Studebaker Corporation of America v. Hanson

• Decision Date: 16 October 1916
• Docket Number: 818
• Citation: 24 Wyo. 222,157 P. 582
• Parties: STUDEBAKER CORPORATION OF AMERICA v. HANSON
• Court: Wyoming Supreme Court

157 P. 582

24 Wyo. 222

STUDEBAKER CORPORATION OF AMERICA v. HANSON

No. 818

Supreme Court of Wyoming

October 16, 1916

24 Wyo. 222 at 248.

Original Opinion of May 17, 1916, Reported at: 24 Wyo. 222.

Rehearing denied.

POTTER CHIEF JUSTICE. BEARD, J., concurs. SCOTT, J., did not participate in this decision.

OPINION

ON PETITION FOR REHEARING.

POTTER CHIEF JUSTICE.

A petition for rehearing has been filed in this case by counsel for plaintiff in error. In disposing of it we deem it unnecessary to again enter upon a discussion of the question of the agency of the concern from whom the car was purchased by the defendant. We held that the evidence was sufficient to establish the fact of such agency, to the extent at least that it was authorized to sell the car with plaintiff's warranty and supply the necessary parts and labor to put the defective car in proper condition. But it is stated in the brief in support of the petition for rehearing that the only evidence on that question was the testimony of the witness Roberts and the defendant concerning the actions and statements of Mr. Hicks, particularly his statement that the several Studebaker companies were one and the same. That was not the only evidence on the question. The several letters written by the plaintiff to the defendant, referred to and quoted from in the former opinion, were not only competent and pertinent upon the question, but tended strongly as admissions to show the identity of plaintiff corporation as the one for whom the car had been sold and warranted, and also the agency of the concern who sold it.

It is argued also that the question in the case as to this matter of agency was not the sufficiency of the evidence, but its admissibility. But we held that the evidence objected to was competent and admissible, and therefore, referred to it in considering whether the evidence was sufficient to sustain the verdict. And we remain of the opinion that it was competent and properly admitted. As to certain letters shown by copy, we held, without deciding whether the notice to produce the originals was sufficient or not to render the copies admissible, that the ruling admitting them would not, if erroneous, justify a reversal; the reason therefor being stated in the opinion. And, therefore, we said that we would not be inclined to scrutinize very closely the action of the court in admitting such copies, though we suggested that the court may have regarded the notice on the trial to produce as sufficient on the ground that a duty rested on the plaintiff to have the originals in court as papers intimately connected with the issues in the case.

Counsel also find ground for complaining of the decision in that, as stated in the brief, the plaintiff was held by this court to the same consequences as by the jury, because of its silence as to facts attempted to be proven by incompetent evidence. But we held that the evidence referred to was not incompetent, and we are constrained to adhere to that view, for we remain convinced that the trial court properly applied the rules of evidence relating to the admission of the declarations of alleged agents. We suppose that counsel refers to the remark in the former opinion, after reciting the evidence as to the agency of Hicks and others, that no evidence was introduced by the plaintiff to disprove the fact of such agency, as well as a similar remark concerning the failure of the plaintiff to produce or offer in evidence the contract, if any, under which the Denver company was engaged in selling cars of the kind sold to defendant, or to offer to show what the arrangement was between the said selling company and the manufacturer, in which connection we said:

"It seems to us that there must have been some arrangement or contract, and that it was within the power of the plaintiff, especially as the secretary of the Denver company was a witness in its behalf, to show what such arrangement was, if it was different from that which might be inferred from its correspondence with the defendant and the other evidence in the case."

Now that was not going out of the record or supplying something through the imagination to cure a failure of proof, as counsel seem to suggest. We had in mind a familiar rule of evidence, which is stated in Jones' Commentaries on Evidence as rewritten by Horwitz (The Blue Book), as follows:

"It is a well-settled rule of evidence that when the circumstances in proof tend to fix a liability on a party who has it in his power to offer evidence of all the facts as they existed, and rebut the inferences which the circumstances in proof tend to establish, and he fails to offer such proof, the natural conclusion is that the proof, if produced, instead or rebutting, would support, the inferences against him, and the jury is justified in acting upon that conclusion." (Vol. 1, Sec. 19.)

In Jones on Evidence, 2nd Ed., Sec. 19, the presumption from failure to produce evidence is thus explained: "The mere...