Fechheimer-Kiefer Co. v. Kempner

Smith, J., (after stating the facts). We think the remark of the court in regard to the purpose and effect of appellee’s affidavit constitutes prejudicial error which calls for the reversal of the case. The statement of the court may have been true and appellee’s action in making this affidavit may have been authorized 'by appellant; but that is, the very issue the jury was trying, the decision of which would necessarily be controlling in the rendition of their verdict. Appellant was strongly urging that appellee, in making this affidavit, was acting for himself, and not for it, and offered much evidence in support of this position, and the jury should have been permitted to pass upon that contention uninfluenced by any action of the trial court. Appellee had been, permitted to explain this affidavit in detail, and had been sharply cross-examined in regard to it, and an attempt had been made by appellant’s counsel to show by cross-examination that appellee’s version of the transaction was not true, and the remark of the court, upon the formal introduction of the affidavit in evidence, tended, in a measure at least, to sustain appellee in his contention. (1-2) The rule which should he 'Observed by trial judges in oases arising before them, where there is a question of the veracity of witnesses, is stated by this court in the opinion in the case of Sharp v. State, 51 Ark. 155, where it was said: “In .all trials the judge should preside with impartiality. In jury trials especially, he ought to be cautious and circumspect in his language -and conduct before the jury. He should not express or intimate an .opinion as to the credibility of a witness or as to controverted facts. For the jury are the sole judges of fact and the credibility of witnesses; and the Constitution expressly prohibits the judge from charging them as to the facts. The manifest object ef this prohibition was to give to the parties to the trial the full benefit of the judgment of the jury, as to facts, unbiased and unaffected by the opinion of judges. Any expression or intimation of an opinion by the judge as to questions of fact or the credibility of witnesses necessary for them to decide in order for them to render a verdict would tend to deprive one or more of the parties of the benefits guaranteed by the 'Constitution, and would be a palpable violation of the organic law of the State.” (3) We think,, too, the court should not have permitted Cohn to detail ‘the conversation which he had with appellee in regard to 'the representations which appellee was to thereafter make to appellant to secure the desired extension of time for the payment of the account. It is. said this evidence is not erroneous and prejudicial, because it is admitted that appellee was appellant’s agent, and that appellant is, therefore, bound by these statements. But this is not a suit between appellant and Cohn, and Cohn’s evidence serves to bolster up the self-serving statements of Kempner in this suit against Kempner. The rule which excludes proof of self-serving acts and declarations renders this evidence incompetent. Hamburg Bank v. George, 92 Ark. 472. For the errors indicated, the judgment of the court below will be reversed and the cause remanded. for a new trial. Hart and Kirby, JJ., dissent.