81 Ark. 87 | Ark. | 1906
Lead Opinion
(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.
Rehearing
on rehearing.
Opinion delivered December 24, 1906.
Appellant insists that the evidence of two witnesses completely overthrew the prima facie case made by the delivery of the policy and receipt. The oft-repeated declaration of this court that the testimony of witnesses, unimpeached and uncontradicted, reasonable and consistent in itself, and not in conflict with other testimony or established facts can not be arbitrarily disregarded, is relied upon, and appellant relies on, as applicable to this case, the last application of this principle in the recent case of Kansas City So. Ry. Co. v. Lewis, 80 Ark. 396., The court has gone carefully over the evidence again, and its discussion reveals this difference' of opinion: some of the judges do not regard it as falling within this category, and do not think it squares with the business principles involved in the trails-' action, and that it presents an unusual if not unreasonable story; others are doubtful of the application of this principle to this evidence, and one thinks the -evidence falls squarely within the rule. This diversity of opinion of the character of this evidence demonstrates that the minds of men may well differ about it, and therefore it should go to the jury.
Motion to modify denied.