Bresnan v. Weaver

• Decision Date: 10 November 1926
• Docket Number: 8.
• Citation: 135 A. 584,151 Md. 375
• Parties: BRESNAN ET AL. v. WEAVER ET UX.
• Court: Maryland Court of Appeals

135 A. 584

151 Md. 375

BRESNAN ET AL. v. WEAVER ET UX.

No. 8.

Court of Appeals of Maryland

November 10, 1926

Motion for Reargument Overruled Jan. 18, 1927.

Appeal from Superior Court of Baltimore City; Joseph N. Ulman Judge.

"To be officially reported."

Action by James R. Weaver and wife, in their own right, and for the use of the Central Fire Insurance Company of Baltimore against Timothy Bresnan and others, copartners trading as Timothy Bresnan & Sons. Judgment for plaintiffs, and defendants appeal. Affirmed.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, PARKE, and WALSH, JJ.

W. M. Kalling and William G. Towers, both of Baltimore, for appellants.

Joseph France, of Baltimore (Robert F. Leach, Jr., and Venable, Baetjer & Howard, all of Baltimore, on the brief), for appellees.

ADKINS J.

This suit was brought by appellees James R. Weaver and Regina L. Weaver, his wife, owners of a cottage No. 3725, Morely street, Baltimore, in their own right and for the use of the Central Fire Insurance Company of Baltimore City against appellants Timothy Bresnan, Daniel Bresnan, and Timothy Bresnan, Jr., copartners trading as Timothy Bresnan & Sons, owners of a steam shovel, to recover for the destruction by fire of said cottage and the furniture therein on February 27, 1924. The case was tried by the court without a jury, and resulted in a verdict for the plaintiffs. From the judgment on the verdict, this appeal was taken.

Eleven exceptions were reserved, ten to rulings on evidence and one to the ruling on the prayers. The first four exceptions relate to the testimony of Mrs. Weaver, one of the plaintiffs, as to the value of articles of personal property destroyed by the fire. It appears that immediately after the fire the witness made an inventory for the insurance company, and she testified that at the time it was made she was familiar with the values of these articles because she had experience in buying and as a housewife knew their value. She was asked the total value of the things destroyed, and the memorandum in her own handwriting and containing an itemized statement was offered in evidence. The court held that the memorandum was not evidence, but could be used by the witness to refresh her recollection. She was about to give the value of each item when the court suggested that would take a lot of time, and proposed a stipulation by counsel that the written memorandum should be introduced in evidence "with the same legal effect, and no more, than if the witness using the memorandum to refresh her recollection, testifying in chief with respect to the items contained in the memorandum and the valuation placed by her therein; and the defendants' counsel by permitting the introduction of the memorandum and by cross-examining the witness thereupon does not concede the legal sufficiency of the proof of any item of the memorandum nor of all the items thereof, and especially reserves the right at the conclusion of his testimony to move the court to strike from the record any or all of the items of the memorandum as to which it may appear that the witness was not qualified to testify." This proposition was accepted.

The first exception was to admitting the question: "What is the total valuation of all the articles?" To which the witness answered: "I value it--the amount that we lost during the fire--at $2,500." This we understand was the valuation as shown by the memorandum.

Defendants' attorney, in accordance with the stipulation, then cross-examined the witness as to the items.

In view of the stipulation we find no error in this ruling. The contention of appellants is that witness was not an expert and was not shown to be competent. It is not required that the owner of articles of personal property in common use should be an expert. In such cases it is a question of the weight of the testimony. 1 Wigmore, § 716, and cases cited in note; Chamberlayne on Evidence, vol. 3, § 2143; Shea v. Hudson, 165 Mass. 43, 42 N.E. 114; Rademacher v. Greenwich Ins. Co., 75 Hun, 83, 27 N.Y.S. 155.

The second and third exceptions were to the refusal of the court to strike out after cross-examination testimony of the witness as to two items of curtains and medicine of $2 and $13.75 respectively on the ground that the method of arriving at values was improper. The court thought it was a question of weight, and we are inclined to agree with this view. In any event the items are too small to justify a reversal.

At the conclusion of the cross-examination defendants' attorney moved to strike out all the testimony of the witness as to the items of loss and their value. The refusal to grant this motion constituted the fourth exception. We find no error in this ruling.

The fifth exception was to a question asked the witness Harry M. Beck, an insurance adjuster, as to advice given by him to Mrs. Weaver in connection with making for him a list of the articles she had lost; and the sixth exception was to the refusal of the court to strike out his answer to that question. As there was nothing in the answer which could possibly have injured defendants, there was no prejudicial error in these rulings. The seventh exception was to overruling of an objection to the following question propounded to Beck, the insurance adjuster:

"You have said that you heard Mrs. Weaver testifying yesterday in regard to the cost of the articles she had listed, and the character of each of the articles, and also as to the amount that she put down on the list she furnished you. In your opinion as an adjuster, will you tell us whether or not you think the value placed by Mrs. Weaver on--as she testified yesterday--are fair values of such property?"

And the eighth exception was to the refusal of the court to strike out the answer to that question. The answer was:

"I wish to state to the court that I am--to the best of my ability her value on the out of sight articles were fair and reasonable, but I never saw the articles, and I couldn't absolutely say whether she even had them, except I took her word for the fact that everything on the second floor was destroyed, but on the articles on the first

...