Fritz v. St. Louis, Iron Mountain & Southern Railway Company

• Citation: 148 S.W. 74,243 Mo. 62
• Parties: A. FRITZ and J. E. GROH, Partners under Firm Name of HOBERG MILLING COMPANY, Plaintiffs in Error, v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY
• Decision Date: 31 May 1912
• Court: United States State Supreme Court of Missouri

148 S.W. 74

243 Mo. 62

A. FRITZ and J. E. GROH, Partners under Firm Name of HOBERG MILLING COMPANY, Plaintiffs in Error, v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY

Supreme Court of Missouri, First Division

May 31, 1912

Appeal from Lawrence Circuit Court. -- Hon. F. C. Johnson, Judge.

Affirmed.

J. V McPherson and Fyke & Snider for plaintiffs in error.

(1) The court erred in permitting counsel for defendant, in his opening statement, to state to the jury: "I allege they were fully insured, and were fully paid by the insurance company, that the insurance company took a subrogation and there is no authority for the plaintiffs to sue." And the court erred in overruling plaintiff's objection to that statement. Gore v. Brockman, 138 Mo.App. 231; Fuller Co. v. Dassagh, 101 Ill.App. 664; Marigold v. Traction Co., 80 N.Y.S. 861; Iverson v. McDonald, 36 Wash. 73. (2) It was erroneous and highly prejudicial to permit defendant to get before the jury the fact that plaintiffs had insurance and had collected insurance money. Matthews v. Railroad, 142 Mo. 645; Erhart v. Railroad, 136 Mo.App. 617; Foster v Railroad, 147 Mo.App. 547. (3) The court erred in overruling plaintiff's objection to these questions "Q. Up to that time had you heard it contended in Groh's presence that somebody had broken into the mill and set it afire? Q. Did you ever hear it contended that the railroad had set it afire until after the adjuster came there and the insurance company had settled?" (4) One man is as capable of judging how far a spark will fly and live as another. It is not a question for experts. It is for the jury, upon all the facts to determine that question. Glasgow v. Railroad, 191 Mo. 347; Rogers on Expert Testimony, p. 8, sec. 5, p. 18, sec. 10; Graney v. Railroad, 157 Mo. 666; Hurst v. Railroad, 163 Mo. 309; Ayers v. Railroad, 190 Mo. 228; Lee v. Knapp & Co., 155 Mo. 641. (5) The court erred in overruling defendant's objection to these questions propounded by defendant to its section foreman: "Q. Did anyone come to you to secure or borrow matches? Q. What did he say?" Such evidence was purely hearsay and ought to have been excluded. Field v. Railroad, 113 Mo.App. 645. (6) The conduct of defendant in making its offer of proof, in the presence of the jury, to the effect that plaintiffs had been paid $ 4900 insurance money; that one of plaintiffs' counsel was present assisting plaintiffs, and that he represented the interests of the insurance company in this litigation; that the policy of insurance contained a subrogation clause, notwithstanding the court sustained plaintiffs' objections to each of the foregoing offers, was prejudicial, and such offers should have been made. Iverson v. McDonald, 36 Wash. 73; Marigold v. Traction Co., 80 N.Y.S. 861. (7) The court erred in giving this instruction for defendant: "The court instructs the jury that the evidence upon which the plaintiffs seek to recover in this action is purely circumstantial, and if the jury find that the circumstances connected with the origin of said fire are more consistent with the theory that it caught from some other source than that it was set out or communicated by an engine of the defendant, your verdict will be for defendant." It is a comment on the evidence and the weight thereof. There was no substantial evidence upon which to base a theory that it caught from some other source.

Robert T. Railey and Edward J. White for defendant in error.

