Hathaway v. Williams

• Decision Date: 01 September 1909
• Citation: 75 A. 129,105 Me. 566
• Parties: HATHAWAY et al. v. WILLIAMS (two cases).
• Court: Maine Supreme Court

75 A. 129

105 Me. 566

HATHAWAY et al.

v. WILLIAMS (two cases).

Supreme Judicial Court of Maine.

Sept. 1, 1909.

Exceptions from Supreme Judicial Court, Washington County.

Actions by Melissa Hathaway and others against Gilman N. Williams. Actions to recover for the transportation of salt, dories, and merchandise from Gloucester, Mass. to Cutter, Me. Plea, the general issue in each case. Presumably the two cases were tried together although the record is silent on that point. Verdict for the defendant in each case. During the trial the plaintiffs offered certain evidence as "rebuttal evidence," and the same was excluded and the plaintiffs excepted. Exceptions overruled.

Argued before EMERY, C. J., and WHITEHOUSE, SAVAGE, SPEAR, KING, and BIRD, JJ.

C. B. & E. C. Donworth, for plaintiffs.

William R. Pattangall, for defendant.

BIRD, J. Actions of assumpsit brought for the recovery of freight, presumably tried together. In each case, the plea was the general issue, and the verdict was for the defendant. From the bill of exceptions it appears that one of the plaintiffs was called as a witness in rebuttal and asked by his counsel certain questions preliminary to showing an admission of liability by defendant made some months before the trial. Objection being made, the court intimated its belief that the inquiry was one calling for new matter. Whereupon counsel for plaintiff, differing with the court, stated that defendant had denied all liability, and that it was now proposed to show that he had admitted liability. The court offering to admit the testimony, if omitted by inadvertence, counsel for plaintiff disclaimed inadvertence and declared a preference, entertained from the beginning of the trial, to introduce the testimony in rebuttal rather than in chief. The court ruled that the testimony proposed to be offered should have been put in as part of plaintiff's case in chief and was not rebuttal. To this ruling, plaintiff excepted.

The bill of exceptions gives none of the evidence except that of one of the plaintiffs when called in rebuttal. It is therefore not certain upon the record whether the denial of liability by defendant mentioned by plaintiffs counsel was that made by his plea or by evidence given by him at the trial, especially in view of the fact that it does not appear that defendant was called as a witness in defense. It is doubtful if any question is properly before us. Jones v. Jones, 101 Me. 447, 450, 64 Atl. 815; Hix v. Giles, 103 Me. 439, 69 Atl. 692; Allen v. Lawrence, 64 Me. 175; Gilman v. N....