The Sun Insurance Office of London v. The Western Woolen-Mill Company

• Decision Date: 07 October 1905
• Docket Number: 14,269
• Citation: 82 P. 513,72 Kan. 41
• Parties: THE SUN INSURANCE OFFICE OF LONDON, ENGLAND, v. THE WESTERN WOOLEN-MILL COMPANY
• Court: Kansas Supreme Court

82 P. 513

72 Kan. 41

THE SUN INSURANCE OFFICE OF LONDON, ENGLAND, v. THE WESTERN WOOLEN-MILL COMPANY

No. 14,269

Supreme Court of Kansas

October 7, 1905

Decided. July, 1905.

Error from Shawnee district court; Z. T. HAZEN, judge.

STATEMENT.

THIS was an action upon an ordinary fire-insurance policy to recover for loss and damage to a large quantity of wool which, it was alleged, was caused by fire. The Western Woolen-mill Company had about 30,000 pounds of wool stored in a warehouse in Topeka adjacent to its mill, where it was engaged in the manufacture of woolen cloth. The wool was what is known as "wool in the grease," as it comes from the animal and in its natural state, more or less contaminated with dirt. The insurance company insured the wool "against all direct loss or damage by fire."

On May 29, 1903, the great Kaw river flood, unprecedented in the annals of the state, was at its height. The flood-waters inundated the warehouse and its contents, and this wool was covered with water to the depth of several feet from May 29 to about June 5. It was about three days after the water subsided before the owners were able to obtain access to the wool. It was then found that the wool had floated about on the floor of the warehouse, and had been leveled from the original piles where it was stored and lay in a mass. It was claimed by the owners that spontaneous combustion had taken place in the wool by the action of the water and the length of time it remained in this condition. No fire occurred in or about the building, and it was not claimed that there was any fire except that alleged to have been caused by spontaneous combustion.

The insurance company contends that the damage to the wool was occasioned by its being inundated by the flood, and after the water subsided it became heated; that the damage was caused by reason of the water and heat, without fire, which caused decomposition and injured the fiber of the wool; that as a physical and scientific fact spontaneous combustion cannot take place in wool, or "wool in the grease," as wool is an animal substance; and that spontaneous combustion can only occur in vegetable substances. It was not claimed that the wool itself was entirely destroyed, and it does not appear what quantity of it in weight or bulk was destroyed but it was claimed that all that remained was so affected by the fire that its fiber was damaged and rotted; that its weight was much less than before the fire; and that it was of slight value. Afterward it was mixed with other wool and manufactured into shoddy cloth. Plaintiff claimed, however in effect a total loss.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. EVIDENCE -- Ultimate Fact -- Conclusion of the Witness -- Error Cured. It is error to permit a witness to testify to the ultimate fact to be determined by the jury, or to give his opinion in answer to an inquiry embracing the whole merits of the case; but where, upon further examination, he relates in detail the facts and circumstances upon which his opinion or statement is based the error may become immaterial.

2. EVIDENCE--Fire-insurance--Expert Testimony. Wool merchants and manufacturers who have had years of experience in their business are competent to give opinions based upon facts falling within their experience, such as the effect of water on a large mass of wool and the probability of spontaneous combustion in it.

3. EVIDENCE--Matters of Common Knowledge. In an action on a fire-insurance policy, where the sole question is whether spontaneous combustion occurred, it is not error to refuse to permit an expert chemist to define "fire," "ignition," "ignition point," the relation between "fire" and "flame," and kindred terms, of which the meaning is commonly understood by all well-informed persons.

4. PRACTICE, DISTRICT COURT--Scientific Theories--Question for the Jury. Where scientific works of well-known authority and the opinions of experts are widely at variance upon the question whether spontaneous combustion is possible in a certain substance, courts will not assume, as a matter of law and fact, which theory is true, but will leave its determination to the jury.

5. PRACTICE, DISTRICT COURT--Judicial Notice. Courts will take judicial notice of the meaning of English words, and of such matters of general knowledge, science or natural history as are, or may be, known by men of ordinary understanding and intelligence. "Judicial notice takes the place of proof, and is of equal force."

