Summary
In Robertshaw Trustees v. Columbus G. Ry. Co., 185 Miss. 717, 188 So. 308, it was said: "In order to put the trial court in error, it must be shown not only that there was error but that the error or errors were committed by the court after a fair and definitely presented opportunity was given to avoid or correct them."
Summary of this case from Henry v. CollinsOpinion
No. 33691.
May 1, 1939. Suggestion of Error Overruled May 29, 1939.
1. APPEAL AND ERROR.
In order to put the trial court in error it must be shown not only that there was error, but that the error was committed by court after a fair and definitely presented opportunity was given to avoid or correct them.
2. APPEAL AND ERROR.
Where trial court promptly ruled against improper evidence as soon as it appeared as such and took every subsequent step which it was requested to take to root out the objectionable matter, and only thing else that the court could have done to eradicate it wholly was to grant a mistrial, which the court was not asked to do, there was nothing saved for review by Supreme Court.
3. TRIAL.
In action against railroad for destruction of property allegedly due to sparks from locomotive, wherein defendant attempted to introduce evidence that property was insured but court ruled against such evidence and permitted examination out of presence of jury as soon as it appeared that evidence was of an objectionable nature and no mistrial was asked for by plaintiffs, case presented was not of such a fundamental nature as required trial court to tender a mistrial on its own motion.
APPEAL from the circuit court of Sunflower county; HON. S.F. DAVIS, Judge.
Everett Everett and J.M. Forman, all of Indianola, for appellants.
We earnestly submit to this court that the trial court was in error when it failed to ascertain the competency of the evidence given by J.F. Barbour II in the absence of the jury. When this witness was called, the plaintiff stated to the court that the evidence which would be offered by him was incompetent and asked the court to determine its competency or incompetency before permitting him to testify. This the court refused to do.
The whole purpose in putting this witness on the stand was to get before the jury two things. (a) That he was a fire insurance agent, and that the property was insured. (b) That he, the witness, as a representative of insurance companies, undertook to have apprehended some unknown person that he had heard was seen leaving Heathman either before or after the fire, as a protection to his insurance companies. This testimony was highly prejudicial to the plaintiff.
The court finally excluded all the testimony of Mr. Barbour, but not until the defendant had succeeded in getting the desired information before the jury. Then it was too late.
Warren v. State, 164 So. 234; Missouri Pac. Transp. Co. v. Beard, 176 So. 156.
Trial courts cannot be too careful in admitting evidence in either a criminal or civil suit, and, when the court is advised that the evidence which will be offered by a particular witness is incompetent, certainly it is his duty to determine the competency thereof before it is given, rather than to let it in before the jury and then exclude, as was done in this case.
We very earnestly submit that the trial court erred in overruling the motion of the plaintiff to exclude that part of the evidence offered by the defendant through the witnesses H.J. Brewster, W.L. Dixon, Jessie Davis, and A.F. McDaniels, wherein they testified to seeing tramps or hoboes milling around while they were doing the switching of cars at Heathman and that they left two tramps or hoboes lying down in the very car that caught fire and burned plaintiff's property. This evidence was offered to show that the fire that destroyed the plaintiff's property might have been started in the car set out, by the tramps or hoboes, and not by sparks.
Y. M.V. Ry. v. Lamensdorf, 178 So. 80; Williams v. Lumpkin, 169 Miss. 146, 152 So. 842; Harris v. Sims, 124 So. 325; Mutual Benefit, etc., v. Johnson, 186 So. 297.
In the case at bar, from the evidence of the defendant as to the origin of the fire, the jury was left without an iota of proof or circumstance to show the fire was set out by tramps left in the box car by the defendant, but only to conjecture that the tramps were there and could have started it.
Mutual Benefit, etc., v. Johnson, 186 So. 297; State v. Hogan, 63 Ohio St. Rep. 202, 81 Am. St. Rep. 631.
Under the law the defendant was charged with knowledge of the unlawful and vicious character of such an outlawed class of people, and that in knowingly, wilfully and deliberately leaving at least two of them in charge of one of its cars so set out under the eaves of this seed house full of easily inflammable matter and in a very dry season of the year, created a nuisance and it did not have any regard for the rights of the plaintiff.
Duke v. Mitchell, 122 So. 189.
The acts of the defendant was not the use of reasonable care, having in view the circumstances and facts as they there existed.
Magers v. Ry. Co., 165 So. 416; Tri State Trac. Co. v. Martin, 179 So. 349; Keith v. Y. M.V. Ry., 151 So. 916.
