Brownhill v. Kivlin

• Decision Date: 25 October 1944
• Citation: 317 Mass. 168,57 N.E.2d 539
• Parties: BROWNHILL v. KIVLIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

317 Mass. 168

57 N.E.2d 539

BROWNHILL

v.KIVLIN.

Supreme Judicial Court of Massachusetts, Hampden.

Oct. 25, 1944.

Exceptions from Superior Court, Hampden County; Leary, Judge.

Action by Jeannie Brownhill against Maude Kivlin, administratrix, for negligent burning of plaintiff's garage. To review a verdict for defendant entered by court under leave reserved, after jury returned a verdict for plaintiff, plaintiff brings exceptions.

Exceptions overruled.

Before FIELD, C. J., and QUA, DOLAN, WILKINS, and SPALDING, JJ.

R. P. Walsh, of Springfield, for plaintiff.

P. G. Gearan, of Fitchburg, and W. A. McBride, of Springfield, for defendant.

WILKINS, Justice.

This is an action of tort for negligently burning the plaintiff's garage. The jury returned a verdict for the plaintiff, and the judge under leave reserved entered a verdict for the defendant. The plaintiff excepted.

The evidence was all by witnesses for the plaintiff. The plaintiff's son testified that about 1 A.M. August 15, 1940, he arrived at his house, 33 Pasadena Street, Springfield. Immediately adjacent was a two car garage, one side of which was rented by Ralph T. Holden, the defendant's intestate. The witness observed that the doors of that side of the garage were open, and that the defendant's intestate was seated in the rear seat of his automobile with the dome light on, the engine not running, the automobile doors open, and the radio on. The witness, aided by the dome light, also observed a ‘haze,’ which he described as ‘cigarette smoke.’ He next saw the garage, which contained no electric wiring, about 3 A.M. when it was enveloped in flames. The district fire chief testified that he arrived at the scene about 3 A.M., at which time the garage was a mass of flames; that thereafter the burning automobile of the defendant's intestate was removed from the garage; that the latter's badly burned body was in the rear seat; and that the damage to the automobile was largely confined to the rear interior portion and to the rear seat. It was agreed that the medical certificate gave the cause of death as ‘suffocation and partial cremaltion.’ The district fire chief, of unquestioned expert qualifications, was asked on direct examination if he had an opinion as to the cause of the fire. Answering in the affirmative he was asked what was that opinion, to which he answered without objection, ‘Careless smoking.’ On cross-examination he testified: ‘Q. There was nothing in this particular garage or that you found in the examination of this car to indicate that cigarettes started the fire? A. No; you couldn't prove that * * * the interior of the car was so badly damaged you couldn't prove anything. You couldn't prove what started the fire. Q. In other words you cannot state definitely what started that particular fire? A. No; you could not, no.’ On redirect examination he testified: ‘Q. Did you form any opinion as to whether or not the fire started in the rear of the car? A. Oh, we were positive the fire started in the car, in the rear of the car, yes.’

The entry of the verdict for the defendant was right. The so called opinion of the district fire chief that careless smoking was the cause of the fire is revealed by the cross-examination to have been no real opinion at all, and so to be unlike the testimony of the fire chief in Gechijian v. Richmond Ins. Co., 305 Mass. 132, 142, 25 N.E.2d 191. Being merely a guess or speculation as to a fact later testified by him to be incapable of proof, this expression of conjecture must be put out of the case. See Ruschetti's Case, 299 Mass. 426, 431, 13 N.E.2d 34;Callaghan v. R. H. White Co., 303 Mass. 413, 416, 22 N.E.2d 10. Without it there is no evidence that any act, negligent or otherwise, of the deceased caused the fire. The presence of the deceased, even though he was smoking and alone, at 1 A.M. in the back of the automobile, where the fire started, is not enough from which to infer that he had acted negligently. Little v. Lynn & Marblehead Real Estate Co., 301 Mass. 156, 159, 16 N.E.2d 688, and cases cited. In short, the evidence does not show that the fire resulted from negligence for which the deceased was responsible rather than from a...