First Nat. Bank of Portland v. Fire Ass'n

• Decision Date: 30 April 1898
• Parties: FIRST NAT. BANK OF PORTLAND v. FIRE ASS'N OF PHILADELPHIA. SAME v. AACHEN & M. FIRE INS. CO.
• Court: Oregon Supreme Court

53 P. 8

33 Or. 172

FIRST NAT. BANK OF PORTLAND v. FIRE ASS'N OF PHILADELPHIA. SAME v. AACHEN & M. FIRE INS. CO.

Supreme Court of Oregon

April 30, 1898

Appeal from circuit court, Multnomah county; E.D. Shattuck, Judge.

Separate actions by the First National Bank of Portland against the Fire Association of Philadelphia and the Aachen & Munich Fire Insurance Company. Defendants had judgment in each action which were tried together, and plaintiff appeals. Affirmed.

H.E. McGinn, for appellant.

W.W Cotton, for respondents.

WOLVERTON J.

These actions are based upon certain policies of insurance against loss and damage by fire, and were tried together. The defense is single, and is, in effect, that the policy holders set or caused fire to be set to the property covered by the policies. The verdict and judgment were for the defendants and plaintiff appeals.

The questions most difficult of solution arose from the examination of the witnesses David Campbell, M. Laudenklos, A.E. Austin, and George H. Wemple. Campbell testified, among other things, as follows: "I was in front of the building. Should judge the flames coming out of each of the two stories were five or six feet, covering the whole space, upstairs and downstairs. I could not say whether the glass from the windows and doors upstairs and downstairs was all gone out or not. I would judge it was, because of the character of the smoke and flames across the street. *** The fire seemed to be burning very rapidly. I should judge that it originated in the southeast corner of the store. The flames were sweeping the whole length of the store, and escaping from the front. From the time I heard the alarm until I got there was between three and four minutes. *** I went in through the door behind the stream of water. *** When I first got in there was a great deal of fire burning. It was burning very fiercely. All the goods seemed to be on fire. There wasn't much woodwork burning, except the roof." Laudenklos: "The only thing I could see was a mass of flames. It was escaping from the store from the first story and the second story,--from both stories; the whole of the frontage. It was a pretty strong flame. There was a great deal of smoke, and a great deal of fire. The smoke was dark. It was not more than usually dark. *** I entered the building from the front. *** Went in behind the water. There was a volume of flames in there. The whole of it seemed to be in flames. The fire was intense. It had covered the whole lower floor, *** burning about the same all over. *** I took notice of how the clothing was burning *** when I got upstairs. It was all piled up on the counters or tables, as you call them,--piled in rows,--and the outside edges were burned off, and *** a little on top. Did not pay much attention to whether that was uniform all over the building. *** It was all about burned alike, that I seen of it. *** We *** were not longer than five minutes in getting to the fire after the alarm." Austin: "We got to the fire about two minutes after we got this alarm. *** The flames on the lower floor poured out across the street. *** Just before we got to Ash street, on Front, the windows blew out, and the smoke and flames came out of the upper windows almost as far out as the ones on the lower floor. They reached almost halfway across the street,--fifteen or twenty feet from the building. Before we got in the building the lower windows were broken. *** They broke just after we turned on Front street. The smoke and flames were pouring out when we turned into Front street. We saw the windows come out upstairs. We could hear the windows break as they came out. Well, the windows went out about as you would confine gas or any hot thing to break a window. They go off with a kind of dull report. *** The fire was burning all over the entire lower floor, so far as I could see, and the upper floor I should judge to be in the same condition. The flames were coming out in as great volume upstairs as below; all over the store generally about the same; pouring out of all the openings upstairs and down." And Wemple, among other things, as follows: "I traveled as fast as the horse could go, and from the time I heard the first stroke of the bell until I got to the fire, I should say, two or three minutes. When I arrived there, the smoke and the blaze was coming out of the upper windows, and down below. *** The fire was burning all over. There seemed to be fire all over everywhere. I could not say whether the fire was burning uniformly or not. It was burning everywhere."