(1) The plaintiffs' evidence was insufficient to establish any reasonable probability that the defendant's engine had set their mill on fire; and the evidence of the plaintiffs showing that the fire was not discovered for over three hours after the defendant's train passed, and failing to show that the engine pulling the train was emitting sparks at the time, or that this engine had ever emitted sparks and the evening being damp, misty and snowy and the air full of moisture, plaintiffs failed to establish a prima facie case for the jury, and the defendant's demurrer to the evidence of the plaintiff should have been sustained. Gibbs v. Railroad, 104 Mo.App. 276; Manning v. Railroad, 137 Mo.App. 631; Peck v. Railroad, 31 Mo.App. 123; Bank v. Railroad, 98 Mo.App. 330; Peffer v. Railroad, 98 Mo.App. 291; Funk v. Railroad, 123 Mo.App. 169; Otis v. Railroad, 112 Mo. 622; Sheldon v. Railroad, 29 Barb. 226; Railroad v. De Groff, 29 P. 664; 1 Amer. & Eng. Ency. Law, 512; Wheeler v. Railroad, 67 Hun, 639; Railroad v. Morton, 3 Colo.App. 155; Railroad v. Blatz, 114 Ind. 661; Musselwhite v. Railroad, 4 Hughes (U.S.), 166; 13 Amer. & Eng. R. Cas. 479. (2) It was not error under the defense pleaded in the answer, to prove that the plaintiffs had been fully paid the entire value of their property by the insurance company and that the cause of action had been assigned to the insurance company, and instead of excluding this defense the court should have permitted it to stand before the jury. (a) This defense was a proper one, because the insurance company, upon the payment of the value of the property destroyed by the fire, was subrogated to the extent of their payment, to the remedies of the insured and succeeded to the entire cause of action in controversy. Ins. Co. v. Railroad, 74 Mo.App. 106; Sheldon on Subrogation, sec. 230; Ins. Co. v. Railroad, 149 Mo. 177; Railroad v. Ins. Co., 139 U.S. 223; Railroad v. Ins. Co., 59 Kan. 432; Ins. Co. v. Railroad, 73 N.Y. 399; Ins. Co. v. Railroad, 132 N.C. 75; Ins. Co. v. Walsh, 18 Mo. 230; Clark v. Ins. Co., 19 Mo. 54; Ins. Co. v. Stave Co., 61 Ark. 1; 24 Am. & Eng. Ency. Law, 193; Ins. Co. v. Hutchings, 21 N.J.Eq. 107; Ins. Co. v. Railroad, 73 N.Y. 399; Blanchard v. Engine Works, 142 Mo.App. 319; 4 Cooley's Briefs on Ins., pp. 39, 27; Allen v. Railroad, 94 Wis. 93. (b) The action being at law, under the code of this State, if the plaintiffs had been paid the full value of their property and had assigned the right to recover for any destruction thereof, the action would have to be brought in the name of the insurance company as the real party in interest. R. S. 1909, sec. 1729. Under this provision of the code, the assignee is the real party in interest and must sue in his own name. Dickey v. Porter, 203 Mo. 1; Spelter Co. v. Ins. Co., 71 Mo.App. 658. (c) But whether the defense pleaded in the answer was competent or not, in striking it out and in refusing to admit evidence to establish that defense and in giving the plaintiffs' instruction 1, telling the jury that the fact that the property had been insured and that the plaintiffs had received certain money from the insurance companies, could not in any manner diminish the plaintiffs' claim against the defendant, if its engine had burned the mill, any possible error resulting from the statement of plaintiffs' counsel to the jury and the reading of this defense set up in the answer, was forever taken away from the defendant and any possible injury to the plaintiff from counsel's statement in connection with this defense, was fully cured. Peck v. Traction Co., 131 Mo.App. 143; State v. Gregory, 170 Mo. 598; Smith v. Butler, 48 Mo.App. 663; Lumber Co. v. Hartman, 45 Mo.App. 647; Obert v. Strube, 51 Mo.App. 621; Ruth v. Railroad, 70 Mo.App. 190; Wendler v. Furnishing Co., 165 Mo. 127.

LAMM, J. GRAVES, P. J., concurs in separate opinion.

OPINION

LAMM, J.

Plaintiffs (a firm) owned and ran a grist mill hard by defendant's railroad at a way station, Hoberg, in Lawrence county. In the shank of the evening of January 10, 1908, mill and contents (barring a salvage of the boiler and engine, put at $ 1000 to $ 1500) were burned. Alleging the fire caught from defendant's locomotive, plaintiffs sued in the Lawrence Circuit Court, putting their damages at $ 17,163.10.

On issues joined, the jury found for defendant. From a judgment following, plaintiffs appeal -- assigning error in that the court permitted counsel in his opening statement to make prejudicial remarks, admitted incompetent testimony, permitted repeating prejudicial questions, erred in refusing to strike out testimony and in giving an instruction. For defendant it is argued, contra, that there is no such error. Further, in effect, that plaintiffs made no case; hence (counsel say) an asked demurrer to the evidence should have been given, and that such alleged error, if any exists, does not affect the merits or concern an appellate court.

Such, in outline, are the issues below and here.

I. The administration of justice cannot be too often or too much quickened by recourse to salutary statutes intended to produce just practical results -- this, as over against the vulgar and pernicious fallacy that a law suit on appeal is a mere game of wits to be played according to highly artificial rules, over which "game" we sit as a mere umpire, according points to one player or another by the dry and lifeless rules of the game for the sake of the game itself. Elevated and uniform justice could not be administered without rules. If there were no rules, we would be governed by men, not laws, by discretion, a crooked metewand, not by fixed rules known to all. Order is not only Heaven's first law, but order is of the essence of the science of jurisprudence. But rules are not the ultimate end, the main thing -- that main thing is justice itself, the very right of the matter. The rules are only in aid of that main thing -- the working tools whereby it is attained.

Section 1850, Revised Statutes 1909, reads: "The court shall, in every stage of the action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party; and no judgments shall be reversed or affected by reason of such error or defect."

Section 2082, Revised Statutes 1909, reads: "...