Virginia-Carolina Chemical Co. v. Kirven

• Decision Date: 17 April 1900
• Citation: 35 S.E. 745,57 S.C. 445
• Parties: VIRGINIA-CAROLINA CHEMICAL CO. v. KIRVEN.
• Court: South Carolina Supreme Court

35 S.E. 745

57 S.C. 445

VIRGINIA-CAROLINA CHEMICAL CO. v. KIRVEN.

Supreme Court of South Carolina

April 17, 1900

Appeal from common pleas circuit court of Darlington county; R. C Watts, Judge.

Action by the Virginia-Carolina Chemical Company against J. P Kirven. From a judgment for plaintiff, defendant appeals. Reversed.

Boyd & Brown, for appellant.

Willcox & Willcox and R. L. Dargan, for respondent.

JONES J.

This is an appeal in a special proceeding, under section 2517 of the Revised Statutes. Under a warrant issued at the instance of the plaintiff to enforce an agricultural lien for fertilizers, the crop of the defendant was seized and sold. Pursuant to said statute, the defendant, giving the requisite notice, with affidavit, contended that the amount claimed by plaintiff was not justly due. Upon this issue a trial was had in the circuit court before a jury, and the jury found a verdict for the plaintiff for $2,298.

1. Appellant's second exception raises the question whether he was entitled to reply in the testimony on the issue presented. We think the circuit court was correct in denying him this claim. His pleading was a denial of the plaintiff's claim, which placed the burden of proof on plaintiff. Moreover, the statute expressly provides that the person who makes the advances shall be the actor.

The remaining exceptions relate to rulings as to the admissibility of evidence, and we will consider them in their inverse order. The seventh exception was abandoned.

2. The sixth exception is as follows: "(6) The presiding judge erred in permitting the witness J. B. Crouch to exhibit to the jury a picture of the Mexican weevil, and a book containing it, which book was stated to be a bulletin from the department of entomology; it being submitted that the same was inadmissible, the book not having been authenticated, the testimony being hearsay and without the sanction of an oath, and the picture, as an illustration being calculated to have undue weight with the jury." One of the grounds upon which defendant was contesting plaintiff's claim was failure of consideration, and to this end he had offered evidence for the purpose of showing that the fertilizers furnished by the plaintiff were not skillfully prepared as represented, and that they, instead of benefiting the crop, in large measure destroyed it. It appears that while defendant's cotton upon which the fertilizers had been used had good stalk, and was well bolled, the bolls took rot inside and failed to open. Defendant sought to show that the fertilizers caused this. Plaintiff sought to show that this result was due to the operation of the Mexican weevil, which punctured the boll and deposited its eggs therein. The record upon which the exception is based is as follows: "Q. Have you ever seen the weevil himself? A. Yes, sir. Q. Describe it? A. It is a little brown bug, about twice the size of a grain weevil. Q. Have you a picture of the bug? A. Yes, sir. Q. Can you show him by photograph? A. Yes, sir. (Plaintiff offers to exhibit picture of Mexican cotton-boll weevil to the jury. Defendant objects. The objection was overruled. Defendant excepts.) Q. Is this a picture of the weevil? A. Yes, sir. Q. The bug you have seen, does it correspond with that? A. Yes, sir. Q. Show that to the jury. (Witness exhibits cut of Mexican cotton-boll weevil as represented in bulletin of the department of entomology.) A. That is a weevil enlarged. He is not that large." We think the evidence was competent. Whenever it is relevant to give a description of any person, place, or thing, an exact representation thereof, by picture or photograph, is as competent as, and far more reliable than, a mere verbal description. It is a matter of common occurrence to refer to diagrams of localities in evidence, and in the case of State v. Kelley, 46 S.C. 59, 24 S.E. 60, a photograph of the place of the crime was held competent. Of course, there must be evidence, as in this case, showing that the picture is a correct representation of the thing sought to be described. The matter introduced, being a mere picture in aid of verbal description, does not come under a class of books containing a specific treatise on the subject involved, and no such book or treatise was introduced.

3. The fifth exception alleges error "in permitting the witness J. B. Crouch to give his opinion as to the cause of the injury done appellant's cotton, and to answer the question, 'From your experience, and from your investigation of your own crop, what was the cause of the rotting of these bolls, and the damage to them [referring to the cotton in evidence]?' It being submitted that the witness has not been shown to be an expert entitled to give his opinion in evidence, and the question was so framed as to substitute the opinion of the witness for the verdict and usurp the province of the jury." Previous to the question objected to, it had been shown that the witness was an experienced farmer in cotton culture; that his own cotton had been damaged in the same manner as the specimens of cotton from defendant's field exhibited in evidence; that he had made special investigation to ascertain the cause of injury in his own crop, and took steps to inform himself. If this satisfied the trial judge that the witness was competent to give an opinion as an expert on the subject, he committed no error in permitting him to testify as such. But was this strictly expert testimony? We think the evidence more properly falls within the principle announced in Jones v. Fuller, 19 S.C. 70, wherein the court, after citing authorities, said: "From these authorities we deduce the following conclusions: First, that the exception to the general rule that the opinions of witnesses are not competent evidence is not confined to the case of expert testimony; second, that while it is necessary that the witness should first state the facts upon which he bases his opinion, where the facts are such as are capable of being reproduced in language, it is not necessary to do so where the facts are not capable of reproduction in such a way as to bring before the minds of the jury the...