County in drilling for oil under a contract with an oil company on a lease known as the Pratt lease. That at the same time appellant, a corporation, the defendant below, was preparing to operate on an adjoining lease known as the Fitzgerald lease. That in drilling operations great care must be exercised to prevent disasters from fire, the character of the work making necessary the presence of inflammable material, a fact known to defendant and to all other persons in the drilling business; yet,. notwithstanding this knowledge which the defendant possessed, it did, on July 23, 1921, permit its employees to build and maintain a large fire on the Fitzgerald lease, presumably for the purpose of destroying underbrush, and it negligently permitted the fire to spread to the Pratt lease, and there ignited and partially destroyed plaintiffs' drilling rig, equipment and accessories, and so badly damaged the remainder as to render their practical use impossible. There was a prayer for the damages done the drilling outfit and for the loss of its use pending its repair.

Plaintiffs offered testimony which supported the allegation of negligence in allowing the fire to spread, and this notwithstanding the fact that notice was given by plaintiffs to the employees of defendant, having charge of the fire, of its danger. Plaintiffs also offered testimony as to the extent of the damages, the testimony being sufficient to sustain the verdict returned.

Defendant answered and denied negligence or responsibility for the fire, and denied the damages.

A verdict for $ 14,000 was returned in favor of the plaintiffs, and from the judgment pronounced thereon is this appeal.

The first assignment of error argued is that the trial court erred in refusing to grant a new trial on account of newly discovered evidence. This newly discovered evidence was to the effect that the employees of another oil company had set fire to the brush on a tract of land known as the Caddo Central lease, and that the fire which damaged plaintiffs originated there.

The record shows that the suit was commenced February 4, and that at the February term in March defendant was given sixty days in which to file answer, and this resulted in giving the defendant six months to prepare for trial, which occurred at the following term of court. Moreover, testimony was offered at the trial tending to show that the fire had originated in this manner, so that the newly-discovered testimony was merely cumulative, and we cannot therefore say the trial court abused its discretion in refusing to grant a new trial on this account. St. Louis S.W. Ry. Co. v. Goodwin, 73 Ark. 528, 84 S.W. 728; Arkansas Mut. Fire Ins. Co. v. Stuckey, 85 Ark. 33, 106 S.W. 203; McDonald v. Daniel, 103 Ark. 589, 148 S.W. 271; Hinkle v. Lassiter, 142 Ark. 223, 218 S.W. 825; New Cornoado Coal Co. v. Jasper, 144 Ark. 58, 222 S.W. 22.

As tending to show that the fire which damaged plaintiffs did not originate on the Fitzgerald lease, defendant offered in evidence a photograph which had been taken by a Mr. Taylor. The witness who offered the photograph in evidence was a Mr Doyle, who did not take it, but who did testify that it represented the appearance of the Fitzgerald lease on the morning after the fire when the picture was taken. Objection was made to the introduction of the photograph upon the ground that it had not been properly identified. In ruling upon the objection made, the court said there was no testimony to show that the picture was taken from the negative prepared by the photographer, and that the photograph was hearsay evidence, but that, as the witness had testified that the photograph resembled the place of the fire, he would allow the picture to be offered in evidence and be considered by the jury for what it was worth. Objection was made to this comment, whereupon the court said: "I want to make myself clear on that, gentlemen. The witness testified that this picture resembles the condition down there at the time he saw it on the evening of the 23rd, and the picture may go,...