Seckerson v. Sinclair

• Decision Date: 10 February 1913
• Parties: SECKERSON v. SINCLAIR
• Court: North Dakota Supreme Court

140 N.W. 239

24 N.D. 625

SECKERSON v. SINCLAIR

Supreme Court of North Dakota

February 10, 1913

Rehearing denied March 5, 1913.

Appeal from the District Court for Stutsman County, Coffey, J.

Action to recover damages for the destruction of property in a fire alleged to have been set and allowed to escape through the negligence of the defendant. Verdict and judgment for the plaintiff. Defendant appeals.

Affirmed upon condition.

Each party paid his own costs and disbursements upon appeal.

Knauf & Knauf, for appellant.

Where the complaint fails to state facts constituting a cause of action, advantage may be taken by objection to the admission of any evidence at the opening of trial, and where such objection on specific grounds is made, it is error to receive any evidence. James River Nat. Bank v. Purchase, 9 N.D. 281, 83 N.W. 7.

The rule of damages to land by fire is the difference found by the jury in the value of the land before and after the fire. Cleveland School Dist. v. Great Northern R. Co. 20 N.D. 124, 28 L.R.A. (N.S.) 757, 126 N.W. 995.

One must have knowledge of the prices at the place where the property is destroyed, and such knowledge must appear, in order to entitle an expert to give opinion as to values. Santa Cruz v. Enright, 95 Cal. 105, 30 P. 197; San Diego Land & Town Co. v. Neale, 88 Cal. 50, 11 L.R.A. 604, 25 P. 977; Jones v. Mechanics' F. Ins. Co. 36 N.J.L. 29, 13 Am. Rep. 405.

Expert opinion evidence must be based upon full information as to the ascertained or supposed facts, and not upon recollection. Guiterman v. Liverpool, N.Y. & P. S. S. Co. 83 N.Y 358.

Questions seeking opinion evidence as to values or prices must conform to the date of damage or loss. Dana v. Fiedler, 12 N.Y. 40, 62 Am. Dec. 130; Aultman Co. v. Ferguson, 8 S.D 458, 66 N.W. 1081.

In tort actions the awarding of interest on amount recovered is discretionary with the jury, and the court shall so charge. Rev. Codes, § 6560; Johnson v. Northern P. R. Co. 1 N.D. 354, 48 N.W. 227.

The court should instruct upon every material point arising in the case. Rev. Codes, § 7021; Moline Plow Co. v. Gilbert, 3 Dak. 239, 15 N.W. 1.

Carr & Kneeland and S.E. Ellsworth, for respondent.

Failure to comply with an order made upon plaintiff's motion to dismiss appeal, allowing certain time to defendant and appellant in which to file undertaking for costs, and conditioned that, upon his failure, the appeal should be dismissed, operates as a dismissal of the appeal.

OPINION

BRUCE, J.

This is an appeal from a judgment of the district court of Stutsman county for $ 1,528.73 and interest thereon, from the time of the injury, in all $ 1,664, for damages occasioned by a fire alleged in one account of the complaint to have been negligently set by the defendant, and in another to have been negligently allowed by him to spread from his land to that of the plaintiff.

There is no merit in appellant's first contention that the court erred in permitting the introduction of evidence under the complaint after objection made by the defendant on the trial. The reason given for the motion to exclude was that the complaint "nowhere described any land belonging to the defendant upon which it was alleged that the fire escaped or spread." Such allegation was not necessary. The basic and material fact which alone needs to be pleaded under the Code (see § 6852, Rev. Codes, 1905) was the fact that defendant negligently started a fire, or negligently allowed a fire to spread from his land, and that such fire was the proximate cause of the injuries complained of. The description of the land could, at most, be a matter of evidence. So, too, the objection made was made at the trial, and not by a motion to make more definite and certain. Even if it had merit, it was too late.

