Star Mfg. Co v. Atl. Coastline R. Co

• Decision Date: 02 December 1942
• Docket Number: No. 235.,235.
• Citation: 23 S.E.2d 32,222 N.C. 330
• Court: North Carolina Supreme Court
• Parties: STAR MFG. CO. v. ATLANTIC COASTLINE R. CO.

23 S.E.2d 32

222 N.C. 330

STAR MFG. CO.

v.ATLANTIC COASTLINE R. CO.

No. 235.

Supreme Court of North Carolina.

Dec. 2, 1942.

[COPYRIGHT MATERIAL OMITTED]

[COPYRIGHT MATERIAL OMITTED]

Appeal from Superior Court, Johnston County; W. C. Harris, Judge.

Action by Star Manufacturing Company against Atlantic Coast Line Railroad Company for damages arising out of the destruction of the plaintiff's mill, machinery, equipment and stock on hand by a fire alleged to have been caused by sparks emitted from a locomotive of the defendant. From a judgment for defendant, the plaintiff appeals.

No error.

This is an action to recover damage arising out of the destruction of plaintiff's mill, machinery, equipment and stock on hand by fire alleged to have been caused by sparks emitted from a locomotive of the defendant. The case was submitted to the jury upon two issues, which read: "1. Was the property of the plaintiff burned and damaged by negligence of the defendant as alleged in the complaint?" and "2. If so, what damage is plaintiff entitled to recover?"

All of the evidence tended to show that in Benson on May 9, 1941, about 8 o'clock P. M, the freight train No. 2006 of the defendant passed the lumber mill of the plaintiff, on a lot near the right of way of the defendant, and that soon thereafter a fire was discovered about the mill, which spread rapidly and destroyed the building and its contents.

The jury answered the first issue in the negative, and left the second issue unanswered. From judgment for the defendant predicated on the verdict, the plaintiff appealed, assigning errors.

L. L. Levinson, of Benson, and Ehring-haus & Ehringhaus, of Raleigh, for appellant.

Thomas W. Davis, of Wilmington, Abell, Shepard & Wood, of Smithfield, and Rose & Lyon, of Fayetteville, for appellee.

SCHENCK, Justice.

Appellant's assignments of error Nos. 1 and 2 relate to the evidence elicited from the president of the plaintiff company, on cross examination, over plaintiff's objection, as to his own financial experiences (covering exceptions 1 to 12, inclusive), including testimony to the effect that the witness, R. F. Smith, was financially insolvent before the formation of the plaintiff corporation, that the corporation was formed in 1917 by funds of his wife, $2,500, and that there were issued 25 shares of stock in the corporation, 23 of which are owned by his wife, and one share each by him and his son, Roy Smith, and that the corporation now owned property, real and personal, of many thousand dollars value. These exceptions are untenable, as all of the testimony assailed by them tended to show the interest and bias of the witness in the litigation, and was therefore competent to impeach his testimony. "There is no doubt that the interest of a party or of a witness, in the event of the cause, isa circumstance available to impeach him." Wigmore on Evidence, Vol. II, § 966. "Evidence tending to show bias on the part of a witness is competent, as it enables the jury to properly weigh and consider his testimony". Bailey v. Winston, 157 N.C. 252, 253, 72 S.E. 966. "Ordinarily * * * a witness may be asked any questions on cross-examination which tend to test his accuracy, to show his interest or bias, or to impeach his credibility". State v. Beal, 199 N.C. 278, 154 S.E. 604, 617.

The next assignment of error discussed in appellant's brief is designated as assignment of error No. 3, (covering exceptions 13 and 17 to 20 inclusive), and relates to the admission, over objection of plaintiff, of evidence as to statements made relative to valuations in the tax listings of the property destroyed by fire. The rule with us, ordinarily, is that evidence of tax value listings on real estate is not competent on an issue of valuation, while evidence of such listings on personal property is competent on such an issue. The evidence assailed refers to tax listings on personal property. And, further, a large part thereof relates to what the officers of the plaintiff company represented concerning the values placed on the personal property by them at the time the listments were made, such values being far less than the values sued for and testified to in the trial, the former being $3,575 and the latter being something over $107,000. Such evidence was competent to contradict, and thereby impeach, the testimony of said officers.

In speaking to the subject of alleged damage by fire, in Peterson v. Tidewater Power Co., 183 N.C. 243, 111 S.E. 8, 11, Walker, J, says: "It would be competent to show any estimate of its value made by the plaintiff [the owner of the damaged property] * * *."

