Hume v. Mason & Hoge Co. ( 1899 )

Grant, C. J.

(after stating the facts). 1. Plaintiff was permitted, under objection and exception, to introduce testimony of statements made by Foreman Whiteman tending to show that he knew of the danger in putting the men to work in this place before the 'frozen earth was caved off. Plaintiff’s counsel was permitted to introduce this testimony upon the statement that he would show that Whiteman had authority to bind the defendant, and was not a mere fellow-workman of the plaintiff. Plaintiff failed to show this, and the court instructed the jury that Whiteman was a fellow-servant, and that defendant was not responsible for his conduct or statements. It is now’ urged that this testimony was prejudicial notwithstanding the instruction. The case was submitted to the jury upon the theory that Mr. Hanger had authorized the work upon the frozen ground above, and that this caused the dirt underneath to cave. There was testimony to sustain this .theory. A motion for a new trial was made, and, in disposing of it, the circuit judge said that the jury was composed of very intelligent men, and that, in view of the small amount of the verdict, the jury, in his opinion, were not prejudiced by the testimony. In this view we concur. There is no possible ground for believing that the jury did not follow his instructions as to nonliability for the acts of White-man. Besides, one of the conversations testified to took place in the presence of Hanger, and was apparently ratified by him. The practice of permitting testimony of acts and directions of the supposed agent, before proving the authority, is to be condemned. The authority ought first to be shown. But verdicts will not be set aside by appellate courts for this reason unless there is reason to believe that the jury were prejudiced thereby.

2. Complaint is made of the conduct of counsel for the plaintiff upon the trial, in offering testimony, and the remarks made during the argument. What these remarks were, only appears in an affidavit made by counsel for defendant in the motion for a new trial. The judge certified that the testimony offered was promptly ruled out, and counsel promptly stopped in his argument, and repri-. manded for the use of the language complained of. Under this state of facts, the judgment will not be reversed.

We find no reversible error in the record. Judgment affirmed.

The other Justices concurred.