Nor did the court err in refusing to strike out the answer of the witness Seckerson to the question: "Did you follow these traces (of fire) carefully for the purpose of determining where that fire originated?" The objection was based on the assumption that the question called for a conclusion of the witness. This, however, was only the case in so far as the word "carefully" was concerned, and, if erroneous in this respect, was clearly without prejudice. It merely called, in the first place, for the simple answer of "yes" or "no." The answer, as a whole, might possibly have been objected to on the ground that the witness went further, and, in addition to answering "yes," gave the facts of his examination; but the motion to strike out was not made upon this ground, but merely upon the ground that a conclusion was called for. Nowhere, too, in the answer, did the witness give conclusions. He stated merely the naked facts. He stated what he saw. "That the southeast quarter was not entirely burned over; that there was an indication of a straw pile,--you could see where the fire had come out of the remains or ashes of the straw pile. There was more than one of these piles, one-flax and one spelts. They were both in ashes." etc. If, indeed, this answer can be taken as testimony as to conclusions rather than as to facts, there is no case where a person who testifies as to what he has seen or heard does not so testify.

Nor is there any merit in the objection to the questions propounded to and answered by the plaintiff Seckerson, as to the value of the household furniture which was admittedly destroyed. The first question was, "Do you know about what, in the aggregate, this household and kitchen furniture was worth at the time it was burned?" and was answered, "Yes, sir,--yes, very nearly. It was worth about $ 250 to $ 300. I had some tools and machinery burned in the fire. There was a five-horse hitch evener for a gang plow, and several other eveners and singletrees in the barn that were burned. They were worth ten to twelve dollars. The value was between ten and twelve dollars. I lost one truck wagon with a hayrack on, and one narrow-tired wagon running gear in the fire. I don't know how long it had been in use. I had bought them second-handed. The truck was worth $ 22, and the narrow-tired wagon was worth about $ 10." The objection made was that these questions called for a conclusion; that no foundation was laid; that they were not the proper measure of damages, and not admissible under the pleadings. In his brief counsel for appellant argues that the measure of damages for personal property destroyed is its reasonable market value in the nearest market at the time it was burned, and he urges that the question and answer should have related to the time of the burning, not to a year and three months later. We do not think the question is open to these objections. It is well established that the owner of personal property may himself testify as to its value without any other foundation being laid except as to his ownership and knowledge thereof. He need not qualify as an expert on values.

So, too, second-hand goods of the nature described can hardly be said to have a market value, and the rule as to such only requires a strict limitation as to the market values in cases where such values would be the fairest and the best measure of damages, and is ascertainable. What the law requires is certainty as far as possible, and an absence of speculation. It does not, however, require the impossible or the unreasonable. As far as the objection to the time is concerned, it is absolutely without merit. The question was, "Do you know about what, in the aggregate, this household and kitchen furniture was worth at the time it was burned?" It clearly related to the time of the fire, and not to the time of the trial.

So, too, there is no merit in the contention that "the witness could not testify as to what he would take for it, what it is worth to him, or what it would have cost to replace it" (though the latter can often be shown where no proof of market value can be had). The question simply was, "What was the furniture worth?" It was not limited to the worth to the plaintiff, or to anyone else.

Exception is also taken to the allowance by the court, over the objection of the defendant, of certain testimony in regard to "the difference in the value of the land for growing grass of a certain character testified to after the fire had passed over it, compared to what it was just before the fire went over it," defendant contending that the true measure of damages in such cases is the value of the land before and after the fire. Cleveland School Dist. v Great Northern R. Co. 20 N.D. 124, 28 L.R.A.(N.S.) 757, 126 N.W. 995. The admission of this testimony, however, even if erroneous, must have been without prejudice to the defendant, as the court, in its instructions to the jury, in three separate cases, emphatically instructed the jury not to pay any attention to such testimony, and that their verdict must be confined to the other articles enumerated in the complaint, all of which were buildings or personal property. We realize, of course, and defendant argues with great force, that certain errors cannot be cured by an instruction, and that there may be many cases where the courts have held that impressions made upon the minds of the jury can often not be overcome in this way. The cases cited, however, are chiefly those in which the introduction of the evidence was calculated to prejudice the jury against the defendant, and are not, as a rule, cases where a mere item of damages is testified to which the court has afterwards directed the jury to disregard. In one case, for instance (that of Chicago v. Wright & L. Oil & Lead Mfg. Co. 14 Ill.App. 119, 124), the testimony objected to seems to have been introduced for the purpose of inducing the jury to believe that the real defendant was a railway company,...