Wells Fargo & Co. v. W. B. Baker Lumber Co. , 115 Ark. 142 ( 1914 )

Wood, J.,

(after stating tbe facts). (1) The court erred in permitting the witnesses on behalf of the appellee to testify as to the contents of certain letters which it wrote to the foundry company in regard to the cbntemplated shipment of the “easting” and also as to the letter making inquiry as to why the casting had not been returned. These were letters, addressed to the foundry company, and the primary -evidence was the letters themselves. No sufficient foundation was 1-aid for the introduction of testimony concerning the contents -of these letters. If was not shown that the letters were not in the possession of the foundry' company, and that they could not have been obtained and produced at the hearing.

In the course of the argument of /the attorney for the appellant, he turned to the -deposition of -a certain witness and started to read from it. Counsel for appellee objected to his -doing so. ■ Counsel for appellant thereupon stated that he did not desire to read the entire deposition, but merely to quote ex-cerpts which, in -his opinion, would bear out the contention he was then making in his argument, and he requested the court’s permission to read to the jury such excerpts. The court refused to grant such permission -and refused to permit him to quote to the jury any portion- of the testimony of s-aid witness by reading from said deposition, the court stating in the presence -of the jury, “the- evidence of the witness is introduced but once in my court.” Appellant objected and excepted to this statement of the court and -also to the ruling of the court in refusing to permit counsel to read to the jury excerpts from the deposition of the witness.

(2-3) There was no prejudicial -error in the ruling of the -court in refusing to permit the counsel to read excerpts from the deposition nor in the remarks of the court giving his reasons for such ruling. It is within the sound discretion of the court to grant -or refuse permission to read excerpts from depositions of witnesses that have béen read in -evidence to the jury. Where there is a sharp dispute between counsel representing the respective parties to litigation as to what the deposition contained, then the court should permit the deposition to be re-read in the hearing of the jury to settle this controversy. But here the counsel announced that he merely wished to quote excerpts from the deposition in order to show that he was correct in his opinion of the testimony, and the contention that he was making in his argument. But the record does not disclose that the counsel for the appellee had challenged the correctness of any statement made by counsel for the appellant as to the contents of the deposition that had been read, and the court did not err, therefore, in refusing to permit counsel, in argument, to read from the deposition.

The remarks of the court in making its ruling were only tantamount to saying that the court would not permit the time to be consumed in reading the deposition more than once. It was the duty of the trial judge to see that the proper order of procedure was observed in the manner of introducing testimony 'and the arguments made ■before the jury, and this court will not reverse for the ruling of the trial court on these questions of procedure unless it appears that there is ah abuse of the court’s discretion which results in prejudice to the party making the objection. While the court might very properly have permitted the counsel to read the extracts he desired to read in order to show that he was stating the testimony correctly, the court did not err in refusing this permission and in thus leaving the matter to the recollection of the jury who had heard the reading of the deposition.

(4) The court erred in granting appellee’s prayer for instruction No. 1. This instruction was misleading. The jury were authorized by it to find that it was the duty of the appellant to deliver the casting to the consignee after it had reached Harrison. But, according to the undisputed testimony, the foundry company, the consignee, was situated beyond appellant’s delivery limits, and there was no duty, therefore, resting upon appellant to deliver the casting to the consignee. Appellant’s duty in this regard was to promptly give notice to the consignee of tlie arrival of the casting at Harrison and to deliver it to the consignee on its demand at appellant’s place of business. Notwithstanding the undisputed evidence to the contrary, the jury, under the instruction, were told that it was the duty of the appellant to deliver the casting with reasonable dispatch and promptness. The court should have refused appellee’s prayer in this regard, and should have instructed the jury as requested by the appellant, that the place of business of the foundry company, the consignee, was outside of the delivery limits of the appellant. It was prejudicial error to submit that which the uncontroverted evidence established in favor of the appellant as though it were a disputed question of fact. “Where there is no evidence to sustain an issue of fact, the judge only declares the law when he tells the jury so.” Catlett v. Tty. Co. 57 Ark. 466.

(5) The court erred in admitting testimony and instructing the jury concerning damages to the lumber from bluing, and the verdict and judgment for damages in that particular were erroneous. The complaint does not aver that any such damages had resulted ¡by reason of the alleged negligence of the appellant, nor was there any allegation in the complaint that any special notice was given to the appellant that such damages would result. If such damages did result it was special and could not be recovered without an allegation and proof that such damage was caused ’by the negligence of appellant, and that appellant had special notice of such damage at the time of the shipment. See 5 Enc. Pl. & Pr. 719; Crutcher v. C. O. & G. Rd. Co., 74 Ark. 358; C. O. & G. Rd. Co. v. Rolfe, 76 Ark. 220-223; 13 Cyc. 176; 4 Sedg. on Damages, § 1261.

(6) The court erred in granting appellee’s third prayer for instruction.

The testimony on behalf of appellant tended to show that appellant in due time notified the consignee foundry company, through the agent whose duty it was to give such notice, that the planer cylinder had been received. But this instruction makes appellant guilty of actionable negligence as a matter of law because one of its agents, according to the testimony, told an agent of the foundry company, upon inquiry, that no such piece of machinery had been received. Notwithstanding this reply, it was still a question for the jury to say, under the circumstances, whether or not appellant was negligent. But the instruction makes the bare statement of one of the employees of appellant that the machinery was not on hand (in answer to the inquiry of the agent of the foundry company) conclusive evidence of the negligence of the appellant. The foundry company, having received due notice through appellant’s agent that the planer cylinder had been received (by appellant, could not, as a matter of law, make the appellant liable by simply inquiring of one of appellant’s employees as to whether the piece of machinery was on hand, upon the reply simply of such employee that it had not been received, when it was not shown that 'such employee of the appellant was in charge of the piece of machinery or that it was the duty of such employee to know that the machinery was on hand.

The effect of the instruction was to make the appellant guilty of actionable negligence as a matter of law under such circumstances, whereas the question should have been left to the jury to determine as to whether, under such circumstances, appellant 'had failed to evercise ordinary care to notify the foundry company of the arrival of the planer cylinder in order that the same might be in due time delivered to the consignee.

For the errors indicated the judgment'is reversed and the cause remanded for a new trial.