Hamilton v. Cranford Mercantile Co.

• Decision Date: 23 March 1918
• Docket Number: 6 Div. 419
• Citation: 201 Ala. 403,78 So. 401
• Parties: HAMILTON v. CRANFORD MERCANTILE CO.
• Court: Alabama Supreme Court

78 So. 401

201 Ala. 403

HAMILTON v. CRANFORD MERCANTILE CO.

6 Div. 419

Supreme Court of Alabama

March 23, 1918

On Rehearing April 15, 1918

On Rehearing.

Appeal from Circuit Court, Walker County; J.J. Curtis, Judge.

Action by S. Hamilton against the Cranford Mercantile Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Finch &amp Pennington and Ray & Cooner, all of Jasper, for appellant.

J.H Bankhead, Jr., of Jasper, for appellee.

McCLELLAN J.

This is an action for damages, instituted by the appellant against the appellee. It is apparent that the material issues were due to be submitted to the jury for decision. It is so stated in the brief for appellant (plaintiff), against whom the jury determined the issues. The subject of the plaintiff's claim is the value of a stock of merchandise and fixtures and he set forth his claim in several counts to this effect, viz.: That the defendant negligently handled or stored in violation of law large quantities of dynamite and gunpowder in a wooden warehouse, adjacent to plaintiff's storehouse, in a thickly populated part of the town of Jasper, and that its explosion was the proximate cause of the destruction of plaintiff's stock and fixtures. The defendant pleaded the general issue. All of the errors assigned and argued, upwards of 80 in number, relate to the admission or rejection of evidence and to the instruction of the jury. The only practical way to treat the questions made on the appeal seems to be to consider the assignments as classed and argued for appellant. As extracted from the evidence, the defendant's theories were: That the explosion occurred on the plaintiff's premises, not in the warehouse of the defendant; that the proximate cause of the destruction of plaintiff's property was fire, not the explosion of dynamite or powder, even though about 45 pounds of dynamite did explode in defendant's warehouse when it was consumed by fire that also burned plaintiff's storehouse and another building; that the defendant was not negligent either in the storing or handling of explosives in its warehouse, and did not have therein an excessive quantity (over 50 pounds) stored.

Twenty-six of the assignments, argued together in the brief for appellant, bring into question the action of the court in respect of opinion evidence, admitted for the defendant, touching the relative duration of the fire in the defendant's building and the plaintiff's building, and, also, whether the plaintiff's property could have been saved from destruction by fire regardless of the latterly occurring explosion of dynamite in defendant's warehouse. In Seals v. Edmondson, 71 Ala. 509, 515, this court had occasion to consider the admissibility of nonexpert opinions, given by persons with knowledge of the elements involved in the inquiry upon which their opinions were invited, with respect to the spontaneity and rapidity with which cotton will burn when fire is communicated thereto. There the issue seems to have been whether the cotton was ignited by fireworks which, according to the opinions indicated, would have caused an immediate conflagration and a rapid destruction of the cotton, or whether it was ignited through the negligence of the warehouseman and was slowly fired and consumed. This court justified the reception of these opinions from informed, but nonexpert, witnesses. Authority for this conclusion was found in 1 Wharton on Ev. § 510; and, we may add, the succeeding sections (511, 512) from that author might well have been also cited in support of this court's holding. This court there said, through Chief Justice Brickell:

"This is the substance of the evidence, and we understand from the recitals in the bill of exceptions that the witnesses had been engaged in the cotton business; that from their employment or pursuits they had peculiar opportunities of observing cotton, its nature and quality, and its liability to catch fire and burn; that cotton is peculiarly combustible. That it is its nature to take fire quickly, and to burn rapidly is a fact to which any witness having knowledge of it may testify. The fact was involved in the evidence we are considering, and, without stating the fact itself, a witness would probably state the inference involved in it. 1 Whart.Ev. § 510. But how far this may be true is not material, for the witnesses were peculiarly conversant with cotton, and with propriety could express an opinion as to its combustibility, and the difficulty of extinguishing fire burning it, as, after examination, they could, if material, have expressed an opinion as to its marketable grade or classification, and consequent value."

Wharton, at section 510, states the rule to be that:

When "the opinion is the mere shorthand rendering of the facts, then the opinion can be given, subject to cross-examination as to the facts on which it is based."

