Williams v. Cantwell
| Decision Date | 26 October 1914 |
| Docket Number | 203 |
| Citation | 170 S.W. 250,114 Ark. 542 |
| Parties | WILLIAMS v. CANTWELL. WILLIAMS v. TUCKER |
| Court | Arkansas Supreme Court |
Appeal from Cleburne Circuit Court; George W. Reed, Judge; reversed.
STATEMENT BY THE COURT.
The appellees were engaged as engineer and fireman by the appellant, and at about 7:30 o'clock on the morning of the 18th day of January, 1912, they rode in one of the appellant's engines over a tramway, which was used in connection with appellant's saw mill, and in crossing a bridge in said tramway spanning a creek near Leslie Arkansas, the bridge gave way at or near its center and the engine fell into the creek, a distance of about 16 feet. Each of the appellees sustained some personal injury, about the nature and extent of which there was a sharp conflict in the evidence, and they sued for and recovered judgment for these injuries. It was alleged by them, and the proof tended to show, that the accident was caused by the negligence and carelessness of the appellant in failing to properly construct, and in failing to properly inspect and repair, the bridge through which their engine fell.
Appellant in his answer, alleged that the bridge became unsafe by reason of excessive rains which had recently fallen, and stated the fact to be that the injury was occasioned by the contributory negligence of the appellees in failing to inspect the bridge; and there was also a plea of assumption of risk.
Separate suits were brought and separate recoveries had in each case and separate appeals have been prosecuted from the respective judgments; but the questions involved in each of the cases are substantially identical and the cases have, therefore been considered by us together.
The appellee, Cantwell, recovered a judgment for $ 750, and the appellee, Tucker, recovered a judgment for $ 625, and there was evidence offered in their behalf which would have supported even a larger recovery; but, on the other hand, there was evidence to the effect that neither of them sustained any serious injury and that they were both able to return to their work within a few days.
The wreck occurred and the suits were brought in Searcy County, but upon motion of appellees the venue was changed to the Cleburne Circuit Court, and the action of the court in making the order changing the venue is assigned as error; but that point is not pressed in the brief.
The record recites that at the trial substantially the following occurrences took place: Before the beginning of the selection of the jury to try the case, Judge E. G. Mitchell, of counsel for appellees, asked Mr. T. D. Wynne, who was the attorney present representing the appellant, if he was not the attorney for and representing the Home Life and Accident Insurance Company, which question was asked out of the presence and hearing of any of the veniremen who were serving at that term of the court. Upon the refusal of Mr. Wynne to answer this question, the following proceedings were had in the presence of the veniremen from whom the jury was examined and empaneled to try the cause and in open court: Judge Mitchell addressed the court and said: "Your Honor, this gentleman here (indicating Mr. Wynne) in my opinion and information, does not represent H. D. Williams, but represents an insurance company for H. D. Williams, and for the purpose of inquiring from the gentleman, and for that purpose only, as to whether he is representing the insurance company, I am asking, in good faith, who his client is, and I ask you, as you did for me, and as the Supreme Court upheld you in doing, to require him to state who he represents."
Mr. Wynne, of counsel for defendant, objected and excepted to the foregoing statement being made by Mr. Mitchell in the presence and hearing of the veniremen.
The court thereupon stated to Mr. Wynne that he would have to answer said question before he would be permitted to proceed with the trial of the cause, and Mr. Wynne was thereupon compelled to state, in the presence of all the veniremen, in open court, that he was the attorney for the Home Life and Accident Insurance Company, but at the time he objected to the action of the court in compelling him to so state, and saved his exceptions to the action of the court.
The examination of the veniremen was thereupon proceeded with, and Judge Mitchell, in examining said veniremen upon their voir dire as to their qualifications to serve as jurors in the cause, asked each of them if he was in the employ of the Home Life and Accident Insurance Company, and, upon his answering said question in the negative, the court further permitted the said attorney to ask each of said veniremen if they, or either of them, expected to be employed by the Home Life and Accident Insurance Company, and if they were in the employ of any accident insurance company; and proper exceptions were saved to this action of the attorney.
Appellant complains of the action of the court in permitting counsel for appellees, after he had put one W. C. Nichols upon the witness stand as a witness on behalf of appellees, to read from a certain deposition which had been previously given by the said W. C. Nichols, but which had never been filed, if he, the said W. C. Nichols, had not made certain statements which were there read to him and which were contradictory of statements which he had made at the trial; and a similar objection was made to the use of the deposition of a witness named Dodson.
Appellant also complains of the action of the trial court in permitting counsel for appellees to read the deposition of J. J. Johnson, a physician, in which various hypothetical questions were asked him and the opinion of the witness given in response thereto; it being insisted that there was no foundation upon which to predicate the hypothesis upon which the witness' opinion was taken.
It is also urged that the verdict of the jury is excessive, but, as we have said, that question is concluded by the verdict of the jury.
Judgment reversed and cause remanded.
Wynne & Harrison, for appellant.
1. It was reversible error to permit the attorney for the plaintiff, in the presence of the jury, to question the attorney for the defendant is regard to his connection with the case, and thereby, to advise the jury that an insurance company would be held responsible for any amount the jury might assess against the defendant as damages; and to permit the attorney for plaintiff to ask the jury on their voir dire if they were in the employ of the Home Life and Accident Insurance Company, etc. 104 Ark. 1; 187 N.Y. 128; 79 N.E. 854; 28 Am. & Eng. Ann. Cas. 358 and footnotes; 86 S.W. 616; 84 S.W. 1100; 84 S.W. 352; 142 S.W. 959; 154 S.W. 1070.
2. The court erred in permitting plaintiff's attorney to read to the jury the deposition containing a hypothetical question and the answer of Doctor Johnson thereto. Jones on Evidence, 463, and cases cited in notes; Id. 471; 36 Ark. 117.
3. It was error to permit plaintiff's attorney to impeach his own witness. 68 Ark. 587.
E. G. Mitchell, for appellees.
1. Counsel for plaintiff acted within his rights for the protection of his client's interests in pursuing the course objected to by appellant. He acted in good faith, was careful not to unnecessarily call attention to the matter of insurance, and limited his inquiry to the one purpose. 104 Ark. 1, 9; 74 P. 635, 637; 95 N.W. 1079; 93 N.W. 284; 101 P. 368; 110 P. 528; 92 P. 856.
2. It was not error to allow the deposition of Doctor Johnson, containing the hypothetical question and answer, to be read. There was sufficient foundation in other evidence introduced to permit its being read. 87 Ark. 243, 294; 36 Ark. 117.
3. Appellee's counsel had the right, when the witness, Dodson, answered a question in such a way as to contradict a former statement he had made on the same point, to question him in regard to his former statement, not for the purpose of contradicting him, but to refresh his memory. Kirby's Dig., § 3137; 42 Ark. 542, 553; 104 Ark. 327, 340; Jones on Evidence (2 ed.), § 854.
SMITH, J., (after stating the facts).
It is earnestly insisted that counsel for appellees committed prejudicial error in his conduct before the court in interrogating ...
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