The Springfield Fire and Marine Insurance Company v. Lusk
| Citation | 223 S.W. 804,205 Mo.App. 185 |
| Parties | THE SPRINGFIELD FIRE AND MARINE INSURANCE COMPANY, Appellant, v. JAMES W. LUSK et al., Receivers of the ST. LOUIS AND SAN FRANCISCO RAILROAD COMPANY, Respondents |
| Decision Date | 04 November 1919 |
| Court | Court of Appeal of Missouri (US) |
Re-filed June 17, 1920. Separate Concurring Opinion Filed June 17, 1920.
Appeal from the Circuit Court of Franklin County.--Hon. R. A Breuer, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Leonard & Sibley and Jesse H. Schaper for appellant.
(1) It is error to select one of the issues, and instruct the jury that the burden was not on the defendant to prove the facts that would support or defeat the issue. It singles out the issue and creates a false impression in the mind of the jury. (2) It is error to instruct that no burden rested on defendant to explain "how or by what means said fire was started." Colloquial English applies the phrase "starting a fire," to mean a deliberate, human, intentional act and the effect is to raise in the minds of the jury the idea of an intentional act on the part of some human being. (3) It is error to instruct that "probability" of defendants fault, established by the evidence, was not sufficient to entitle plaintiff to a verdict. "Probability" is the equivalent of "preponderance of evidence," and is the correct standard of proof required to support a verdict. 17 Cyc. 755; 10 R. C. L. 1012; 17 Cyc. 761; McKee v. Verdin, 96 Mo.App. 271; Bauer Gros. Co. v. Sanders, 74 Mo.App. 660; Willard Oil Co. v. Riley, 29 Okla. 19; Lead Co. v. Railroad, 123 Mo.App. 400-402; Sheldon v. Railroad, 14 N.Y. 223; Field v. Railroad, 32 N.Y. 339; Railroad v. Richardson, 91 U.S. 470; Smith v. Railroad, 63 N.H. 25; Waddell v. Railroad, 146 Mo.App. 606; Campbell v. Railroad, 121 Mo. 349; Markt v. Railroad, 139 Mo.App. 456; Hudspeth v. Railroad, 172 Mo.App. 586; Cass County v. Green, 66 Mo. 498; Stanton v. So. Ry., 56 S.C. 398; Gallagher v. Crooks, 132 N.Y. 344; Hoffman v. Loud, 111 Mich. 158; Lillstrom v. Railroad, 53 Minn. 468; Felch v. Railroad, 66 N.H. 323; Bain v. State, 74 Ala. 39; Crabtree v. Reed, 50 Ill. 207; Williams v. State, 98 Ala. 22; Gilmore v. State, 99 Ala. 159; Fuller v. Rounceville, 29 N.H. 563. (4) It is error to instruct that "probability or even a strong suspicion" of defendant's fault, was not sufficient to entitle plaintiff to a verdict. "Suspicion" has no legal standing as the basis of a verdict. The phraseology used conveyed the meaning that probability was of less legal weight and importance than a mere suspicion. Railroad v. Shieder, 88 Tex. 165; Kinstan Mills v. Kuhne, 129 App.Div. (N. Y.), 258; Giddens v. Misk, 4 Ga. 370; McCalla v. State, 66 Ga. 348; Stuart v. Farmers Bank, 137 Wis. 66; U. S. v. Green, 136 F. 618, 628; Am. Surety Co. v. Pauly, 72 F. 470, 477. (5) It is error for the court to tell the jury that, to hold defendant, it must "find and believe from the evidence" that the sparks caused the fire, and also to tell them, in the same instruction, that, to hold defendant, they must find "from the greater weight of all the credible evidence in the case" that the sparks caused the fire. If these two rules are contradictory, one of them is necessarily error. If they are not contradictory, then it was error to give undue emphasis to the proposition of law by means of the repetition. 38 Cyc. 1681; Green Ridge Railroad Co. v. Brinkman, 64 Md. 61; Waller v. Ross, 100 Minn. 12; 14 R. C. L., p. 779. (6) It was error to instruct that the plaintiff sought to recover solely upon circumstantial evidence, when, in point of fact, all or most of plaintiff's evidence was direct. 1 Jones on Evidence, p. 14; Watson v. Adams, 65 So. Rep. 532; Hudspeth v. Railroad, 155 S.W. 868; Dunn v. State, 63 S.W. 573; Sieber v. Pellitt, 200 Pa. 58; Bryce v. Railway-129 Iowa 342. (7) It was error to instruct that plaintiff's evidence was "purely and altogether" circumstantial, particularly when contrasted, in the same instruction, with "credible evidence." This minimizes the value of circumstantial evidence, is a comment on the evidence, and invades the province of the jury. It deprecates such of plaintiff's evidence as may be considered circumstantial. It is equivalent to saying: "Plaintiff's evidence is nothing in the world but circumstantial evidence." 1 Blashfield on Instructions, Sec. 396; Minniard v. Com., 158 Ky. 218; Rea v. Missouri, 17 Wall. 532; 38 Cyc. 1739; Glass v. Cook, 30 Ga. 133; McKay v. Seattle Co., 76 Wash. 257; 1 Jones on Evidence, p. 38. (8) It is error to press on the attention of the jury the question of the diligence or lack of diligence of the insured in rescuing goods from a burning building. The question for the jury was not whether the insured was sufficiently industrious, but whether it was safe to have continued longer the work of salvaging the goods.
