Judges： Bland, Campbell, Campjbell, Gave, Shain, Sperry
Filed Date： 9/16/1940
Status： Precedential
Modified Date： 10/19/2024
"Q. And is that test you give the poles that are carried over? A. Yes, all of them, carried over or new stock. We have to do it on every one of them.
"Q. Do you remember of shipping a pole to the Board of Regents of Deuel County High School? A. No, I don't.
"Q. Do you have any independent recollection of any one particular pole which you may have shipped at any time? A. No, I don't. You see, I don't know where they ship them to when I fix them up. All I get is the number on my card, it don't have any name or anything on it, so I don't know where they are going.
"Q. You have no recollection of the particular pole involved in this case. A. No.
"Q. You have no way of remembering what you did with respect to any particular pole in March or April, of 1937? A. No, sir.
"Respondent offered no other evidence on this subject. . . .
"In his opinion the commissioner had ignored such evidence and reached the conclusion by applying improper principles of law."
The plaintiff introduced the deposition of Regelbrugge. When the deposition was offered counsel for the parties agreed, and the court instructed the jury, it should be considered as against the deponent only and not against any other defendant. Later the deponent was dismissed from the case. When the dismissal was *Page 632 entered the deposition passed out of the case and could not thereafter be considered by court or jury.
It is true, as charged in the motion, the opinion "ignored" that evidence and it is equally true that evidence was not here for consideration, and, for that reason, it was not mentioned in the opinion.
The motion further says:
"The statement of fact is also inacurate and incomplete in other respects. The full presentation of the uncontradicted facts in this record should, in all fairness, include the admission by Coach Miller as to what he did to the pole before turning it over to the plaintiff. The coach testified as follows:
"Q. What did you do with it? A. I did not even put it up against the well; there was just one end on the floor and I took a hold of it at the height, thinking I had a sixteen foot pole and pressing down on it. Now, I was afraid to press too hard because I weigh one hundred sixty-five pounds and Gene only weighed one hundred twenty.
"Q. Did you turn the pole over and do it again? A. I did not.
"Q. You just tested it on one side? A. Yes.
"Q. And gave it to the boy? A. Yes, sir.
"Q. Do you generally do that, just test them once? A. No.
"Q. There was nothing in this pole to indicate to you that it was a dangerous pole, was there? A. No, sir.
"Q. You would not have given it to the boy if you thought it was dangerous? A. I would not.
"Q. You thought the pole was all right after you put it on the floor and pushed on it? A. I thought it was all right before that.
"Q. You looked at it before that? A. Yes.
"Q. And you thought it was all right? A. I had never gotten a pole that I was able to break before; there was no reason why I should suspicion it being a defective pole."
We have set out the above questions and answers, not because we believe any of them save the ones mentioned in the opinion have any value in determining whether plaintiff made a submissible case, but because the defendant seems to deem that evidence important.
The motion further says:
"There are other misstatements of the evidence resulting from the commissioner's misapprehension of the rules as to the consideration of the evidence. There is no evidence in this record which justifies the commissioner's characterization that the first pole purchased on March 4, 1937, had a ``defect' when the uncontradicted evidence in this record is that the March 4th pole continued to be used at the high school.
"Likewise it is difficult to understand why the commissioner has stated that ``the pole was then painted.' The uncontradicted evidence *Page 633 was merely that the first grade poles had red paint on the lower joints as an identification."
The charge the opinion could not properly say the pole of March 4 had a defect is not warranted by the record. The pole was not straight, was unbalanced, and, therefore, according to Webster and the New Century Dictionary, it had a defect. The claim the opinion should not have stated "the pole was then painted" is likewise unfounded.
Freeburg, defendant's vice president and its witness, testified that defendant maintained a store in each of several cities throughout the United States; that when any of said stores, other than the one in Kansas City, received an order for a vaulting pole the order was forwarded to defendant at Kansas City and the pole was prepared in the latter city. And —
"Q. Now, as I understand then, each one of these stores, except the ones where the orders are filled from Kansas City, receive their own shipments of bamboo poles in the raw from Japan? A. They do not.
"Q. Where do they get them from? A. They get them from us complete, from Kansas City.
"Q. Oh, the complete poles, you get them here in the raw and cut them off? A. Yes.
"Q. Tape them, paint them, plug them, do whatever is necessary in order to make them usable? A. That is correct.
"Q. This is the place of manufacture of these poles. A. That is right."
The claim the opinion is erroneous in "taking part of a witnesses testimony and ignoring the explanatory portions thereof" overlooks the established rule that a jury may believe all of the evidence of a witness or none of it or reject it in part and accept it in part. [Gould v. Chicago, B. Q.R. Co.,
At the request of the author of the main opinion herein, the court has examined the record with care and finds that every fact necessary to the disposition of the questions at issue on appeal has been accurately and fully stated, and that no material fact had been omitted.
The motion for rehearing is overruled. Sperry, C., concurs.