American Ins. Co. of Newark, N.J., v. Fuller, 7 Div. 115.

• Decision Date: 24 March 1932
• Docket Number: 7 Div. 115.
• Citation: 140 So. 555,224 Ala. 387
• Parties: AMERICAN INS. CO. OF NEWARK, N. J., v. FULLER.
• Court: Alabama Supreme Court

140 So. 555

224 Ala. 387

AMERICAN INS. CO. OF NEWARK, N. J., v. FULLER.

7 Div. 115.

Supreme Court of Alabama

March 24, 1932

Appeal from Circuit Court, Clay County; W. B. Merrill, Judge.

Action on a policy of fire insurance by H. L. Fuller against the American Insurance Company of Newark, N. J. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals.

Reversed and remanded.

H. H Grooms and Coleman, Coleman, Spain & Stewart, all of Birmingham, for appellant.

Pruet &amp Glass, of Ashland, for appellee.

KNIGHT J.

Action by plaintiff, appellee, against defendant, an insurance company, to recover for loss by fire under a policy of insurance, issued by defendant.

The defendant pleaded the general issue, and a special plea, in which it alleged that the plaintiff willfully burned, or willfully and knowingly caused to be burned, the insured property, the recovery for which is made the basis of the action. The residence was destroyed by fire on the 25th day of November, 1929, and the barn and crib about eight or ten days later. No one, so far as the evidence discloses, was in the house at the time it was burned, and there was no eyewitness to either fire, that is, at the time the fire originated. The testimony tending to connect the plaintiff with the burning, as the guilty agent, was wholly circumstantial. We have read the evidence carefully, and are of the opinion that there was some testimony in the case which required its submission to the jury under defendant's special plea, whether slight, in its probative force, we are not called upon to here say. Therefore the plaintiff was not entitled to the general charge, and this conclusion necessitates a review of the case on errors assigned by appellant in the admission and exclusion of evidence, as well as on other questions presented for review.

Against objections and exceptions of the defendant the court permitted the plaintiff to make proof, by a number of witnesses, of the value of the property destroyed. The point of objection was that the witnesses were not shown to be qualified to give opinion evidence on the subject. Of course whether the witnesses-one or all-were qualified, under the rules of evidence governing the admission of opinion evidence, was a question addressed to the court whose finding will not be disturbed, except in case of manifest mistake; or unless, as otherwise stated, the discretion has been improperly exercised. Cyc. vol. 17, page 31, and notes thereunder. Each of the witnesses examined on the subject of the value of the property testified that he knew the property, and knew the market value of the several buildings destroyed and gave their opinions as to the market value.

It is a settled rule of evidence that, when the witness knows the property, and testifies that he knows the market value of the same, this proof, at least prima facie, meets the required test of qualification. The witness thus commits his conscience to the statement that he knows the property and knows its market value. In 22 Corpus Juris, p. 580, it is stated that "the witness' claim to knowledge may be sufficient to establish prima facie his qualification to be tested upon cross-examination."

In 17 Cyc. p. 116, the rule is thus stated: "(a) Ordinary Witness-(1) Personal Property. A witness, although other than the owner, whose actual knowledge is proved or can be assumed, as in case of common articles, but not otherwise, may state the value of personal property, such as farm or domestic animals, carriages, crops, houses, or other buildings."

In the case of Alabama Great So. Ry. Co. v. Moody, 92 Ala. 279, 9 So. 238, 239, it is said: "When the witness knows the property, no peculiar skill is requisite to qualify him to testify to its value; neither is it necessary that the opinion of the witness shall be based upon actual sales at the place. Though such sales are more reliable evidence of the market value, the witnesses may give their opinion, based upon general observation and experience and knowledge of the property and its intrinsic merits." Ward v. Reynolds, 32 Ala. 384; State v. Finch, 70 Iowa, 316, 30 N.W. 578, 59 Am. Rep. 443; Western Ry. Co. v. Price, 192 Ala. 430, 68 So. 278. Our statute, section 7656, is but declaratory of the common-law rule on the subject.

We hold, therefore, that the court committed no error in its rulings permitting plaintiff to prove, by the several witnesses, the value of the property.

It appears from the evidence that the plaintiff just prior to the first fire had a bale of cotton at, or near, the residence that was burned. The defendant sought to inquire of the witness Parker Welch, when this bale of cotton was moved and propounded this question to the witness, "When was it moved?" The plaintiff objected to the question. The plaintiff was charged with the burning of the insured property, and the removal of other property by plaintiff in dangerous proximity to the house in case of its burning, was a circumstance that the defendant had the right to show, if he could. This question, as for any grounds of objection assigned thereto, called for legal, material, and relevant...