F.W. Bromberg & Co. v. Norton

• Decision Date: 08 June 1922
• Docket Number: 6 Div. 461
• Parties: F. W. BROMBERG & CO. v. NORTON.
• Court: Alabama Supreme Court

93 So. 837

208 Ala. 117

F. W. BROMBERG & CO. v. NORTON.

6 Div. 461

Supreme Court of Alabama

June 8, 1922

Rehearing Denied June 30, 1922.

Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.

Action by Fannie Mae Norton against F. W. Bromberg & Company for damages for failure to return a diamond ring. From a judgment for plaintiff, defendant appeals. Reversed and remanded conditionally.

Lange &amp Simpson, of Birmingham, for appellant.

Hugo L Black, of Birmingham, for appellee.

THOMAS J.

The evidence is without conflict that the loss of the ring was due to larceny by a porter in the employ of defendant, who as bailee, was liable for negligence. During the trial defendant's counsel stated to the court that he did not care to "avail himself of any defense regarding liability." The court instructed the jury that-

"Relying on the statement of counsel, *** the only question left for your consideration *** is *** the amount of damages which the plaintiff is entitled to recover. ***"

Thereafter defendant requested in writing affirmative charges 1 and 2, which were refused.

The assignments of error are predicated on failure to grant defendant's motion for a new trial, grounds of which were the refusal of aforesaid charges. Having induced the court to charge the jury that the only question of fact for ascertainment was the amount of damages which plaintiff was entitled to recover, no error can be predicated on refusal of the contrary instructions contained in said charges. Talley v. Whitlock, 199 Ala. 28, 73 So. 976; B. R. L. & P. Co. v. Hunt, 200 Ala. 560, 76 So. 918; Hooper v. Birchfield, 115 Ala. 226, 233, 22 So. 68.

The defendant's witness Rubenstein, a jeweler, without objection testified that old mine cut diamonds had been offered him for sale "recently in Philadelphia"-in August, 1920; that Birmingham people buy most of their diamonds in New York, Philadelphia, and Chicago, and that the Birmingham market is based on the market on said places; that old mine cut diamonds are scarce and their value in Birmingham is the same as in other markets, where the reasonable market value of such stones, size from a quarter to a half carat, is from $100 to $125 per carat wholesale price; at retail from $150 to $175 per carat; that of stones half a carat size smaller would be of less value. The witness further testified that the value of two stones weighing a quarter of a carat each and one weighing about 55/100 of a carat, "old mine cut, silver cape, commercial white, without flaws on the Birmingham market, would be about $125 a carat"; if of about two carats would be worth about $200. This testimony was admitted after the introduction of evidence tending to indicate the kind, size, quality, and color of the diamonds in question. Thereafter, in her rebuttal, plaintiff was asked: "Is it true that Tiffany in New York offered to duplicate that ring with a 75/100 and two 65/100 carat stones, like you had in the other one for $1,375?" to which defendant's objection was sustained. Whereupon plaintiff's attorney stated that he offered this evidence on the theory that defendant had proved by Mr. Rubenstein that he "got an offer on some rings in Philadelphia." The foregoing evidence indicates that there was no error in refusing to permit the question to be answered. It is urged by appellee that such evidence was competent, under decisions to the effect that where one party had introduced hearsay evidence, the trial court may permit the other party to introduce evidence of a like nature and to a contrary import. Gibson v. Gaines, 198 Ala. 583, 73 So. 929; Ala. Fuel & Iron Co. v. Bush, 204 Ala. 658, 86 So. 541. See analogy in Bank of Ph nix City v. Taylor, 196 Ala. 665, 72 So. 264. The testimony of Mr. Rubenstein was not such as to warrant the question and answer sought, it being by no means certain that such offer, if made by Tiffany, was of like kind, condition, and quality as the diamonds set in the lost ring, or were the same on which Rubenstein had a price named to him in Philadelphia, about August, 1920, or that such was the price of the plaintiff's diamonds when the ring was stolen.

The plaintiff, called as a witness in her own behalf, was asked by her counsel: "What in your judgment was the value of the three diamonds and the ring in June, 1919?" and defendant objected. During the discussion that ensued the court inquired: "You mean the reasonable market value?" and the attorney replied: "No, sir, I don't, [I] mean the value to her." The objection being sustained, attorney for plaintiff offered "to show the fact that this ring is an heirloom and handed down from three generations to this lady and cherished as an heirloom. We offer to show that as to the separate facts." Objection being sustained plaintiff's attorney urged the matter by saying: "We except. We offer to show by the lady that the peculiar value of the ring to her, it being by reason of the sentiment attached to it, being an heirloom." Objection being sustained to this course of examination of the witness or attempt to do so to the end stated, and exception reserved, the witness was asked: "What in your judgment was the reasonable market value of the ring in Birmingham in June, 1919?" and answered: "The market value the best of my knowledge, of the ring, would be between $1,500 and $2,000."