Under the facts shown by this record, we submit that the verdict of the jury, although brought about by erroneous filings of the court and erroneous instructions given the defendant, was wrong, there being no competent evidence on which the jury verdict should be sustained, and the lower court should have granted the plaintiff a new trial.
R.C. Stovall, of Okolona, for appellee.
The third assignment of error relates to overruling plaintiffs' motion to ascertain the competency of the evidence of J.F. Barbour, II, before permitting him to testify before the jury.
There is nothing in the transcript that brings the ruling of the court within the condemnation of the cases cited in plaintiffs' brief, namely, Warren v. State, 164 So. 234; Mo. Pac. Transportation Co. v. Beard, 176 So. 156.
The material part of Barbour's evidence was heard in the absence of the jury, and excluded, and not allowed to be offered in the presence of the jury; and, therefore, it is not necessary for this court to determine whether or not his evidence was wrongfully excluded.
Y. M.V.R. Co. v. Rivers, 46 So. 705; Kroger Grocery Co. v. Harpole, 166 So. 335.
Whether offers of proof should be made out of the presence or hearing of the jury is discretionary with the trial court. The offer is for the information of the court and not for the jury.
64 C.J. 136.
If by merely telling the court that the testimony of a witness will be incompetent, and therefore it should be first heard in the absence of the jury, before a single question has been asked him, a party could secure the right to go into the testimony of the witness in the absence of the jury, such a rule could easily be much abused, and astute counsel could have a private hearing of each witness before he took the witness-stand, thus fortifying himself for cross-examination and adding greatly to the length of trials. At last, the matter is one for the sound discretion of the court; and his ruling will not be interfered with in the absence of abuse of the discretion allowed. All material parts of Barbour's testimony were heard while the jury were outside, and were not repeated in the presence of the jury; and in that situation it cannot fairly be said that there was the slightest abuse of the court's discretion in such matters.
If the jury knew what was Barbour's testimony while they were outside, they had to imagine it; and we won't agree that they based their verdict upon conjecture and speculation as to what Barbour said while they were outside.
Brewster, the engineer; Dixon, the conductor; Davis, the head brakeman; McDaniel, the fireman, all testified to the presence of hoboes, without a single objection to the testimony of any one of them on that matter by plaintiffs' counsel; and then plaintiffs' counsel cross-examined them about those hoboes. Even after cross-examination plaintiffs' counsel did not move to exclude their testimony about the hoboes. Only after the defendant had rested its case did plaintiffs' counsel move to exclude the evidence of those witnesses who testified to the presence of hoboes at Heathman.
Objections to testimony must be timely. A party may not sit in silence, and let evidence go to the jury without objection, and afterwards move to exclude it. That would be allowing him to speculate on whether he could turn the evidence to his own advantage, and if upon after-thought he should decide that he could get no advantage from it, he could then get rid of it by a motion to exclude.
Clanton v. Laird, 12 S. M. 568; Commercial Bank v. Martin, 9 S. M. 613; N.O.M. C.R. Co. v. Mauldin, 60 So. 211; Palmer v. Fair Co., 105 So. 513; 6 Jones on Evidence, 4980; Coppin v. State, 26 So. 333; Lake Shore M. Ry. Co. v. McIntosh, 38 N.E. 476; Bramble v. Shields, 127 A. 44; Dobson v. So. Ry. Co., 44 S.E. 593; Kimbrall v. State, 174 So. 47.
Moody Davis and S.D. Neill, all of Indianola, for appellee.
Where circumstantial evidence alone is relied on, it must exclude every other probable cause of the injury complained of than the one upon which recovery is based.
G.M. N. Ry. v. Sumrall, 107 So. 281.
Whether such circumstantial evidence alone excludes "every other probable cause of the injury complained of than the one on which recovery is based," is a question to be decided by the jury, and not by the trial judge. If so, then the jury, and not the trial judge, must determine from such circumstantial evidence alone, what is or is not a probable cause of the injury, for otherwise, they could not determine whether one probability is stronger than another.
The third error assigned is based solely on the plaintiffs' request shown at page 439 of the record. As to this request and the action of the trial court page 439 of the record discloses the following:
"MR. EVERETT: Before this witness is placed upon the stand, we know what counsel proposes to prove by him, or we think we do, and we think by reason of the former rulings of this court, it is wholly incompetent and ask the court to inquire into it in the absence of the jury.
"MR. MOODY: Counsel hasn't in mind what we expect to prove by him.
"COURT: I can't pass on it until I get to it, I don't know what counsel expects to prove. Exception by plaintiff."