W. F. Evans, Edw. T. Miller and James Booth, for respondents.
(1) That there is or might be a probability that the fire was communicated by sparks from one of defendants' engines is not, of itself, sufficient to authorize a verdict for plaintiff in this class of cases. Fritz v. Railroad, 243 Mo. 62; Bowden v. Railroad, 189 Mo.App. 148; Manning v. Railroad, 137 Mo.App. 631; Peck v. Railroad, 31 Mo.App. 123; Peffer v. Railroad, 98 Mo.App. 291; Bank v. Railroad, 98 Mo. 330; Gibbs v. Railroad, 104 Mo.App. 276; Funk v. Railroad, 123 Mo.App. 169; Moore v. Railroad, 28 Mo.App. 622; Glick v. Railroad, 57 Mo.App. 97; Yeager v. Railroad, 61 Mo.App. 594; Perkins v. Railroad, 103 Mo. 52; Frame v. Railroad, 209 S.W. 314; Taylor v. Lusk, 194 Mo.App. 133. (2) This case was fairly tried on the issue as to whether or not the fire in question was caused by sparks from one of defendants' engines, and the jury must be persumed to be men of intelligence and not misled by the use of mere surplus words, if any were used, in the instructions. Thornberry v. Thompson, 18 Mo.App. 426; Ghio v. Railroad, 125 Mo.App. 716; Baird v. Wilks, 218 S.W. 920. (3) The rule in this State is that there must be not only a probability that the fire was cause by sparks from the engine, but it must be improbable that it started in any other manner. Frame v. Railroad, supra; Taylor v. Lusk, supra. In other words, circumstances are only sufficient to make a prima facie case for plaintiff when it is shown by such circumstances, not only that the fire was probably caused by sparks from an engine, but that such is the most probable source of its origin. Frame v. Railroad, supra. (4) The probability as to the origin of the fire must be strong enough to induce in the minds of the jury a belief that the fire in fact did orginate from a locomotive. Lead Co. v. Railroad, 123 Mo.App. 394. (5) In this case there was affirmative evidence on part of respondents not only that fire from one of their locomotives did not cause the fire in question, but that it was actually caused by an independent and outside agency. Under these facts what is said by the courts as to the probable origin of fires does not apply to the facts of this case. Bowden v. Railroad, 184 S.W. 1174; Frame v. Railroad, supra. (6) We are admonished by the statute that judgments are not to be reversed in the absence of error materially affecting the merits of the case. Sec. 2082, R. S. Mo. 1909. (7) There is no hard and fast rule as to what words shall be used in instructions to juries. Schwabe v. Estes, 218 S.W. 908. (8) If, instead of repeating, respondents' instruction had been cut and made into three or four separate instructions containing the same identical language, it would not have been error to have given it. Baird v. Wilks, 218 S.W. 920. (9) Plaintiff's evidence was all circumstantial and under such circumstances it is a rule recognized by all of the courts that respondents were entitled to a cautionary or admonitory instruction; and instruction No. 2 was simply admonitory or cautionary. Hughes, Instructions to Juries, Sec. 49, p. 44. (10) Judgments can only be properly reversed by Appellate Courts for errors of commission and not for errors of omission. If instruction No. 2 should have defined circumstantial evidence and made it even plainer to the jury that a recovery could be properly had under such evidence, and failed or omitted to do so, then the proper remedy for plaintiff was to ask an instruction submitting the omitted matters, and in the absence of such request there is no just cause for complaint. Hooper v. Railroad, 125 Mo.App. 332. (11) The respondents were entitled to a direct and positive instruction on the law of circumstantial evidence; for the jury was not to be left to reconcile propositions by mere argument and inference. Toncrey v. Railroad, 129 Mo.App. 602. (12) The mere fact that a direction as to a finding for respondents was contained one time or four times in the instruction was not material error. It was a mere matter of repetition and not material. Baird v. Wilks, supra; Ghio v. Railroad, 125 Mo.App. 716. (13) Instruction No. 2 was not as strong for respondents as they were entitled to under the law. It authorized the jury to find for plaintiff, "if the facts and circumstances in evidence, when considered altogether (not plaintiff's evidence alone) were such as to prove (not beyond a reasonable doubt) to their satisfaction" that the fire was caused by sparks from one of defendants' engines. Respondents were entitled to an instruction telling the jury that the circumstances relied on by plaintiff must be such as to exclude every other reasonable conclusion than the principal fact. Fritz v. Railroad, supra, 78. (14) That the most probable source or cause of a fire is from sparks from an engine, in the absence of evidence to the contrary, is sufficient to make a prima facie case, the determination of which is for the trial court; but...
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