Willis v. Horticultural Fire Relief of Oregon

• Decision Date: 19 October 1915
• Citation: 152 P. 259,77 Or. 621
• Parties: WILLIS ET AL. v. HORTICULTURAL FIRE RELIEF OF OREGON.
• Court: Oregon Supreme Court

152 P. 259

77 Or. 621

WILLIS ET AL. v. HORTICULTURAL FIRE RELIEF OF OREGON.

Supreme Court of Oregon

October 19, 1915

Department 1.

Appeal from Circuit Court, Lake County; Henry L. Benson, Judge.

Action by Richard Willis and E. R. Willis, partners doing business as the Willis Furniture Company, against the Horticultural Fire Relief of Oregon, a corporation. From a judgment for plaintiffs, defendant appeals. Affirmed.

This is an action by Richard Willis and E. R. Willis, partners as Willis Furniture Company, against the Horticultural Fire Relief of Oregon, to recover upon two insurance policies $6,000 for the loss of and the damage to a stock of furniture, etc., by fire which occurred at Lakeview, Or February 5, 1912. The complaint is in the usual form, and alleges that all the insured property was totally destroyed except five pieces of furniture of the value of $70, thereby entailing a loss of $7,200. As special defenses the answer charges that the property involved was purposely burned by the plaintiffs, and that they made willfully false sworn statements in their proof of loss. The reply controverted the allegations of new matter in the answer, and the cause, being tried, resulted in a judgment for the plaintiffs in the sum stated, and the defendant appeals.

John Bayne, of Salem (L. F. Conn, of Lakeview, on the brief), for appellant. W. Lair Thompson, of Lakeview, and J. C. Rutenic of Klamath Falls (J. S. Kent, of Klamath Falls, on the brief), for respondents.

MOORE C.J.

The plaintiff E. R. Willis testified that the plaintiff Richard Willis had some experience in the furniture business before forming the present partnership, but that no purchases of stock had been made by him prior to their engaging in business at Lakeview, Or., and he was asked:

"At the time of your taking this inventory, December 1911, did you note his ability to give prices or cost of articles?"

An objection to this inquiry having been overruled and an exception allowed, the witness answered:

"Well, he did not have any cost marks on the articles, but always stated that it cost about this, and about that, and he never knew how many of an article he had, or how much an article cost exactly, and that is the reason why I was anxious."

It is argued that, since Richard Willis subscribed his name and made affidavit to the proof of loss, wherein untrue statements were made as to the total destruction of the entire property when some articles of furniture were but slightly damaged, in which writing he willfully misrepresented the value of the stock burned, the question so objected to, when permitted to be answered, over exception, tended to show that, because he had no knowledge gained by observation, and for that reason was unable correctly to give the number of articles of furniture destroyed or to state the price thereof, his statement, though untrue, was, by reason of his inexperience, not willfully false. It will be noted that the answer which should have been given by E. R. Willis was "Yes" or "No." In overruling the objection to the inquiry, the court could not reasonably have anticipated that the reply would not have been responsive to the question. Under such circumstances, after the answer had been given, defendant's counsel should have moved to strike it out, but, not having done so, the error assigned is unavailing.

Any witness may possibly make a mistake in undertaking in court to detail the facts which he has perceived, but if he discovers the error or his attention is called to it before the trial is closed, and he means to be honest, he ought to correct the fault, and should be given an opportunity carefully to explain how it occurred, thus leaving the jury to determine whether or not the false statement was knowingly made. Another person who knows how such mistake arose should be permitted to account for it, if the witness who committed the error cannot be recalled. The court adopted this course, allowing the testimony of another witness to be given, and in doing so no error was committed.

At a former hearing of this cause in the lower court Richard Willis gave testimony which was transcribed, and, in the absence of that witness, received in evidence at the trial herein. If a motion had been made by defendant's counsel to exclude such part of that evidence as related to the values of goods destroyed by fire, on the ground that the witness was inexperienced, and by reason thereof unable to express an opinion on the subject, and had the supposed motion been denied, an exception taken and properly incorporated in the bill, the action of the court in that particular could have been reviewed. Since such supposed course of procedure was not pursued, it is unnecessary to consider the question discussed in the brief as to whether or not the senior partner was qualified by experience or observation to give an estimate of the worth of such goods.

From the transcript of Richard Willis' testimony it appears that on redirect examination, in referring to the insurance adjuster, the plaintiffs' counsel inquired:

"At the time you gave this proof of loss and these affidavits, the making of these affidavits, Mr. Willis, or at any time, when the question of the number of bedsteads destroyed by fire come up, did Mr. Ratcliffe suggest to you that you could aid your memory by looking over the ruins and counting the iron bedsteads?"

An objection to this question was overruled and an exception allowed, whereupon the witness replied: "He did not, sir." It is contended by the defendant's counsel that it was not incumbent upon the insurance adjuster to aid the insured in preparing their evidence, and, this being so, the answer of the witness tends to impose upon the defendant's representative blame for the false statement in the proof of loss. Prior to the giving of the answer last objected to, defendant's counsel, on cross-examining this witness, asked:

"Is it not a fact, Mr. Willis, at the time you gave this list, your attention was called to the fact that you had enumerated 81 iron bedsteads?"

He replied: "No, sir." From this question it would seem to be implied that, as Mr. Ratcliffe was present when the list of property burned was made out, he had suggested to Richard Willis a proper manner of determining the number of bedsteads destroyed by the fire. While it was not the duty of the adjuster, who was the defendant's agent, to aid the plaintiffs in making out their proof of loss, it was proper to permit the witness on redirect examination to testify as indicated, in order to refute any inference that might have been created in the minds of the jurors by the question asked on cross-examination.

The transcript referred to further shows that in alluding to a duplicate invoice of a stock of goods belonging to a decedent's estate Richard Willis was asked by his counsel:

"Was your attention called by the insurance adjuster to the existence of this copy?"

An objection to the inquiry having been overruled and an exception allowed, the witness answered:

"There was a copy. It may possibly been one that the administrator used when Mr. Colvin died. He had a few accounts, but I bought them out, and in a book in the drawer, which I quite frequently come across, and it made plain there was an inventory of the stock, but it might have been as to the administration after Mr. Colvin's death. They made an inventory, and that was in the drawer there, or one of them."

It will be seen that this reply was not responsive to the question, and, as no motion was made to strike out the answer, the alleged error is not properly raised.

William Wallace, as plaintiffs' witness, testified that for about three years prior to the trial herein he had theretofore been a furniture dealer at Lakeview, Or., and that during the time the plaintiffs were engaged in such business in that city he had called at their store several times, the last occasion being about a week before the fire, and, referring to the stock then seen in the building, he said: "I would have taken it at a lump at $6,000." It further appears from the testimony of this witness that he sold his furniture business to a Mr. Chandler, who transferred it to a Mr Colvin, and, the latter having died, an administrator of the decedent's estate sold the stock to the plaintiffs. Mr. Wallace was then asked: "Now, what was the value of the goods you sold to Chandler?" Over objection and exception, he replied: "It was...