142 S.W.2d 970 | Ky. Ct. App. | 1940
Reversing.
While crossing Third Street, in Louisville, Joseph Nowak was struck and injured by the automobile of Alfred S. Joseph. A verdict was returned for the defendant in the former's suit for damages. We reversed the judgment because of erroneous instructions. Nowak v. Joseph,
The mandate was filed January 3, 1939, and the case assigned for trial on March 22nd. On that day the court sustained the defendant's motion that the testimony of two witnesses given on the former trial be read as their evidence. The parties announced ready for trial. Because of congestion the case was transferred to the Second Division of the Jefferson Circuit Court. There the plaintiff renewed his objection to the reading of the testimony of the two absent witnesses; but it was again overruled. Proper exceptions were saved. The testimony was read and the plaintiff assigns this as prejudicial error.
In support of his motion the defendant filed his affidavit reciting that the two witnesses were absent from Kentucky; that he was informed one of them was in Hollywood, California, and the other in Florida, and that he did not know the address of either. That was all. The question is whether that was sufficient to authorize the trial court, in the exercise of the discretion given him by Section 4643 of the Statutes, to permit the reading of the testimony. The statute provides that testimony of witnesses reported by the court's official reporter may be used in any subsequent trial of the same case between the same parties, "where the testimony of such * * * witnesses can not be procured, which fact must be made to appear satisfactorily to the court by the affidavit of the party desiring to use the same, or his attorney." *737
In Home Laundry Company v. Cook,
The appellant makes the further point that it was error to permit the introduction of two photographs of the defendant's automobile involved in the accident and another of the street with cars parked at the curb, since the photographs were taken more than a year after the accident. The defendant proved that the conditions disclosed were substantially the same as at that time. However that may be, the same photographs were introduced on the former trial and no question was raised on the appeal as to their incompetency. The effect of the decision was that they were properly admitted and that is the law of the case.
Wherefore, the judgment is reversed.