The assignments of error, covering the matters objected to, as they concern these witnesses, are numbered from 2 to 13, inclusive; and we will recite such of the interrogatories in their order, together with the answers thereto, as may be deemed pertinent to a clear understanding of the questions involved, and the opinion of the court touching them: (2) Question. (To Campbell.) "I will ask you to state, from your experience as a fireman, and from what you observed in regard to this fire, whether or not, in your opinion, this fire was burning naturally on material that it had to feed upon, or whether, in your opinion, something of an inflammable character had been distributed, to accelerate the fire, and give it some better food than the merchandise naturally would that was burning." Answer. "It was my opinion that the fire was an incendiary fire." (3) Q. "I will ask you if you have ever known of any other fire, that you have had experience with, in cotton or woolen goods, of the combined texture of cotton and wool, to burn naturally as this fire burned." A. "No; I do not know as I have." (4) Q. (To Laudenklos.) In effect, the same as 3. (5) Q. "Supposing the hatch over the elevator had been closed, do you think the fire could have started below, and have gotten up and spread up the upper floor as rapidly as it did, having only the stairway as a means of getting in the upper story, if it had been a fire burning from natural causes?" (6) Q. (To Austin.) "I will ask you to state, from your experience as a fireman, whether or not a fire burning naturally, without any substance which would have a tendency to create gas, would gather sufficient force within a building to blow the windows out." A. "Well, I think, in time, it would. The hot air and the gases from any burning substance at all will eventually accumulate enough gas to blow out an ordinary window, in time, with extreme heat." (7) Q. "What do you say in regard to the capability of a fire burning on the lower floor of this store, in which was contained clothing, consisting of wool and cotton, and a mixture of both wool and cotton, samples, suspenders, and collars, being able to generate sufficient power to open the iron doors and windows, which were situated on the rear end of that building, without the presence of some material which would have a tendency to generate more gas or explosive force than this property naturally would in burning?" (8) Q. "If those doors and windows had blown out, say, within three minutes after the fire started, what would you say?" (9) Q. (To Wemple.) The same in purport as No. 2. (10) Q. The same in purport as Nos. 7 and 8. (11) Q. "I will ask you to state, from your experience as a fireman, answering now from your own knowledge and observation, whether or not it is your opinion that this fire originated and burned from natural causes, or was an incendiary fire,--burning upon some inflammable material which had been distributed in the store for the purpose of accelerating and aiding the fire." A. "I could not say. I did not investigate it. The fire was out of my district. I had no chance to investigate it." (12) Q. "I speak now from your own observation of the conditions there. Do you say, from your observation of the conditions there, and from your knowledge and experience as a fireman, that it was burning naturally, as an accidental fire may have started, or was it burning on material contained in the store, without any aid from more inflammable material spread over the store?" A. "No; it could not." (13) Q. "Or do you say that it was an incendiary fire; that is to say, preparation had been made for it,--material had been laid to help the fire along?" A. "I could not say as to that. Of course, as I said before, it would have had to have had some assistance, in some way, to burn as it did. It might have been gases of some kind."

From the nature of the questions put to these witnesses, they may be classified as: (1) Those touching the character of the conflagration,--whether it was such as would naturally result from the burning of the stock of goods known to have been contained in the store, without the aid of more inflammable matter, or whether some substance of a more inflammable nature had been added, which accelerated its action. Nos. 2, 9, 11, 12, and 13 are of this class. (2) Those calling for an opinion of the witnesses as to whether the fire would have spread to the upper floor as rapidly as it did, or have forced open the iron doors and shutters in the rear of the building, if it had been burning from natural causes. Of this class are Nos. 5, 6, 7, 8, and 10. And (3) those which simply called for the experience of the witnesses as to the appearance of such phenomena at other fires within their knowledge. Of this class are Nos. 3 and 4. It may be premised, in this connection, that the answer to question 2 was not responsive; that questions 3 and 4 elicited nothing of value to either party, and nothing to their prejudice; and that the answers to questions 6 and 11 were unquestionably harmless, assuming that the questions themselves were incompetent.

The question for the jury to determine was whether the assignors of plaintiff set or...