At the conclusion of the charge, there was a discussion as to whether these estimates should go to the jury. We ruled they should not. (See Rec. pp. 5528-5532.)
The next reason urged by defendants is that the court erred in not withdrawing a joror and continuing the case, because of remarks of counsel with reference to the plea of nolo contendere entered by defendants in the criminal proceedings, and offering no defense therein.
However, counsel for defendants in their opening to the jury mentioned the fact that the defendants pleaded nolo contendere to the criminal charges. Likewise, counsel for defense, in final argument to the jury, urged that no admission of liability was to be implied from the fact that defendants had pleaded nolo contendere in the criminal proceedings.
In disposing of the motion to withdraw a juror and continue the case, we said to the jury (Rec. p. 5488): "The Court: We decline the motion to withdraw a juror. Counsel may proceed with his argument. The fact that there was a plea of nolo contendere having been mentioned by counsel for the defendants in the course of their argument, counsel I think may discuss that subject.Possibly he went a little further than he should have gone in the discussion of it, because, as I look at it, there is no inference of liability in this case to be drawn from the mere fact that they entered a plea of nolo contendere in the case that was brought against them in the criminal court. This case has to be decided by the jury upon the evidence that is offered before them in this case. My own view is that the matter ought not to have been adverted to by counsel on either side in the course of their arguments." This I believe was a proper disposition of this motion.
The next reason urged by defendants for a new trial, is that the court erred in refusing to strike out testimony of Proctor as to what would have been a fair low bid for certain of the projects involved in this suit, because it was based on hearsay. There is no merit in this proposition. Proctor testified to his own estimate, as to what would have been a fair low competitive bid for these projects. The fact that Proctor employed Lesterick to assist him in securing price-lists of materials, would not make his testimony hearsay. Proctor certainly could employ a man to assist in preparing his compilation of prices quoted by manufacturers on materials required to do this electrical work. The final result, as given in court, was Proctor's own estimate as to what would have been a fair low bid.The weight to be given that testimony was, of course, for the jury.
Assignments of error, Nos. 41 to 47 inclusive, relate to exceptions taken by defendants to portions of our charge to the jury. Counsel, in their brief, submit no specific argument as to them. As they relate largely to matters that we have elsewhere discussed in this opinion, we do not deem it necessary to discuss again the legal questions involved therein, and merely hold they are without merit.
The next assignment of error relates to defendants' offer to prove their reputations for honesty, fair dealing, and integrity. As we have already held this to be a civil action to recover a civil sanction, this evidence is not competent.
As to assignments of error: No. 49, relating to the comment of the court as to defendants not testifying; No. 50, relating to reformation of the verdict; No. 51, relating to the amount of the verdict; and No. 52, relating to the admission of evidence regarding the County Home at Woodville -- these matters have all been discussed elsewhere in this opinion. These assignments of error are without merit.
In assignments of error Nos. 53 and 54, defendants raise the question of whether counsel for defendants were improperly limited in their cross-examination of plaintiffs' witness Proctor, the expert called to testify concerning what would have been a fair low bid in the open market for the projects involved in this case. The record will show that counsel for defense devoted a great deal of time to the cross-examination of this witness, covering thoroughly every phase of this witness' testimony in chief. Surely, the time of the court and jury should not be taken up in having this witness refigure these projects in open court.
When this subject was up at the trial, the court then said (Rec. 3298, 3299):
"The Court: It is just a question, gentlemen, whether we will take the time to have this witness make this refiguration on the witness stand or whether he may come in with his breakdown and be cross examined about it later. It does not seem to me advisable to spend court time having him figure here on the witness stand these items which he says he cannot give now, he will have to take some time to refigure it."
"Mr. Eckert: Will Your Honor note us an exception to that ruling?"
We cannot see that the defendants could be harmed by this ruling.If that course had been followed, the defendants then would have had full opportunity to cross-examine the witness Procetor on the figures submitted. This trial lasted from December 2, 1940, to March 22, 1941. It certainly was asking too much for the court and jury to sit idly by while this witness made his computations over again.
The question camp up again at the trial (Rec. pp. 3578-3580), when the witness was asked to recompute from the plans of one of the projects the amount of wire required. The witness said it would take about sixteen hours to make the necessary measurements on the plans (Rec. p. 3578). Certainly the court and jury should not be required to sit and watch the witness do this figuring on the witness stand. We cannot see anything in our ruling on these two matters that is inconsistent with substantial justice to both parties. Therefore, even if there be error in our action as to these two matters, no harm has been done. See Rule 61 of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c.
On the whole case, therefore, we conclude that the motions for judgment n.o.v., or in lieu thereof, for a new trial, are without merit, and should be denied.
Orders may be submitted accordingly.
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