Conrad v. Gerber

• Decision Date: 14 October 1929
• Docket Number: No. 13.,13.
• Citation: 147 A. 476
• Parties: CONRAD et al. v. GERBER et al.
• Court: New Jersey Supreme Court

147 A. 476

CONRAD et al.

v. GERBER et al.

No. 13.

Court of Errors and Appeals of New Jersey.

Oct. 14, 1929.

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by David G. Conrad and others against Abram R. Gerber and others. From an adverse judgment, plaintiffs appeal. Affirmed.

See, also, 4 N. J. Misc. R. 404, 133 A. 920.

James Mercer Davis, of Camden, for appellants.

Palmer & Powell, of Mt. Holly, for respondents.

CAMPBELL, J. This is an appeal from a judgment in favor of respondents, defendants below, in a suit to recover damages resulting from alleged negligence in setting and controlling a fire. The defendants, on June 27, 1923, set fire to brush that had accumulated from the clearing of a cranberry bog. It is claimed that the fire escaped and set fire to a pine wood adjacent to the bog creating a general forest fire which extended over a distance of two miles into the property of the plaintiffs, where it burned the timber from two cedar swamps, a sawmill and all the machinery and equipment in the mill, a quantity of cedar logs cut and piled ready for sawing, and a quantity of sawed lumber.

There are 30 grounds of appeal, 20 of which are argued, under 12 separate heads or points:

1 (Ground 1). Error in refusing the offer of appellants to read, as an admission against interest, the testimony of the defendant, Abram R. Gerber, given at a former trial of the cause. The difficulty is that it does not appear by the record before us exactly what portions of this testimony were offered, and we are unable, therefore, to say whether or not that which was offered amounted to a declaration or admission against interest. It is, however, of no moment because if the ruling of the trial court in excluding the offer was error, it was not harmful because, subsequently, upon cross-examination of this party who had been called and had testified in his own behalf, he was confronted with his testimony in the former trial, question and answer, and his answers being that he did not remember, such questions and answers were offered and received in evidence. The previous ruling complained of, if erroneous, was therefore neither harmful nor prejudicial to the cause of the appellants.

2 (Ground 10). It is insisted here that it was error to refuse to strike the answer to the following question directed to William Cranmer, fire warden, and also foreman of the defendants: "Q. Then what were the conditions after that on the next day? A. Well on Monday I thought it was most too wet in the swamp to do any burning. I was thinking of burning it on Monday."

The complaint against this ruling is that the witness had not been qualified as an expert and the answer was an expression of opinion. We think the point is not well taken, because the witness, we conclude, had been qualified but had he not been the question and answer were not directed toward a subject requiring any special expertness, and was not in any wise harmful or prejudicial to appellants. 3 (Ground 13). This is directed at the exclusion of an answer, on cross-examination of the witness William Cranmer (fire warden and foreman of defendants) to this question: "Did you issue a permit to yourself at that time?" This related to the burning of the easterly half of the bog which took place some days before the burning of the westerly half, which latter burning was the basis of the action in question. This inquiry was neither relevant nor pertinent to the issue and was not proper cross-examination, and the insistence that it would show inconsistent conduct bearing upon the credibility of the witness we think is unsound.

4 (Ground 14). This is directed at rulings excluding answers to the following questions on cross-examination of the same witness:

Q. "Why did you issue the permit to yourself?"

Q. "With regard to this fire on the 27th?"

What we have said under the last preceding ground of appeal applies here, and such ruling was not error.

5 (Ground 15). Exclusion of the answer to the following question upon cross-examination of the same witness: Q. "Well, didn't that enter into your determination as to whether it was a fit time to burn or not?" It is contended that the witness as a fire warden was required, under the statute, to take into consideration, when issuing a permit to burn, the time when the burning was to take place. Assuming, but not conceding, this to be so, the question was not directed at a proper subject of cross-examination, and therefore the exclusion of the answer was not error.

6 (Grounds 16, 17, and 18). These grounds are directed at the exclusion of answers to the following questions upon cross-examination of the same witness:

Q. "Now when you saw him on Friday, in which he made application for this permit, when did he tell you to burn?"

Q. "Did he tell you when to burn?"

Q. "Did you get at any time any instructions before this fire as to when to start the fire?"

What we said under the last point disposes of these grounds.

7 (Ground 19). Error in excluding an answer to the following question upon cross-examination to the same witness: "Did you show it to anybody before you delivered it?" This related to the permit for the fire in question, which permit was not produced at the trial.

It is said that this, with other exhibits, was turned over to counsel who conducted the cause of plaintiffs at the previous trial and not turned over by him to present counsel for plaintiffs; this was admitted, and therefore there was no harmful error in the ruling complained of.

8 (Ground 20). This is directed at an alleged error in permitting to be read to the jury the stenographic notes of a conference of counsel and trial judge in chambers respecting counsel for defendant presenting himself as a witness in behalf of his clients. It appears that the result of such conference was that while the trial judge recognized the professional impropriety of such action, he did not feel warranted in sustaining an objection thereto, and it further appears from a statement by the trial judge that counsel for defendants at such conference had stated that if such notes were read he would not offer himself as a witness.

The side bar conference as read by the stenographer was:

"The Court: I asked Mr. Palmer if he expected to offer himself and Mr. Powell as witnesses for the defense in this case. His reply is that it is his present feeling. Why do you feel that it is necessary, Mr. Palmer, to tes-tify? I am not asking you to give the scope of your testimony but an opinion from you as to why you feel that it is necessary to depart from the rule or the general practice?

"Mr. Palmer: As to the testimony, of course, what I may say is known, because it is a matter of record in the former trial so that there can be nothing different that I would say from what I have already said with which the court and counsel are familiar. As to the necessity for it, it is simply this: that it hinges on the point in the woods where the fire apparently started. At to that I have only the testimony of the defendant Gerber himself, Abram Gerber. And having seen the place within a comparatively short time after the fire I feel that the matter is of sufficient importance to warrant my disregarding the proprieties of the...