6. PRACTICE, DISTRICT COURT--Instructions. In the case at bar it was not error to refuse to give an instruction that "wool cannot set fire to itself," nor to define "fire," nor to instruct that "no degree of heat short of ignition producing an actual burning is covered by the policy," where the court of its own motion charged the jury that the definition of the word "fire" was unnecessary, and that "it would make no difference, if there was fire, whether it was in the form of flame or merely smoldering, but there must be in fact the presence of fire."

7. PRACTICE, DISTRICT COURT--Demurrer to Evidence--Direction of Verdict. Evidence examined, and held, that there was no error in overruling the demurrer to plaintiff's evidence, or in refusing at the close of all the testimony to instruct the jury to return a verdict for defendant.

Greene, Breckenridge & Kinsler, and Quinton & Quinton, for plaintiff in error.

Rossington, Smith & West, and Clifford Histed, for defendant in error.

PORTER J. JOHNSTON, C. J., GREENE, BURCH, MASON, GRAVES, JJ., concurring.

OPINION

PORTER, J.

The whole question in the case was whether the damage was caused by the action of fire. The answer specially denied that the damage was caused by fire, and averred that it was caused by water. The issue was raised squarely. The jury found for the plaintiff, and found the amount of plaintiff's damage to be $ 1030. In answer to the only special question submitted, which was by the insurance company, they found that the fire originated by spontaneous combustion. A motion to set aside this finding as not supported by the evidence was denied, as was the motion for a new trial, and the case is here for review. There are twenty-nine assignments of error, but only the ones that seem to require special attention will be noticed, and these in their order. The first twenty-one assignments relate to errors in the introduction of testimony.

The first error complained of is in permitting a witness for plaintiff to testify that there was a fire. J. F. McAfee, the principal witness for plaintiff, and manager of the woolen-mill company, was asked the following question:

"Ques. Now, state whether or not you had a fire in that wool in 1903, and when. [Objected to as calling for incompetent, irrelevant and immaterial testimony, and calling for the conclusion of the witness.] Ans. Why, there was; and it was between the 29th day of May and the 15th of June. [Defendant moved to strike out the answer for the same reasons stated in the objection. The motion was denied, and defendant excepted.]"

To permit a witness to testify to the ultimate fact to be determined by the jury is error. (Solomon Rld. Co. v. Jones, 34 Kan. 443, 8 P. 730; Simpson v. Smith & Barnes, 27 Kan. 565.) It appears, however, that the witness McAfee, upon further examination, testified in detail to what he saw and all the facts and circumstances connected with the wool, and we are inclined to think that in this case the error was not prejudicial. (Solomon Rld. Co. v. Jones, 34 Kan. 443, 8 P. 730. See, also, Sparks v. Bank, 68 Kan. 148, 74 P. 619.)

The next error assigned is that the court permitted the same witness to testify that when the door of the warehouse was opened smoke came out. The objection was that this was incompetent, irrelevant, and immaterial, and called for the conclusion of the witness. There is no error here. Smoke is generally associated with fire, and is one of the most common evidences of fire. The question was whether there was fire in the wool; and while it was incompetent for the witness to testify to the conclusion that there was fire, as in the previous question, it certainly was competent for him to tell what things he saw that were evidences of fire.

The third error complained of is that the same witness was permitted to testify that he had known of wool in a similar condition setting floors on fire. It is claimed by defendant that spontaneous combustion never occurs in wool; that wool is an animal substance, and that only vegetable substances are capable of spontaneous combustion. The witness had testified previously that he had been in the wool business for forty-four years. This made him competent to testify as an expert. (Laws. Ex. & Opin. Ev., 2d ed., 193.) In Whitney and others v. The Chicago and Northwestern Railway Company, 27 Wis. 327, the court held that wool merchants and manufacturers of many years' experience were properly allowed to testify as to "wool waste" and its liability to spontaneous combustion, and that in a certain sense men with such experience are experts. The subject-matter of inquiry here was not one lying within the common experience of all men, so as to make it objectionable as a subject for expert testimony.

"The opinions of experts are limited to matters of science, art or skill, yet this limitation is not applied in any rigid or narrow sense. And every business or employment which has a particular class devoted to its pursuit is said to be an art or trade, within the meaning of the rule." (Rog. Exp. Test., 2d ed., 25.)

The next error assigned is in overruling the defendant's demurrer to plaintiff's evidence. It is sufficient to refer here to some of the numerous rulings of this court to...