Industrial Mutual Indemnity Co. v. Perkins

Supreme Court of Arkansas

Industrial Mutual Indemnity Co. v. Perkins

98 S.W. 709, 81 Ark. 87, 1906 Ark. LEXIS 451

CourtSupreme Court of Arkansas

DecidedNovember 26, 1906

StatusPublished

Cited by7 cases

This text of 98 S.W. 709 (Industrial Mutual Indemnity Co. v. Perkins) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Industrial Mutual Indemnity Co. v. Perkins, 98 S.W. 709, 81 Ark. 87, 1906 Ark. LEXIS 451 (Ark. 1906).

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Opinions

Wood, J.,

(after stating the facts.) The court did not err in refusing a peremptory instruction for appellant. It was a question for the jury, under the evidence, as to whether or not the premium had been paid. The court correctly 'instructed the jury on that question. But the court erred in permitting counsel for the appellee in his argument “to call attention to the fact that the defendant (appellant) had not produced Nicholson and to insist that its failure to produce him would warrant the jury, under the circumstances, in drawing an unfavorable inference against the defendant (appellant) that the premium had been paid, as Nicholson was perhaps the only living person who knew certainly the facts about the payment of the premium,” and erred in refusing to instruct that no presumption unfavorable to appellant could be indulged on account of the absence of Nicholson. The uncontradicted proof showed that Nicholson was not in the employ of appellant at the time of the trial, and that appellant knew nothing of his whereabouts. The witness under such circumstances is as accessible to one party as the other. Therefore no unfavorable presumption can be indulged against either for a failure to produce the witness. Reynolds v. Ry. Co., 85 S. W. 323; See, also, Daggett v. Champlain Mfg. Co., 47 Atl. Rep. 1081; Scovill v. Baldwin, 27 Conn. 316; Diel v. Mo. Pac. Ry. Co., 37 Mo. App. 454.

Reversed and remanded for a new trial.

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Wood, J.,

(after stating the facts.) The court did not err in refusing a peremptory instruction for appellant. It was a question for the jury, under the evidence, as to whether or not the premium had been paid. The court correctly 'instructed the jury on that question. But the court erred in permitting counsel for the appellee in his argument “to call attention to the fact that the defendant (appellant) had not produced Nicholson and to insist that its failure to produce him would warrant the jury, under the circumstances, in drawing an unfavorable inference against the defendant (appellant) that the premium had been paid, as Nicholson was perhaps the only living person who knew certainly the facts about the payment of the premium,” and erred in refusing to instruct that no presumption unfavorable to appellant could be indulged on account of the absence of Nicholson. The uncontradicted proof showed that Nicholson was not in the employ of appellant at the time of the trial, and that appellant knew nothing of his whereabouts. The witness under such circumstances is as accessible to one party as the other. Therefore no unfavorable presumption can be indulged against either for a failure to produce the witness. Reynolds v. Ry. Co., 85 S. W. 323; See, also, Daggett v. Champlain Mfg. Co., 47 Atl. Rep. 1081; Scovill v. Baldwin, 27 Conn. 316; Diel v. Mo. Pac. Ry. Co., 37 Mo. App. 454.

Reversed and remanded for a new trial.

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98 S.W. 709, 81 Ark. 87, 1906 Ark. LEXIS 451, Counsel Stack Legal Research, https://law.counselstack.com/opinion/industrial-mutual-indemnity-co-v-perkins-ark-1906.

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