Cook v. Johnston

• Decision Date: 11 November 1885
• Citation: 58 Mich. 437,25 N.W. 388
• Court: Michigan Supreme Court
• Parties: COOK v. JOHNSTON.

25 N.W. 388

58 Mich. 437

COOK v. JOHNSTON.

Supreme Court of Michigan

November 11, 1885

Error to Wayne.

Sylvester Larned, for plaintiff.

E.T. Wood and W.G. Clarke, for defendant and appellant.

CAMPBELL, J.

Plaintiff recovered damages in the sum of $3,000 for personal injuries claimed to have been caused by defendant's negligence whereby it is alleged a fire was set in a shed occupied by plaintiff. The facts as relied upon were that plaintiff's husband was a tenant of defendant, occupying a wing of her house, at the corner of Sixteenth and Canfield streets, in Detroit. Behind the house was a low shed, divided into three parts by internal partitions from five to six feet high, of which defendant occupied the middle one, and plaintiff's husband the adjoining one at the north end. In the middle partition was a water-closet used by defendant and her tenants jointly. In this middle part, on the side furthest from Mr. Cook's, was an ash-barrel, which Mr. Cook described as a stout, iron-bound cask, such as is used for liquids. Plaintiff claims that the fire was caused by ashes in this barrel. She and her husband, as they testify, were awakened by the light of the fire burning through the top of this middle part, and as soon as they could they went into their own part, and she undertook to get out their horse that was lying down so that she could not easily loose the halter. While trying to do this the fire swept over the partition and burned her very severely, so as to nearly or quite disable her from doing her accustomed work.

Several questions arose on the trial, on which rulings were made which were complained of. We shall only notice those which seem to be of most importance. Among other witnesses sworn was Mr. Baxter, the city fire marshal, who was allowed to testify not only to what he saw on the ground the next day, but also what opinion he had of the origin of the fire, and what he heard from various persons who were there. This was improperly allowed. That officer's duties are important, and he may properly enough make such inquiries as he deems necessary to aid his own judgment. But when the rights and liabilities of private persons are in question, he cannot affect them by his opinions or conclusions, however sagacious he may be. When he testifies, he is governed by the same rules as other witnesses, and cannot give either hearsay or opinions. What is said or done after a fire cannot be regarded as part of the res gestae at the fire, and the sayings and doings of third parties could not usually be receivable. And as for the origin and cause of a fire, it cannot, in such a case as this, be any more difficult for the jury than for a witness to make deductions from the facts shown. There is no room for expert testimony, and his opinions were not receivable. This testimony was referred to in the charge of the judge, and is quite likely to have had much weight. There were several facts shown which were fairly claimed to have indicated the possibility, if not probability, of a different cause, and the jury should have been left to form their own conclusions unaffected by any one's opinion. A similar question was decided by this court in Fowler v. Gilbert, 38 Mich....