94 Ark. 350 | Ark. | 1910
(after stating the facts). The first and principal ground of reversal urged by counsel for appellant is that the court erred in admitting the testimony of Jesse Webb to the effect that the telegram in question was delivered to him by W. B. Redmond about dark after he had returned from the burial of his mother, and that this was the first time he had seen it. We are of the opinion that the court erred in admitting this testimony. The complaint specifically alleged that the negligence occurred at Eudora, and no charge of negligence elsewhere was made. The appellant joined issue on this alleged act of negligence, and prepared to meet it. In the midst of the trial the testimony referred to was offered. It tended to show negligence on the part of appellant at Pioneer, which was not in issue by the pleadings. Counsel for appellant objected to its introduction on this ground, and claimed that they were taken by surprise, and were not prepared to meet it. They asked that, if the pleadings should be considered amended so as to put it in issue as a new or additional ground of negligence, they be granted a continuance. The court, after some argument on the part of counsel on both sides in regard to the matter, granted leave to counsel for appellee to amend their complaint so as to charge negligence at Pioneer. Counsel for appellee declined to so amend, and the court permitted the testimony to be introduced over the objections of counsel for appellant. Their exceptions to the ruling of the court were saved/ and the alleged error constitutes one of their grounds for a new trial. It will be seen that this is not a case where the pleadings will be considered amended to conform to the proof; for counsel for appellant specifically objected to the introduction of the evidence, and counsel for appellee, although granted leave to do so, declined to amend their pleadings so as to charge negligence. on the part of appellant at Pioneer. The action of the court was in effect to permit a recovery upon an issue not in the case, and which could not be brought into the case because it had not been pleaded, and appellee specifically declined to plead it when granted leave to do so. We cite as bearing on the question and supporting the rule announced the following cases: Westmoreland v. Plant, 89 Ark. 147; Choctaw, O. & G. Rd. Co. v. Donovan, 71 Ark. 197; St. Louis & S. F. Rd. Co. v. Vaughan, 84 Ark. 311; St. Louis, I. M. & S. Ry. Co. v. Power, 67 Ark. 142; St. Louis, I. M. & S. Ry. Co. v. Sweet, 63 Ark. 563.
A recognition of the rule was made in the case of Western Union Telegraph Co. v. Lewis, 89 Ark. 375, in which we said: “It is insisted that the court erred in refusing to instruct the jury that there was no evidence of negligence at Abbott. There was no prejudice in this. At the conclusion of the testimony of the appellee, all evidence tending to show any negligence on the part of the company at Abbott was withdrawn from the consideration of the jury. The instructions of the court show that the case was submitted to the jury solely on the charge of negligence at Fayetteville. The minds of the jury were directed clearly and explicitly to the question of negligence at Fayetteville, and thus it appears that the question of negligence at Abbott was eliminated from the case.”
This was not done in the present case. As we have already seen, the testimony was admitted over the objections of appellant, and after appellee had declined to amend his complaint to allege negligence at Pioneer.
The instructions given at the request of appellee and over the objections of appellant submitted to the jury the question of negligence of appellant generally, and without reference to the particular act of negligence alleged in the complaint.
Inasmuch as appellee on a new trial may elect, and be granted leave by the court, to amend his complaint to put in issue the alleged negligence at Pioneer, we need not consider the other assignments of error.
For the error in the admission of the testimony of Jesse Webb as indicated in the opinion, the judgment will be reversed, and the cause remanded for a new trial.
