Connecticut Fire Ins. Co. v. Chester, P. & Ste. G. R. Co.

• Decision Date: 04 February 1913
• Citation: 153 S.W. 544
• Court: Missouri Court of Appeals
• Parties: CONNECTICUT FIRE INS. CO. v. CHESTER, P. & STE. G. R. CO.

153 S.W. 544

CONNECTICUT FIRE INS. CO. v. CHESTER, P. & STE. G. R. CO.

St. Louis Court of Appeals. Missouri.

February 4, 1913.

Rehearing Denied February 15, 1913.

1. RAILROADS (§ 482) — FIRES — EVIDENCE.

In an action for damages for a fire alleged to have been set by defendant's engine, evidence held to warrant a finding that the fire was started by a spark from defendant's engine.

2. EVIDENCE (§ 539½) — COMPETENCY OF EXPERT — FIRES — SPARKS.

A witness, who had much experience with firing threshing engines, and had observed the operation of locomotives with respect to throwing off sparks when fired with wood, as compared with threshing engines, and how far such sparks carried, and thought the engines were similar when burning wood, was competent to testify as to how far sparks from a locomotive burning wood could be carried.

3. WITNESSES (§ 56) — COMPETENCY OF WIFE — "AGENT."

In an action by a husband against a railroad for damages from a fire alleged to have been set by defendant's engine, the wife, who had been left in charge of the premises at the time the fire started, could not testify as an "agent," within Rev. St. 1909, § 6359, providing that the wife could testify "in all matters of business transactions where the transaction was had and conducted by such married woman as the agent of the husband."

4. WITNESSES (§ 52) — COMPETENCY OF WIFE.

Unless a wife is an agent of her husband, within Rev. St. 1909, § 6359, providing that a wife could testify in an action in the name of or against her husband, where she had acted as her husband's agent in a business transaction, she is not competent to testify in a civil action in which her husband is pecuniarily interested, whether he is a party or not; our statute not having abolished the common-law disqualification of the wife, save as to the exceptions therein.

5. APPEAL AND ERROR (§ 1048) — HARMLESS ERROR — EVIDENCE — GROUNDS FOR ADMISSION.

Where a wife was permitted to testify as the agent of her husband, when she was not such agent, but it appeared that the husband had assigned his cause of action and was not pecuniarily interested, there was no reversible error.

6. WITNESSES (§ 56) — COMPETENCY OF WIFE — PROOF OF AGENCY.

A husband or wife is a competent witness to prove the agency of the other.

7. EVIDENCE (§ 471) — OPINION — EVIDENCE — FACTS.

In an action for damages by a fire alleged to have been caused by sparks from defendant's engine, testimony by a witness whether fire could be started on the roof of the house by sparks from a fire which was in the yard was not opinion evidence, but was testimony of a fact.

8. INSURANCE (§ 607) — INSURANCE — ASSIGNMENTS OF CAUSE OF ACTION — MEASURE OF DAMAGES.

Where an insurance company paid insurance on a house burned through the negligence of a railroad, and the insured assigned his cause of action to it, the measure of recovery, in an action by the insurer, is the full amount of the damage sustained, regardless of what might have been recovered under the policy.

9. TRIAL (§ 129) — REMARKS OF COUNSEL — REPLY TO OPPOSING COUNSEL.

Where an attorney for defendant argued that the plaintiff, an insurance company, should not recover more than it had paid the insured on account of defendant's negligence, he cannot complain of a statement by plaintiff's attorney that, though plaintiff had only paid a certain amount, it had to come into court and suffer delay and expense, given in answer thereto, especially where the damages allowed were not excessive.

Appeal from Circuit Court, Ste. Genevieve County; Peter H. Huck, Judge.

Action by the Connecticut Fire Insurance Company against the Chester, Perryville & Ste. Genevieve Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Davis & Hardesty and Giboney Houck, all of Cape Girardeau, for appellant. John V. Noell, of Perryville, for respondent.

REYNOLDS, P. J.

This is an action for damages alleged to have been sustained by one George Maddock, in consequence of the destruction by fire of a dwelling and outbuilding owned by Maddock, the fire, it is alleged, having been communicated to the buildings from sparks thrown out by an engine of the defendant. Maddock, the owner, carried insurance on the property. After the fire he was paid $558.85 by the insurance company on the loss. Whereupon he assigned his claim for damages against the railroad company for the loss to the insurance company, plaintiff below, respondent here. It is by virtue of this assignment that plaintiff instituted this action, in which it was awarded a verdict in the sum of $636.85. Judgment following, defendant, filing a motion for new trial and saving exception to that being overruled, has duly perfected appeal to this court.

Here counsel for appellant assign four grounds on which reversal is asked.

The first error assigned is to the refusal of the court to sustain the demurrers interposed by defendant to the testimony in the case. In support of this assignment it is claimed that defendant having introduced evidence tending to show the true source of the fire to have been other than the sparks from the engine, it devolved upon plaintiff to produce circumstantial evidence of the strongest character; it had failed in this and from the circumstantial evidence produced in the case, no rational inference could be drawn that the fire had been caused by sparks from the engine, the remoteness of time when an engine passed the premises being alone sufficient to preclude recovery. We dispose of this assignment by saying that the evidence connected with the fire, the movements of the engine, the escape of sparks, in short, all matters connected with the origin of the fire were fully gone into and there was substantial evidence to warrant the jury in arriving at its verdict, so far as relates to the origin of the fire; that is, that it originated from sparks from a passing engine, operated by the defendant's employés. While there was no direct testimony as to this, the circumstantial evidence was sufficient to warrant the jury in arriving at the conclusion which it did as to the origin of the fire.

The second error assigned is to the admission of evidence and refusal...