Brownhill v. Kivlin
| Decision Date | 25 October 1944 |
| Citation | 317 Mass. 168,57 N.E.2d 539 |
| Parties | JEANNIE BROWNHILL v. MAUDE KIVLIN, administratrix. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
September 21, 1944.
Present: FIELD, C.
J., QUA, DOLAN WILKINS, & SPALDING, JJ.
Fire. Negligence Fire.
Proximate Cause. Evidence, Opinion: expert; Matter of conjecture; Relevancy and materiality.
Opinion testimony by an expert in direct examination that the cause of a fire in a garage was "careless smoking," followed by his testimony in cross-examination that "there was nothing . . found . . . to indicate that cigarettes started the fire," that "you couldn't prove anything," and that "you couldn't prove what started the fire," amounted only to a conjecture and had no probative effect. Evidence merely that an occupant of a garage, two hours before it was discovered to be on fire in the night, had been observed seated in the back of an automobile therein, and that a "haze," described as
"cigarette smoke," had also been seen, did not warrant a finding that the fire was caused by negligence of the occupant. After a witness had testified that, two hours before a fire in a garage in
August was discovered, he had observed a tenant of the garage seated in the back seat of an automobile therein and had also seen a "haze," which he described as "cigarette smoke," further evidence on the issue of the cause of that fire, that on an occasion in the previous May the tenant had caused a fire in his automobile by dropping cigarettes, and on two other occasions in the previous October had so caused fires in other places, properly was excluded.
TORT. Writ in the Superior Court dated March 26, 1941. The case was tried before Leary, J.
In this court the case was submitted on briefs. R. P. Walsh, for the plaintiff.
P. G. Gearan & W.
A. McBride, for the defendant.
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 cremation." 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. 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. 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. Se...
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