William Laurie Co. v. McCullough
| Decision Date | 01 July 1910 |
| Docket Number | 21,414 |
| Parties | William Laurie Company v. McCullough |
| Court | Indiana Supreme Court |
Original Opinion of February 23, 1910, Reported at: 174 Ind 477.
Appellee 's counsel, on petition for rehearing, challenge all the holdings of the court adverse to the interests of their client. In the original opinion we said: "Appellant, by proper questions, sought to show that the floor dressing to which this accident is attributed was in use in other stores in the city of Indianapolis at and prior to the time appellee received her injury." This fact appeared to us to be true beyond question; but appellee's counsel, with apparent earnestness say: "We respectfully ask this court where in the record it found such proper questions?"
Appellant introduced Thomas Kennedy as a witness, and showed that his business was selling floor oil to appellant and others. He was then asked how long he had been selling the oil to appellant. Appellee's counsel objected, and appellant stated that the witness, if permitted to answer, would testify that he had been making such sales for five or six years. The objection was sustained. It may be stated once for all that in each instance mentioned in this connection the question was in good form, the objection was general, and a proper offer of specific responsive proof was timely made. The court refused to permit appellant to prove that the oil so bought was used on its floors, except at the precise time of the accident in question. Appellant's counsel clearly stated his purpose and desire to show the length of time such oil had been used, as tending to prove that appellant had no knowledge that there was any danger from its use, but the evidence was excluded.
The witness testified that he had been selling this oil for six or seven years, that he had had experience in applying it to floors in many stores, and that, on an average, a gallon should cover about three hundred square feet of floor space. This question was then asked: "State to the jury how the oil in question should be applied to the floor;" and a like question relating to appellant's floor in December 1906. Objections were sustained to both questions. Witness was asked to state the condition in which appellant's floor should have been immediately after the oil had been applied to it, if properly applied. Appellee's general objection to this question was sustained. Witness was next asked what other dry-goods stores in the city of Indianapolis used the oil in question for dressing their floors in December, 1906, and then as to certain specific stores, and among others as to the New York Store, whether it used the oil on its floor at the time stated, whether it was not a five story and basement building and carried the same line of goods as appellant, and whether it was not one of the leading dry-goods stores of the city. Appellee's objections were sustained to each inquiry. The following questions were then propounded: "You may state to the jury whether or not the oil for floors that you sold was one in common use here upon store floors by the merchants of this city;" and "You may state to the jury whether or not the oil which you say you sold for use upon the store floor of defendant was one in common use in well-regulated dry-goods stores of this city." A further effort was made to prove that this floor dressing was in use on the floors and stairways of school buildings in the city of Indianapolis but in every case without success. This exhibition of the record relating to one witness will certainly show the attitude of appellee's counsel in the trial court. They thwarted every effort to show the use of the oil, except at the time of the accident, not on account of the form of the questions, but because, as claimed, all such evidence was wholly incompetent. Appellee's counsel now seek to sustain their position, on the ground that no offer was made to show that the persons using such oil were reasonably prudent men. This is manifestly an afterthought, which, if tenable, could not be now availing, since the only objection made at the time was the stereotyped phrase that the offered testimony was "incompetent, irrelevant, and immaterial and does not tend to prove any issue in this cause." Appellant sought to show the extent and character of the use of this oil, and that it was in common use in dry-goods stores in the city of Indianapolis. This was sufficient, and appellee's counsel must be held to the position voluntarily assumed by them, and cannot be allowed to take advantage of an objection not made to the trial court, unless the evidence was manifestly incompetent on any theory. We trust we have made clear the fact that the questions upon which the case was decided were properly presented. Our holding in the former opinion, that the custom of using the same...
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