McGilvra v. Minneapolis, St. Paul, & Sault Ste. Marie Railway Company

• Decision Date: 24 October 1916
• Citation: McGilvra v. Minneapolis, St. Paul, & Sault Ste. Marie Railway Company, 159 N.W. 854, 35 N.D. 275 (N.D. 1916)
• Court: North Dakota Supreme Court

159 N.W. 854

35 N.D. 275

M. T. MCGILVRA v. MINNEAPOLIS, ST. PAUL, & SAULT STE. MARIE RAILWAY COMPANY, a Corporation

Supreme Court of North Dakota

October 24, 1916

Action to recover damages for injury occasioned by a prairie fire.

Appeal from the District Court of McIntosh County, Frank Allen, J.

Judgment for plaintiff. Defendant appeals.

Affirmed upon condition.

Lee Combs and L. S. B. Ritchie, for appellant.

At common law unattested instruments were only admissible in evidence when the exhibit was proved by someone who was present and saw the execution, or by testimony or admission of the person signing same, or by testimony of someone familiar with the handwriting of the maker. 17 Cyc. 155, 442.

In proving value of personal property, "one who has merely heard of sales is not thereby qualified." Thompson v. Moiles, 46 Mich. 42, 8 N.W. 577; Michael v. Crescent Pipe Line Co. 159 Pa. 99, 28 A. 204.

A witness who bases his evidence as to the value of land upon what he has heard others say about it, or about the purchase and sale of it, is not qualified. Oregon R. & Nav. Co. v Eastlack, 54 Ore. 196, 102 P. 1011, 20 Ann. Cas. 692.

"Opinion or expert evidence is not admissible to show the effect of fire upon grass upon prairie land, since the effect of a fire is susceptible of direct proof." Gates v. Chicago & A. R. Co. 44 Mo.App. 488; Wesson v. Washburn Iron Co. 13 Allen, 95, 90 Am. Dec. 181.

Where a verdict is based upon speculative or conjectural evidence, it will be set aside. Spicer v. Northern P. R. Co. 21 N.D. 61, 128 N.W. 302; Minneapolis Sash & Door Co. v Great Northern R. Co. 83 Minn. 370, 86 N.W. 451; 33 Cyc 1396; Smith v. Northern P. R. Co. 3 N.D. 17, 53 N.W. 173.

The correct rule of damages in this state in such cases is the difference between the value of land before and after the fire has passed over it, where the owner of the land bring suit. Cleveland School Dist. v. Great Northern R Co. 20 N.D. 124, 28 L.R.A.(N.S.) 757, 126 N.W. 995.

For rented land, the measure would be the rental value. Quinn v. Chicago, M. & St. P. R. Co. 23 S.D. 126, 22 L.R.A.(N.S.) 789, 120 N.W. 884.

The instructions of the trial court ignore the rule requiring the limitation of such instructions to the testimony of the witness or witnesses upon material matters in the case. Schnase v. Goetz, 18 N.D. 594, 120 N.W. 553; McPherrin v. Jones, 5 N.D. 261, 65 N.W. 685; Remington v. Geiszler, 30 N.D. 346, 152 N.W. 661.

G. M. Gannon, for respondent.

It is now generally held that a sufficient foundation has been laid by the testimony of a witness who has had correspondence with the person or firm whose signature is sought to be proved, and that the signature in question corresponds with that on the correspondence to entitle such witness to testify, and that such proof, prima facie, entitles the instrument to be received in evidence. Abbott, Civil Jury Trials, p. 442, § 25; Murray v. Walker, 83 Iowa 202, 48 N.W. 1078; Rogers v. Ritter, 12 Wall. 317, 20 L.Ed. 417; 17 Cyc. 155, 428.

Proof of possession of real property is prima facie proof of title, and is all that is required to maintain an action for trespass. Comp. Laws 1913, §§ 2799, 7936; 4 Sutherland, Damages, 3d ed. §§ 1009-1012; Ross v. Lawson, 105 Ala. 351, 16 So. 890; Smith ex dem. Teller v. Lorrillard, 10 Johns. 338; Jackson ex dem. Murray v. Denn, 5 Cow. 200.

The doctrine that possession, actual or constructive, is all that is necessary to maintain the action of trespass, is elementary. 38 Cyc. 1004; Abbott, Trial Ev. 2d ed. 801, 802, chap. 37; Wigmore, Ev. § 2515; 4 Sutherland, Damages, 3d ed. p. 2955.

In an action against a railroad company for damages from fire, evidence that the locality was uninhabited and that the fire was discovered in dry grass soon after the locomotive had passed, and which fairly negatives other causes, held sufficient to sustain a finding that the fire was set by the locomotive. W. H. Ferrell & Co. v. Great Northern R. Co. 114 Minn. 531, 131 N.W. 1135.

