Wright v. Midland Valley Railroad

Hart, J., (after stating the facts). It is first insisted by counsel for plaintiffs that the court erred in suppressing the deposition of Adam Miller, the person to whom the peaches were consigned. The transcript shows that the court, after hearing the testimony offered in support of and against the motion to suppress, suppressed the deposition of Adam Miller, to which ruling the plaintiffs at the time excepted and asked that their exceptions be noted of record, which was accordingly done. Then follows a call in the bill of exceptions for the clerk to copy the deposition of Adam Miller. There is also attached to the transcript an affidavit in support of the motion and one against it, but there is no call in the bill of exceptions for these affidavits, nor is there any call for any testimony that was heard.before the court in support of or against the motion to suppress the deposition. The record proper is the complaint, summons and all subsequent pleadings and orders of the court, including the verdict and judgment. Lenox v. Pike, 2 Ark. 14. The office of the bill of exceptions is to bring into the record that which does not otherwise appear therein and which it is necessary to bring to the notice of the court to which the appeal is taken. Kirksey v. Cole, 47 Ark. 504; Berger v. Houghton, 84 Ark. 342, and cases cited. This court has repeatedly held that where affidavits, or other evidence, are used on the hearing of a motion for a continuance, if they are not preserved in a bill of exceptions they will not be considered in this court. Watts v. Cohn, 40 Ark. 114; Philips v. Reardon, 7 Ark. 256; Wise v. Martin, 36 Ark. 305. While it is true that what purports to be copies of an affidavit in support of, and one against, the motion to suppress the deposition are attached to the transcript, still this evidence, not having been made a part of the bill of exceptions, can not now be considered by us on appeal. Moreover, the record sustaining the motion to suppress the deposition shows that evidence was heard on the motion, but, in order to render such evidence available on review, it must be included in the bill of exceptions. While it is proper for the record proper or judgment roll to show that motions of this kind were made and' acted upon, neither ‘the grounds of the motion cited therein, nor the evidence tendered therewith, can be received as evidentiary of the facts therein stated, unless they are preserved by bill of exceptions. The grounds upon which the court based its discretion in suppressing the deposition can not be known, nor can it be seen whether or not the court abused its discretion, without a bill of exceptions showing the matters set forth in the motion, and the paper tendered, and the proof upon which it is based. Hurlburt v. W. & W. Mfg. Co., 38 Ark. 594; Hollingsworth v. Me Andrew, 79 Ark. 185; Foohs v. Bilby, 95 Ark. 302. It follows that the presumption in favor of the validity of the judgment of the circuit court in sustaining the motion to' suppress the deposition not having been Overcome by anything contained in the record, its ruling must be affirmed. It is next contended by counsel for plaintiffs that the court erred in refusing them a continuance for the purpose of proving what Adam Miller had testified to in his deposition, he having died since the deposition was given. Plaintiffs stated in their motion for continuance that they could prove by the notary who took the'deposition the testimony given by Adam Miller in it. The deposition given by Adam Miller would be the best evidence of what he testified to, and if it could be proven in this way, or by the testimony of the notary who took it, i't is manifest that the action of the court in suppressing the deposition was a vain and useless thing; for by this means the plaintiff could do indirectly what the court had already held they could not do. Counsel for plaintiff, in support of their contention, rely on cases where the testimony of a deceased witness, once properly taken, can be read in evidence in any subsequent suit between the same parties. One of the prerequisites of admitting what a deceased witness testified to is proof of the fact that the testimony was once leg-ally taken; and. as the court has already held that the deposition of Adam Miller could not be legally read as evidence in the case, the deposition stands as if it had never been taken in the case, and proof of what he stated in it would be merely hearsay for the same reason that proof of what he had stated at any other time, or in an ex parte affidavit, would be hearsay. It is next contended by counsel for plaintiffs that the court erred in refusing certain instructions asked by them on the measure of damages. The verdict of the jury was in favor of the defendant. Hence, the question of the measure of damages did not arise, and plaintiffs are not prejudiced by the court’s refusal to give the instructions, even if they were correct. Capitol Fire Ins. Co. v. Kaufman, 91 Ark. 310; Jonesboro, L. C. & E. Rd. Co. v. Cable, 89 Ark. 518. It is next insisted by counsel for plaintiffs that the court erred in giving instruction No. 7 at the request of the defendant. It is as follows: “The court instructs you that the defendant is not responsible for any damage that was caused to the peaches which was caused by delay in loading the cars after same were furnished by defendant for loading.” Counsel for plaintiffs contend that this instruction is open to the objection that the court assumed that the peaches were damaged because of the delay in loading the cars. If counsel thought the instruction was open to this objection, they should have made a specific objection to it, and doubtless the trial court would have changed the verbiage of it to meet their objection. The plaintiffs ordered cars for the shipment of peaches to be sent to Greenwood at a certain time, and the cars were delivered to them by the railroad company. Greenwood had no icing station or ice house. The testimony for the defendant shows that the cars were iced at Fort Smith, the nearest icing station, before they were sent to Greenwood and delivered to the plaintiffs for loading. There was testimony from which the jury might infer that the plaintiffs did not promptly load the cars and that the damage to the peaches was sustained on this account. The testimony of the defendant shows that after the oars were loaded they were promptly moved forward and re-iced at the first station and properly iced from that time on until they arrived at their destination. On the other hand, the theory of the plaintiffs was that the defendant did not properly ice the cars in the first instance and did not keep the cars properly iced in transit and did not properly move them after plaintiffs loaded them.. The jury was told that it was the duty of defendant to furnish cars to plaintiffs properly iced and that it was also defendant’s duty to keep them properly iced in transit and that if it did not do so it was liable. The jury was also told that if it found there was a negligent delay on the part of the defendant in moving and handling the cars it was liable. The instructions of the court, when considered as a whole, show that the respective theories of the parties to this suit were fully and fairly submitted to the jury, and it can not be doubted that if the objection now made to instruction No. 7 had been made in the trial court, the court would have chang*ed the language of the instruction in accordance with the request of the plaintiffs. Counsel for plaintiffs also insist that the court erred in giving instruction No. 12 at the request of the defendant, which is as follows: “Defendant was not required to re-ice the cars at Greenwood, if the necessity to do so was caused by delay in loading the cars. But it was its duty to re-ice same as soon as it could in the due course of its business do so after same were loaded and turned over to it.” In support of their contention they cite the case of St. Louis, I. M. & S. Ry. Co. v. Renfroe, 82 Ark. 143. But we do not think that case an authority for their contention. In that case the car had been loaded at Alma, Ark., and was en route to destination when it reached Van Burén, Arkansas; and the court held that the evidence:warranted the jury in finding that the railroad company was negligent in failing to use ordinary care to see that the car w>as kept properly iced at Van Burén before it started to Kansas City. Here the car was loaded at Greenwood, and there was no icing station there. The cars, according to the testimony of the defendant, had been properly iced at the nearest station before they were sent to Greenwood, and the court properly told the jury that the railway company was not required to re-ice the cars at Greenwood if the necessity to do so was caused by the delay of the plaintiffs in loading the cars. To hold otherwise would prevent shippers of fruit at stations where there was no icing plant from shipping out their fruit in refrigerator cars because the railroad company could not .be required to keep icing plants at all of its stations. Objections were made to certain other instructions given at the request of the defendant, ibut these objections are based on the principle of law last discussed by us, and what we have already said applies equally to the other instructions complained of. Therefore, we do not deem it necessary to set them out or to discuss them in detail. It follows that the judgment must be affirmed.