Herrin, Lambert & Co. v. Daly

• Citation: 80 Miss. 340,31 So. 790
• Parties: HERRIN, LAMBERT & CO. v. JOHN PATRICK DALY
• Decision Date: 14 April 1902
• Court: United States State Supreme Court of Mississippi

31 So. 790

80 Miss. 340

HERRIN, LAMBERT & CO. v. JOHN PATRICK DALY

Supreme Court of Mississippi

April 14, 1902

March 1902

FROM the circuit court of Pearl River county. HON. THADDEUS A WOOD, Judge.

Daly the appellee, was plaintiff in the court below; Herrin Lambert & Co., a copartnership, appellees, were defendants there. From a judgment for $ 1,500 in plaintiff's favor defendants appealed to the supreme court.

The opinion of the court sufficiently states the facts upon which the case was resolved.

Reversed and remanded.

Bowers, Chaffe & McDonald, for appellant.

The action of the trial judge in hearing evidence touching the indemnity policy is an error which on its face and without reference to anything else should reverse the case. It was clearly irrelevant and incompetent. It shed no light on the issue. Can any one conceive how proof that defendants had, or had not, protected themselves with an accident policy enlightened an inquiry as to whether they were negligent in the construction of their mill, or in failing to provide a sufficient number of hands?

If your honors decide that to avail oneself of an objection to incompetent testimony that objection must be repeated to every question, and to every phase and detail of the inquiry, nisi prius trials will be fraught with interminable disorder, records encumbered and time absorbed with numberless and useless repetitions.

Shannon & Street and Woods, Fewell & Fewell, for appellee.

The only question in the case which is thought to be debatable is this, was the action of the court in admitting evidence showing that a surety company had bound itself to pay any damages which were shown to have been sustained in this, or any other personal injury case, in an amount not exceeding fifteen hundred dollars?

Our contention is that if the evidence was first incompetent that objection cannot now be availed of by reason of the fact that the written contract was produced and put in evidence at the instance of defendant's counsel, and was not objected to, and all objection to the introduction of the evidence was thereby waived. But if there had been error it was not reversible error. It was harmless error because all issues of fact were found by the jury in favor of plaintiff and against defendant, and a verdict for some amount had necessarily to follow the findings of the jury on the facts. This pitiful verdict for $ 1,500 was far less than the...