The difference in the rule with regard to the competency of the tax list as to the value of real estate and the value of personal property doubtless has its origin in the fact that the owner is required by the machinery acts to list his real estate by acreage, dimensions or other physical description, together with location, while he is required to list the "amount and value" of his personal property. In real estate listments the value is fixed by the tax authorities; in personal property listments the value is fixed, or, at least, "given in" by the owner, hence the values in the former would not be statements made by the owner in contradiction of subsequent statements made by him at variance therewith, they being res inter alios acta, whereas in the latter the reverse would be true.

Assignment of Error No. 3 is untenable.

Assignment of Error No. 4 (covering exceptions 14, 15 and 16) relates to the Court's refusal to grant the plaintiff's motion for an order that the defendant produce certain written statements signed by the engineer, fireman and brakeman soon after the fire occurred, which these employees of the defendant testified they used to refresh their recollection before becoming witnesses. This assignment is untenable for the reason that C.S. §§ 1823 and 1824, furnishing the method by which writings in the possession of an opposing party may be produced for inspection and copy, contain certain requirements of the party making application for an order for such production, and the record fails to disclose that any of such requirements were met by the plaintiff. Furthermore, when the requirements of the applicant are met, the statute does nothing more than vest the granting of such application in the discretion of the judge. Merchants' Nat. Bank v. Newton, 165 N.C. 363, 81 S. E. 317; Dunlap v. London Guaranty & Accident Co., 202 N.C. 651, 163 S.E. 750. And, still further, it does not appear that the witnesses used, or attempted to use, on the stand the writings sought to be produced, nor that such writings were in court at the time they were testifying, which, it seems by the weight of authority, was requisite for their compulsory production. See case note citing authorities, including those of this jurisdiction, in 125 A.L.R. p. 200.

Assignments of Error Nos. 5 and 6 (covering exceptions 21 to 28 inclusive, and 28A and 28B), relate to exceptions to various evidence as to certain persons being upon the premises of the plaintiff at other times than the actual time of the fire, and as to certain articles and appliances used and found upon the premises before and after the fire.

A number of the exceptions covered by these assignments are rendered impotent by reason of the fact that plaintiff's motions to strike the answers to the questions to which they were addressed were allowed, among these being excep-tions 21, 22 and 23, relative to people on the premises destroyed by fire.

Exceptions 24, 25, 26 and 27 all relate to the testimony of the witness Norris, who was a night watchman at the Benson Oil Mill located just across the tracks of the defendant railroad from the plant of the plaintiff, to the effect that he had seen on several occasions people loitering around the plaintiff's plant at night using flash lights and striking matches under the plant. This testimony was competent to show that the fire which destroyed plaintiff's plant could have started from causes other than those alleged in the complaint. This evidence has especial significance, since the same witness testified, without objection, that he saw a car drive up to the plant of the plaintiff the night of the fire, and that men from the car were there about half an hour before the fire was discovered.

Exception 28 relates to the testimony of the witness Hardee to the effect that after the fire he saw in the possession of the foreman of the plaintiff's plant certain metal cans found on premises after the fire which "had been exploded; they were blown open" and were "size 1¹/₂. Paraffin is mostly put in1¹/₂size cans". This evidence cannot be held to be foreign to the issue under investigation since it related to facts and circumstances which might have thrown light upon the fact sought to be ascertained, namely, the origin of the fire, --it at least tended to establish a link in the chain of proof. "Greenleaf says (1 Green.Ev., § 51a): 'It it not necessary that the evidence should bear directly on the issue. It is admissible if it tends to prove the issue or constitutes a link in the chain of proof, although, alone, it might not justify a verdict in accordance with it.' " Bank v. Stack, 179 N.C. 514, 103 S.E. 6, 7.

Exception 28A has no merit since the defendant's motion to strike the answer to the question to which it was addressed was allowed.

Exception 28B relates to certain testimony to the effect that the plaintiff had at its plant an oil stove used to heat a glue pot. If the admission of this testimony in the first instance was error, such error would seem to have been cured by the subsequent admission of testimony to the same effect from the same witness, without objection. However, we are not of the opinion that the admission of such testimony in the first instance was error. The testimony at least tended to establish a link in the chain of proof, or to prove a fact tending to show that the fire might have...