ARK.] 27 SHIDE V. BURNS. Opinion delivered February 25, 1924. APPEAL AN6 ERROR-INCOMPETENT TESTIMONY-WAIVER 0} ; OBJECTION.- By failure to object to incompetent but relevant evidence, a party will be held to have waived objection, and a verdict based upon such ey idence will be sustained on appeal. Appeal from Mississippi Circuit Court, Chickasawba District; W. W. Bandy, Judge; affirmed.
28 SHIDE V. BURNS. [163 C. W. Barham, T. J. Crowder, for appellant. ■ Julius Shicle was not in the employ of his father at the time of the * injury, and was engaged upon business of his Own, not authorized by his father, and the father could n6t he held liable therefor. 133 Ark. 327. Coston & Coston, for appellee. .The statement of Miss Shide to Mrs. flurns was competent as a part of the res gestae. 108 S. W. 1055. But, even if incompetent, it was not objected to, and a verdict based upon it would not be overturned on appeal. 12 Ark. 651 ; 7 S. W. 388. Where there is any evidence to sustain a verdict, it becomes conclusive upon appeal. 143 S. W. 93; 232 S. W. 756. HUMPHREYS, J. Appellee instituted suit against appellant and his son, Julius Shide, in the circuit court of Mississippi County, Chickasawba District, to recover damages for a personal injury received through the alleged negligence of Julius Shide in operating his father's automobile while delivering goods for him. Appellant filed an answer, denying that the injury resulted through the negligence of his son in operating his car, or that, he was making a delivery for him when the injury occurred; also denying that appellees sus— tained damages in the amount claimed 'or in any other-sum. The cause was sent to the jury upon the issues - joined, which resulted in a verdict and consequent judgment for $375, from which is this appeal. Appellant concedes that the evidence is sufficient to support • the finding that appellee was injured through the negligent operation of his car by his son, but contends for a reversal of the judgment upon •he alleged ground that there is no substantial testimony in the record tending to show that his son was using the car to deliver goods for him when the injury occurred. Julius Shide testified that he had driven the car to town for the purpose of getting some material to. he used in constr•eting a radio set for himself ; that the injury occurred when he was backing the car out of the
ARK.] SHIDE V. BURNS. 99 place where he bad parked it. He was corroborated in this statement by appellant. ' Appellee testified, without objection, that, immediately after the injury,- Selma Shide, daughter 'and bookkeeper for appellant, came out of his place of business and told her that she was sorry the boy ran over her, but that she should realize that lie was nothing but .a child; that, at the time of the injury, he was in a hurry to deliver something for his father. While this testi-meny was hearsay, and perhaps inadmissible, no objection was made or exception saved to its introduction. By not objecting, appellant acquiesced in the admission of the testimony, and is in no position to claimn . that it was incoMpetent. It tended to prove the issue, and it was the duty of the jury to treat it as legitimate testimony for that purpose. Maine v. Gordon, 12 Ark. 651; Frauenthed v. Bridgeman, 50 Ark. 348. This relevant though incompetent testimony tended to .show that the boy was serving his father at the. time the injury occurred. The judgment is therefore affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.