Where testimony is conflicting the issue is for the jury. 8 R. C. L. 48.

The measure of damages for the destruction of a valuable commodity for which there is a regular and constant demand is ordinarily the market price at the place where it was destroyed; but when there is no such market, the market price at other places, with cost of transportation, may be shown. Allen v. Chicago & N.W. R. Co. 145 Wis. 263, 129 N.W. 1094.

OPINION

BRUCE, J.

This is an action to recover damages for the destruction of hay and injury to real estate by reason of a fire claimed to have been set by the defendant's engine at a point about 3 miles southeast of the town of Wishek, in McIntosh county. A judgment for $ 750.08 was entered for the plaintiff, and against the defendant, and the defendant appeals. This opinion is written after a rehearing.

Appellant first contends there was no evidence to go to the jury on the question as to whether the defendant caused the fire. All of the evidence that there is upon the subject is that a passenger upon a train of the defendant company saw a fire start up at some distance from the railroad track as the train passed. He said that he did not know whether the fire started from the right of way or not. He, however, said that he saw nobody around the place, that the fire was on the east side of the track, and that he thought the wind was from the west.

In addition to this was the testimony of the plaintiff, that he had followed the trial of the fire to a point near defendant's right of way, but that he could not tell just where it started, as it appeared to have burned in all directions. There is other testimony that the wind was from the northwest and that the track was to the west of the place of the fire.

Meager though this evidence is, we think it was sufficient. Many a man indeed has been hung on circumstantial evidence which was much weaker than that which is before us. The fire started near the railroad track and on the open prairie. No human beings seem to have been in the neighborhood except the occupants of the train. There is no proof that there was any fire communicating agency in the neighborhood but the engine. The grass was dry and the wind was blowing towards it from the track. The fire seems to have started up almost immediately after the engine had passed the spot. There is no evidence that it was seen before the engine had passed. A prima facie case as to the origin of the fire was certainly made by the plaintiff, and this case was in no way rebutted or disproved. Babcock v. Canadian Northern R. Co. 117 Minn. 434, 136 N.W. 275, Ann. Cas. 1913D, 924.

We are not unmindful of the case of Smith v. Northern P. R. Co. 3 N.D. 17, 53 N.W. 173, on which counsel for the defendant lays much stress in his brief and argument. That case, however, is not in point. It was handed down prior to the enactment of § 4654, Compiled Laws of 1913, which makes railway companies liable for the fires which are started by their engines, irrespective of the question of negligence. It was, therefore, necessary in that case to prove negligence in the operation of the engine or in its equipment. All that the court held was that the mere fact that a fire started 118 feet from the engine was not itself sufficient proof of such negligence, or of the lack of a proper equipment. It was admitted that the fire was started by the engine, and the question of its origin was not involved or discussed. Here the question before us is a question of origin, and not of negligence.

The next point raised is that the plaintiff failed to offer any competent proof of his ownership of the east half of section 1, township 131, range 71, and thus to lay a foundation for the recovery of damages for the destruction of the hay upon said land. It is claimed that his evidence consists merely of a certain agreement which purported to have been signed by John T. Bressler, trustee, and by the plaintiff, and which declared that the said McGilvra had rented the land for the year 1914, and had agreed to pay $ 40 "for the use of the above land for hay and pasture purposes for the season of 1914, and thereafter for five years at the same rate, payable in advance, with the privilege to fence the land and remove the same in case the land is sold. This lease made subject to the sale of the land at any time, and may be canceled on date of the sale of the land, and the rental pro rated to that date." It is argued that all the proof that there is of the making of this instrument is the testimony of the witness Gannon, who testified that he was acquainted with the signature of John T. Bressler, and that the signature on the contract was his. It is argued that § 5569 of the Compiled Laws of 1913 provides that "proof of the execution of an instrument, when not acknowledged, may be made either (1) by the party executing it, or either of them; or, (2) by a subscribing witness; or, (3) by other witnesses mentioned in §§ 5019 and 5020,"--and that §§ 5019 and 5020, Revised Codes of 1905 (being §§ 5571 and 5572, Comp. Laws 1913), merely provide for proof of the execution by proof of the handwriting of the party and of a subscribing witness, and then only:

1. "When the parties and all the subscribing witnesses are dead; or,

2. When the parties and all the subscribing witnesses are nonresidents of the state; or,

3. When the place of their residence is unknown to the party desiring the proof, and cannot be ascertained by the exercise of due diligence; or,

4. When the subscribing witness conceals himself, or cannot be found by the officer by the exercise of due diligence in attempting to serve a subpoena or attachment; or,

5. In case of the continued failure or refusal of the witness to testify for the...