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.