Without objection the witness was permitted to testify that while working in a jewelry store she had "seen diamonds weighed," had "seen rings priced in the windows in Birmingham," had "looked at rings and noted prices" thereof; was around jewelry windows and noted every jewelry store she passed to get new ideas from such windows; knew of people buying rings in Birmingham and the prices paid and the generally reported price of diamonds in that market. Cross-examined, she said that the longest she had worked "in a jewelry store was a little over a month," and had worked in such a store "off and on from middle of December until June, and a month last summer during part of July and August"; had seen "old mine cut stones"; knew "practically what one is"; could not tell "by looking at any stone what cut it was."

The witness H. Y. Webb, called as an expert, testified that he was engaged "in the wholesale diamond business in Birmingham" at the time of the loss of plaintiff's ring, and was acquainted with the price of diamonds in that market; that he knew the different styles and cuts of such stones, and gave as his opinion that "old mine cuts" lack "in brilliancy compared to the modern cutting." Concluding his examination the witness said: "The only way *** [an] old mine cut stone is merchantable is to recut it and in recutting you lose an average of about 40 per cent.-25 per cent. to 50 per cent. in weight." On his cross-examination he stated: "I cannot state that an old mine cut stone has no value. *** In reality it has no market value. It is worth what you can get for it." Being re-examined he declared that a perfect silver cape could be bought at $375 to $475 per carat in the best cutting; but that in old mine cuttings it is hard to figure; that after paying the cost of recutting and reducing, which is $35 to $50 per carat on the weight before it goes into the cutting, what is left would be the fair market value. He concluded the matter with the statement: "There is no rule by which you can figure the depreciation in cutting down an old mine cut stone, but experience shows the general result to be a depreciation of 25 to 50 per cent."

The foregoing was the basis for a reasonable inference by the jury, though finding that this article of wearing apparel may be considered as having no market value in the general acceptation of such term; yet it had a value to its owner, aside from its fanciful or sentimental value as an heirloom or keepsake, of which she and other witnesses, knowing the fact, could testify. The doctrine that the owner of such a chattel is qualified, by reason of that knowledge and relationship, to give an estimate of its value has been frequently discussed. It is the better opinion of the courts that the owner of certain chattels has a "general, though not expert, knowledge of the value" which, for the purpose of estimating damages, may be considered as having no market value, and that, having such general knowledge of the value of the article, he "may testify as to his opinion of such value" to its owner. L. R. A. 1917D, 495, 507, note. The cases in which the rule has been applied are generally such as involved the value of wearing apparel, household goods, or furniture; and the effect of our decisions is "that the fanciful or sentimental value must not be considered." B. R. L. & P. Co. v. Hinton, 157 Ala. 630, 47 So. 576 (household goods); Cooney v. Pullman Co., 121 Ala. 368, 25 So. 712, 53 L. R. A. 690 (satchel); Sou. Exp. Co. v. Owens, 146 Ala. 412, 41 So. 752, 8 L. R. A. (N. S.) 369, 119 Am. St. Rep. 41, 9 Ann. Cas. 1143 (manuscript); Kates Trans. Co. v. Klassen, 6 Ala. App. 301, 59 So. 355 (watch and trunk); Buerger v. Mabry, 15 Ala. App. 241, 73 So. 135 (household goods and furniture); Whitehead v. State, 16 Ala. App. 427, 78 So. 467 (automobile); L. R. A. 1917D, 507; Southern Express Co. v. Owens, 146 Ala. 412, 41 So. 752, 8 L. R. A. (N. S.) 369, 119 Am. St. Rep. 41, 9 Ann. Cas. 1143; 17 Cyc. 113, 114. This is the logical result of the statutory provision that-

"Direct testimony as to market value is in the nature of opinion evidence. One need not be an expert or dealer in the article, but may testify as to value, if he has had an opportunity for forming a correct opinion." Code 1907, § 3960; Ala. Power Co. v. Keyston Lime Co., 191 Ala. 58, 72, 67 So. 833, Ann. Cas. 1917C, 878; Jackson v. State, 17 Ala. App. 197, 84 So. 394.

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