Fishman v. Consumers' Brewing Co.

• Decision Date: 14 June 1909
• Parties: FISHMAN v. CONSUMERS' BREWING CO.
• Court: New Jersey Supreme Court

73 A. 231

78 N.J.L. 300

FISHMAN

v. CONSUMERS' BREWING CO.

Supreme Court of New Jersey.

June 14, 1909.

Appeal from District Court of City of Newark.

Action by Max Fishman against the Consumers' Brewing Company. Judgment for plaintiff, and defendant appeals. Reversed.

Argued February term, 1909, before REED, TRENCHARD, and MINTURN, JJ.

Child & Carter (Riker & Riker, of counsel), for appellant.

Philip J. Schotland, for appellee.

MINTURN, J. The plaintiff's horse, top buggy, and other chattels incident thereto, were destroyed by a fire, which, as plaintiff alleges, originated in a heap of burnt ashes adjoining the stable of Nicoll & Co., where the property in question was kept. The ash heap was upon defendant's premises close to the stable, and the fire took place about half past 3 o'clock of the morning of February 19, 1908. The plaintiff, over continuous objections, deemed it necessary for the purpose of his case to ask the witness Martin these questions: "Q. To your knowledge was there a fire at the same place before this? A. Yes, sir. Q. When was that? A. On the 14th of December, 1901. Q. And did you make an investigation at that time? A. Yes, sir. Q. What did you find at that time might cause the fire? A. Hot ashes against the weatherboards. Q. What burned at that time? A. Weatherboards. Q. Did you make an investigation of the cause of those weatherboards burning at that time? A. Yes. Q. Where were those weatherboards you speak of? A. About the same location as the last fire." It further appeared from the testimony of this witness that after the 1901 fire a sheet iron plate had been placed between the ash heap and the stable, and that, when this witness reached the scene of the fire shortly after it started, that iron plate was not hot, but cool enough, indeed, to enable him to handle it. It will be perceived therefore that the conditions preceding the two fires were essentially different. The only purpose, apparently, which could actuate the plaintiff in introducing this character of testimony as material to his cause is the specious reasoning included in the proposition, propter hoc, the fire of 1901 originated; argo post hoc, the fire in question must have so originated; and it requires no elaboration of argument to expose the fallacy of such a syllogism both in logic and in law. "Relevancy of testimony," as defined by Stephen, is: "That any two facts to which it is applied are so related to each other that, according to the common course...