At sections 511, 512, the author affirms, as the result of evident necessity, that nonexpert opinions of informed witnesses are admissible when the only practicable means to adduce testimony of the fact is to permit the informed witness to describe its effect on his mind or to give his opinion on a subject with which he is specially acquainted, but which cannot be specifically described. The doctrine illustrated in Seals v. Edmondson, supra, and defined by Wharton, was recently recognized and applied in A. Coast Line Ry. v. Enterprise Oil Co., 74 So. 232, 235, as well as in Birmingham, etc., R.R. Co. v. Williams, 190 Ala. 53, 57, 58, 66 So. 653. Both of these litigants entered upon the contest of the issues indicated by the subjects of the inquiries involved in the opinions sought as before stated. We are unable to conceive of any other means by which to have brought forward evidence to establish or to refute the propositions asserted, so to speak, by these litigants than through opinions of those sufficiently informed to have an opinion in the premises. It was hence entirely proper to qualify such witnesses to form an opinion, and to develop through their examination the conditions and circumstances upon which the opinion was based. It is hardly necessary to add that where such opinions are admissible no offense is committed against the rule that forbids the substitution of a witness' opinion on the issue of fact the jury is called to decide; nor is offense committed against the rule that forbids the introduction of a witness' opinion upon a matter that the jury, in the exercise of common knowledge and experience, is equally competent to consider and form an opinion or conclusion from the facts disclosed by the evidence.

The determination of the qualification of a witness to give an expert opinion, or an opinion not expert, but permissible under the rules before reiterated, is a preliminary inquiry, addressed to the trial court; and its decision is submitted to the sound discretion of the trial court under the evidence bearing upon such inquiry. White v. State, 133 Ala. 122, 32 So. 139; L. & N.R.R. Co. v. Sandlin, 125 Ala. 585, 28 So. 40; Ins. Co. v. Stephens, 51 Ala. 123; Ala.C. & I. Co. v. Heald, 168 Ala. 626, 643, 644, 53 So. 162; L. & N.R.R. Co. v. Elliott, 166 Ala. 419, 52 So. 28; Jones on Ev. 369.

While an hypothetical question propounded to an expert on his examination in chief is objectionable if it contains elements of fact not shown in the evidence, yet such a question to an expert witness is not objectionable because it omits to hypothesize every fact in evidence. An examiner of an expert witness may lay, as a basis for the opinion invited, only those facts in evidence which conform to the theory he would establish. Of course, such questions must also incorporate sufficient of the facts in evidence to fairly justify the formation of an opinion on a material issue in the case. The frame and substance of hypothetical questions to expert witnesses is a matter largely committed to the discretion of the trial court. B.R. & E. Co. v. Butler, 135 Ala. 388, 395, 33 So. 33; Morrisett v. Wood, 123 Ala. 384, 26 So. 307, 82 Am.St.Rep. 127; Parrish's Case, 139 Ala. 16, 43, 36 So. 1012; Long Distance Co. v. Schmidt, 157 Ala. 391, 47 So. 731; B.R., L. & P. Co. v. Saxon, 179 Ala. 136, 59 So. 584; Jones on Ev. §§ 370, 371; 17 Cyc. pp. 244, 250.

The application of these principles to the subjects of the 26 assignments first urged in the brief for appellant and, also, those numbered 9, 10, 11, and 12, requires the conclusion that the court committed no error in those particulars. In this connection, account should be taken of the assignments wherein complaint is made of a denial to plaintiff of the right to adduce opinions of informed witnesses favorable to the plaintiff's contention with respect to the relative duration of the fire in the defendant's warehouse and in the plaintiff's storehouse, and also the probability that the fire in the plaintiff's storehouse could have been controlled by the fire department if an explosion in the defendant's warehouse had not occurred.

The eighth assignment might have possessed merit but for the fact that the witness, in response to subsequent examination by counsel for plaintiff, gave answers covering the subject of the question on the refusal of the court to allow plaintiff to propound which this assignment (8) is based.

On the direct examination of the plaintiff's witness Lee Palmer, the plaintiff's counsel propounded these questions to the witness, both of which are made the subject of the thirteenth assignment:

"It is possible for this warehouse of Cranford's to have burned to the ground, it being something like 10 to 20 feet from the Hamilton building without the Hamilton building catching on fire, in your opinion? What is your best judgment as to that question, suppose you

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