Reagan Equipment Co. v. Vaughn Gin Co., 53545

• Decision Date: 26 January 1983
• Docket Number: No. 53545,53545
• Citation: Reagan Equipment Co. v. Vaughn Gin Co., 425 So.2d 1045 (Miss. 1983)
• Parties: REAGAN EQUIPMENT COMPANY v. VAUGHN GIN COMPANY.
• Court: Mississippi Supreme Court

Page 1045

425 So.2d 1045

REAGAN EQUIPMENT COMPANY v.VAUGHN GIN COMPANY.

No. 53545.

Supreme Court of Mississippi.

Jan. 26, 1983.

Gerald, Brand, Watters, Cox & Hemleben, Richard T. Starrett, Jackson, for appellant.

Henry, Barbour & DeCell, William H. Barbour, Yazoo City, for appellee.

Before PATTERSON, C.J., and ROY NOBLE LEE and PRATHER, JJ.

PATTERSON, Chief Justice, for the Court:

In September of 1979, Sam Dixon, President of Vaughan Gin Company, appellee, contacted Reagan Equipment Company, appellant, concerning mechanical problems he was experiencing with a large gin engine.Bobby Nichols, service manager at appellant's Jackson office, sent a repairman to inspect the engine and it was determined an extensive overhaul was necessary to make it serviceable.

Dixon came to the appellant's office to discuss the cost of repairs and after inspecting some used engines and considering their cost, authorized the overhaul of his engine.He testified the appellant told him he could repair the engine for around $12,000.This was contradicted by Nichols who stated Dixon was not given a cost estimate because this was time consuming and Dixon needed the engine for the approaching ginning season.In any event Dixon authorized the engine's overhaul and additional repairs on the engine starter and clutch for an additional $2400 and overtime totaling $1,500.The engine was repaired and returned to Dixon with a bill for $34,438.93.After no payment was forthcoming, appellant sought a judgment for the repairs and a lien on the engine.The appellee admitted owing $15,900, but denied any obligation in excess of that sum.

During trial Reagan attempted to introduce the bill and its reasonableness into evidence through Nichols, the service manager.The court would not permit its introduction by Nichols because the invoice was prepared in appellant's home office in Harvey, Louisiana.The judge reasoned a witness from the home office was essential to its introduction, however, Dixon was called by the appellant as an adverse witness and gave evidence to the amount of the bill whereupon it was introduced.

Nichols was then recalled and interrogated concerning the amount of the bill and its reasonableness.The appellee again objected stating that Nichols did not prepare the bill and therefore could not testify as to its amount or reasonableness.Upon the objection being sustained Reagan made a proffer through Nichols who gave testimony of similar bills for the type and extent of the work performed and it was his opinion the repairs to the engine were reasonable and necessary.

After lunch Reagan called one of its Jackson office employees as a witness, whereupon Dixon requested permission to voir dire the proposed witness concerning a possible violation of "the rule."Alexander, the proposed witness, testified he had lunch with Reagan's counsel and Nichols during which he discussed with the attorney his upcoming testimony concerning the introduction of the invoice into evidence.He testified he did not hear Nichols testify and that his testimony was not discussed.After this testimony, upon motion of Dixon, Alexander was excluded as a witness because "the rule" had been violated.

Reagan then rested and Dixon moved to strike the evidence and dismiss the declaration on the ground that plaintiff did not establish that he was qualified and licensed to do business within the state, and there was no evidence presented as to the reasonableness of the bill charged to the defendant.Reagan responded, stating that an affidavit attached to the declaration evidenced the reasonableness of the repairs and requested permission to reopen the case so he might introduce a Certificate of Authority from the Secretary of State that appellant was licensed and qualified to do business in Mississippi.The court denied appellant's request to reopen and granted defendant's motion for dismissal with prejudice.Moreover, although the declaration was dismissed, appellant was granted a judgment in the amount Dixon admitted owing in his answer, $15,900.

Reagan assigns as error the court's refusal to allow it to reopen its case to introduce the Certificate of Authority from the Secretary of State evidencing it was licensed and qualified to do business in Mississippi.Undoubtedly, the opportunity to reopen should be granted when the opposing party would not be surprised and when a refusal would deprive a litigant of the opportunity to introduce material evidence.

In Nelson v. Home Ins. Co., 353 So.2d 763, 765(Miss.1977), we cited Marshall v. Oliver Electric Manufacturing Company, 235 So.2d 244(Miss.1970), wherein this Court held:

As a general rule, even in formal hearings in a regular trial court, the reopening of a case for the purpose of showing facts vital to the issue involved, is liberally allowed by the trial judge and a failure to do so may be considered an abuse of judicial discretion.(Emphasis added).

See alsoScott v. McClinton, 214 Miss. 364, 58 So.2d 913(1952).When appellant requested permission to reopen for the limited purpose of offering the Certificate into evidence, no prejudice would have resulted to appellee, and no delay in the proceedings would have occurred, it was error for the court to refuse appellant's motion in our opinion.

Appellant next contends the court erred in excluding the testimony of Alexander because "the rule"¹ had been violated.

The purpose of "the rule" is to prevent witnesses from being in the courtroom while other witnesses testify so as to insure their testimony will not be affected by that of other witnesses.See6 Wigmore, Evidence Secs. 1837-1838(Chadbourn rev. 1976);Fed.R.Evid. 615 advisory committee note.Cf.Ross v. Segrest, 421 So.2d 1234(Miss.1982);Commercial Credit Equipment Corp. v. Kilgore, 221 So.2d 363(Miss.1969);Moore v. Chambers, 199 So.2d 261(Miss.1967);Grimes v. Grimes, 197 Miss. 315, 20 So.2d 662(1945);Wilson v. Peacock, 111 Miss. 116, 71 So. 296(1916);Bernheim v. Dibrell, 66 Miss. 199, 5 So. 693(1889).The voir dire reveals Alexander was not in the courtroom and the conversation between counsel and Alexander related only to his upcoming testimony concerning the invoices.

Of course a court has the discretion during or before trial, to exclude witnesses from the courtroom.However, we think, the attorneys in the case may consult with the witnesses who have been put under "the rule."In Scott v. State, 218 Miss. 892, 56 So.2d 839, 840(1952), defendant's attorney requested permission to confer with their witnesses "altogether."In denying this motion, the trial court said:

"When the witnesses were sworn before the taking of testimony began, counsel for Defendant stated to ...