Other than the above counsel for plaintiff did not advise the trial court nor was the court advised in any other manner as to why this witness was not competent to testify, nor that his testimony would be incompetent, and certainly, the court was not informed in any manner that such would be prejudicial to plaintiffs. Without the trial court being so advised the witness was permitted to proceed, when at the request of the defendant the examination proceeded in the absence of the jury.
Nowhere does the record disclose that the plaintiffs advised the trial court that its action, as above narrated, was prejudicial to the plaintiff, nor an opportunity, in any manner whatever, given to the trial court to correct the error, if such it was. To the contrary the plaintiffs without more ado proceeded with the trial, and having taken this chance on a favorable verdict, now ask this court, on appeal, for a reversal because the trial court sought to be advised as to the character of the testimony before passing on the request made by the plaintiffs' attorneys.
Surely there is no action of the trial court of which the plaintiffs, as to the error assigned, have a right to complain. The trial court did not reserve its ruling and promptly passed on each objection as made. Other than one or two questions as to immaterial matters all objections made by the plaintiffs were sustained and, when sustained, the plaintiffs were satisfied so far as the record discloses. At any rate the plaintiffs without objection proceeded with the trial of the cause.
Argued orally by F.E. Everett, for appellants, and by S.D. Neill, for appellee.
Two large seed houses, with their contents, the property of appellants, located adjacent to the railroad near a small station, were destroyed by fire, alleged by the declaration to have been caused by sparks from a locomotive of the railway company. This is the sole ground of liability charged. The verdict of the jury was for the defendant railway company.
There was enough evidence to have supported a verdict for appellants. On the other hand, there was sufficient competent testimony before the jury upon which they could reasonably conclude that, as a probability, (1) no incendiary sparks were emitted from the locomotive of appellee at the time; or (2) if there were, they were carried by the wind, then blowing, in an opposite direction and away from the place where the fire was discovered to have begun; or (3) that the location of the fire inside the boxcar when first seen was such as to make it improbable that a spark from the locomotive set it out. Having so concluded, it was not required of the jury that they go further and inquire as to other possible or probable sources of the conflagration.
There is no reversible error in any of the rulings of the court, nor in the instructions, and except for the matter now to be mentioned, we would have affirmed without any written opinion.
The railway company offered among the witnesses in its behalf a well-known fire insurance agent. When this witness was called, appellants, apprehending that the chief purpose was to get before the jury the fact that the destroyed property was largely covered by insurance, suggested to the court, in a general way, that a preliminary examination be had of this witness out of the hearing of the jury. This was declined by the court on the ground that there was nothing then before the court which would disclose the necessity or propriety of such a preliminary examination. The attorneys for the railway company were permitted to proceed with the examination of the witness and it was soon indicated by the responses of the witness that there was such insurance, whereupon the court retired the jury, and the remainder of the examination of the witness was heard in the absence of the jury, at the conclusion of which the court sustained the objection to the testimony of that witness and excluded all of it.
We have examined that testimony with care in the endeavor to discover on what ground or grounds any part of it could have been relevant or material. We fail to perceive any such grounds; and while we must assume that this witness was introduced for some other purpose than to get to the jury the fact that the destroyed property was insured or partly insured, we must look to the effect of what was done rather than to the purpose with which it was done. Ever since the case of Herrin v. Daly, 80 Miss. 340, 31 So. 790, 92 Am. St. Rep. 605, we have endeavored here to admonish counsel that the injection of the matter of insurance into jury trials is, as a general rule, illegitimate. The case before us is not an easy one on the issue of liability, so that it follows that a serious question for reversal might be presented had appellants reserved the point in the trial court in such manner as to make it reviewable here; but this the appellants did not do.
In order to put the trial court in error, it must be shown not only that there was error but that the error or errors were committed by the court after a fair and definitely presented opportunity was given to avoid or correct them. The court ruled promptly upon and against the improper evidence as soon as it appeared as such, and the court took every subsequent step, which it was requested to take, to root out the objectionable matter; and the only thing else that the court could have done to eradicate it wholly was to grant a mistrial, and this the court was not asked to do. Mars v. Hendon, 178 Miss. 157, 172, 171 So. 880, 173 So. 286; Brush v. Laurendine, 168 Miss. 7, 12, 150 So. 818; Holmes v. State, 151 Miss. 702, 711, 118 So. 431. We express no definite opinion on the question whether a mistrial should have been granted had it been requested, as that is not before us for decision, — it being necessary to add only that the case as presented is not one of such extreme harm or gross wrong or error of such a fundamental nature as that the court was obliged to tender a mistrial of the court's own motion, conceding for the time being that there may be such a case.
Affirmed.