Fireman's Ins. Co. of Baltimore v. J.H. Mohlman Co.

• Decision Date: 07 December 1898
• Docket Number: 84.
• Citation: 91 F. 85
• Parties: FIREMAN'S INS. CO. OF BALTIMORE v. J. H. MOHLMAN CO.
• Court: U.S. Court of Appeals — Second Circuit

91 F. 85

FIREMAN'S INS. CO. OF BALTIMORE v. J. H. MOHLMAN CO.

No. 84.

United States Court of Appeals, Second Circuit.

December 7, 1898

Michael H. Cardozo, for plaintiff in error.

Treadwell Cleveland, for defendant in error.

Before WALLACE and SHIPMAN, Circuit Judges.

WALLACE Circuit Judge.

Upon the trial of this action there was a verdict for the plaintiff, and the defendant has brought this writ of error from the judgment entered upon the verdict to review rulings on the trial of which error is assigned. The action was on a policy of insurance, and was brought to recover a loss to the plaintiff's stock of merchandise contained in the brick building situate at 38 and 40 North Moore street, New York City. The defense was based upon the following clause in the policy: 'If a building, or any part thereof, fall, except as the result of fire, all insurance by this policy on such building or its contents shall immediately cease.'

The assignments of error which present the most important question are those which impugn the rulings of the trial judge in excluding opinions of witnesses offered by the defendant.

The principal issue contested on the trial was whether the fall of the building preceded the fire, or the fire preceded the fall. The building was of five stories, 50 feet in width, and 20 feet deep. The fire took place April 30, 1895. The defendant introduced evidence tending to show that the building fell at 1 o'clock a.m.; that the building was loaded with contents beyond its carrying capacity; that the gas was burning on the lower floor shortly before it fell that various persons were near it shortly before it fell observed it, and saw no indications of fire; and that other persons, who reached the place just after the fall, did not discover any flame, but saw them break out subsequently.

The defendant produced as a witness one Freel, who was a captain in the fire department of the city of New York, and who for the past three years had been detailed as an expert examiner in the office of the fire marshall for the purpose of ascertaining the origin of fires, and during that time had examined into the cause of about 3,500 fires. The witness testified that upon his arrival at the fire he made an examination as to the origin thereof, and continued such examination during the time he was there for the purpose of ascertaining the cause, and that he formed an opinion as to the origin of the fire, and whether the fall of the building preceded the fire. He was then asked, 'What conclusion did you form?' The evidence was excluded, and the defendant excepted.

The defendant also produced as a witness one Cashman, chief of a battalion of the fire department, a fireman of 31 years' experience. He testified that he attended this fire, having arrived there about 10 minutes after 1 o'clock, and remained 5 or 6 hours; that afterwards, from time to time for 10 or 12 days, he went there, and examined the ruins that he did this in order to satisfy himself whether the building came down by fire or collapse, and that he did satisfy himself. The witness was thereupon asked: 'Did you come to a conclusion, from the examination you made during the six or seven hours the fire was burning, and for ten or twelve days thereafter? ' The evidence was excluded, and the defendant excepted.

The defendant also produced as a witness one Purdy, a civil engineer, who testified that he had made a special study of the strength of materials, and had been connected with the erection of a great many large buildings in the city of New York; that in 1895 he was employed by the insurance companies to examine the ruins of the building in question; and that he made a number of visits to the building, beginning on May 24 1895. The witness then described the character of the ruins, and his examination thereof during several visits, and he also testified as to the dead load which each post bore, and the live load thereon, using for that purpose the testimony of witnesses who had given the contents of the building; and he also testified as to what was a safe or proper load to be carried by such posts as were in the building. He was then asked the following question: 'From your examination of the...