First Nat. Bank of Portland v. Home Ins. Co.

• Decision Date: 30 April 1898
• Citation: 52 P. 1055,33 Or. 234
• Parties: FIRST NAT. BANK OF PORTLAND v. HOME INS. CO.
• Court: Oregon Supreme Court

52 P. 1055

33 Or. 234

FIRST NAT. BANK OF PORTLAND v. HOME INS. CO.

Supreme Court of Oregon

April 30, 1898

Appeal from circuit court, Multnomah county; Alfred F. Sears, Judge.

Action by the First National Bank of Portland against the Home Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

W.W. Cotton, for appellant.

H.E McGinn, for respondent.

WOLVERTON J.

The action in this case is to recover upon three policies of insurance against loss or damage by fire, which were concurrent with the policies sued on in First Nat. Bank of Portland v. Commercial Union Assur. Co. and Same v. Phoenix Assur Co. (just decided) 52 P. 1050. This case was tried before the others, but the issues presented by the pleadings are identical. Two questions are raised here, one of which is settled by the opinion in those cases. The other we will now dispose of.

One Henry Jacobs was called by the defendant as a witness in its behalf, and was asked whether he had not made a certain supposed statement in the presence of certain parties, at a given time and place, which he denied. Thereafter it called Louis Prager, and put to him the following question "State if, on the 21st day of October last, in your store, in the city of Portland, you and Jacobs being together, you had a conversation with Jacobs in regard to the Wolf fire, in which Jacobs said he had applied a compound of alcohol and arsenic and some other material to the goods in the store of H. Wolf & Bro.; that there was a scheme to set it off that night about twelve or half past twelve o'clock; that it was set by a candle which had been so arranged or fixed as that it would burn down and come in contact with the inflammable material about that time of the night; that Marcus Wolf fixed the candle, and he must have been nervous, and tipped it over, or something to that effect; and that the fire went off sooner than was intended; and that Jacobs was procured to do this job by H Wolf and Marcus Wolf,--or words to that effect." Counsel for plaintiff interposed an objection, which, on being sustained by the court, was immediately withdrawn, and witness answered, "Yes." In the course of the cross-examination the following colloquy took place between the court and the attorneys for plaintiff; "The Court It has occurred to me that it would not be improper for me to exclude all this testimony. It is entirely immaterial, and I do not see but that I shall be compelled to instruct the jury that it will be considered for no purpose whatever, except as impeaching the witness Jacobs. I may decide to strike this matter out of the case entirely. Judge McGinn: I agree with your honor that it is entirely immaterial, but I do not want one thing in the world kept from the jury. I want them to know that man (pointing to the witness) and his heart when they pass upon the issues in this case. It is a very material matter. I want this man's feelings to come before this jury when they pass judgment upon Mr. Wolf and his children. I want to show his relations with Jacobs. I want to show to the jury the feelings of this man towards Mr. Wolf. I want everything that he can say brought before this jury, in order that his heart--his wolfish spirit--may come before this jury when they give in their judgment. There sits the man who caused that stock to be burned, and I will prove it before this case ends. The Court: You may complete your examination." Other witnesses were produced, who testified to the same purport. When the case was submitted to the jury, the court withdrew the evidence as indicated except as it might operate in the impeachment of the witness Jacobs. It is urged that since the court had permitted the testimony to remain in the case with a full appreciation of its...