Opinion
6 Div. 419.
March 23, 1918. On Rehearing, April 15, 1918.
Appeal from Circuit Court, Walker County; J. J. Curtis, Judge.
Finch Pennington and Ray Cooner, all of Jasper, for appellant. J. H. Bankhead, Jr., of Jasper, for appellee.
This is an action for damages, instituted by the appellant against the appellee. It is apparent that the material issues were due to be submitted to the jury for decision. It is so stated in the brief for appellant (plaintiff), against whom the jury determined the issues. The subject of the plaintiff's claim is the value of a stock of merchandise and fixtures; and he set forth his claim in several counts to this effect, viz.: That the defendant negligently handled or stored in violation of law large quantities of dynamite and gunpowder in a wooden warehouse, adjacent to plaintiff's storehouse, in a thickly populated part of the town of Jasper, and that its explosion was the proximate cause of the destruction of plaintiff's stock and fixtures. The defendant pleaded the general issue. All of the errors assigned and argued, upwards of 80 in number, relate to the admission or rejection of evidence and to the instruction of the jury. The only practical way to treat the questions made on the appeal seems to be to consider the assignments as classed and argued for appellant. As extracted from the evidence, the defendant's theories were: That the explosion occurred on the plaintiff's premises, not in the warehouse of the defendant; that the proximate cause of the destruction of plaintiff's property was fire, not the explosion of dynamite or powder, even though about 45 pounds of dynamite did explode in defendant's warehouse when it was consumed by fire that also burned plaintiff's storehouse and another building; that the defendant was not negligent either in the storing or handling of explosives in its warehouse, and did not have therein an excessive quantity (over 50 pounds) stored.
Twenty-six of the assignments, argued together in the brief for appellant, bring into question the action of the court in respect of opinion evidence, admitted for the defendant, touching the relative duration of the fire in the defendant's building and the plaintiff's building, and, also, whether the plaintiff's property could have been saved from destruction by fire regardless of the latterly occurring explosion of dynamite in defendant's warehouse. In Seals v. Edmondson, 71 Ala. 509, 515, this court had occasion to consider the admissibility of nonexpert opinions, given by persons with knowledge of the elements involved in the inquiry upon which their opinions were invited, with respect to the spontaneity and rapidity with which cotton will burn when fire is communicated thereto. There the issue seems to have been whether the cotton was ignited by fireworks which, according to the opinions indicated, would have caused an immediate conflagration and a rapid destruction of the cotton, or whether it was ignited through the negligence of the warehouseman and was slowly fired and consumed. This court justified the reception of these opinions from informed, but nonexpert, witnesses. Authority for this conclusion was found in 1 Wharton on Ev. § 510; and, we may add, the succeeding sections (511, 512) from that author might well have been also cited in support of this court's holding. This court there said, through Chief Justice Brickell:
"This is the substance of the evidence, and we understand from the recitals in the bill of exceptions that the witnesses had been engaged in the cotton business; that from their employment or pursuits they had peculiar opportunities of observing cotton, its nature and quality, and its liability to catch fire and burn; that cotton is peculiarly combustible. That it is its nature to take fire quickly, and to burn rapidly is a fact to which any witness having knowledge of it may testify. The fact was involved in the evidence we are considering, and, without stating the fact itself, a witness would probably state the inference involved in it. 1 Whart. Ev. § 510. But how far this may be true is not material, for the witnesses were peculiarly conversant with cotton, and with propriety could express an opinion as to its combustibility, and the difficulty of extinguishing fire burning it, as, after examination, they could, if material, have expressed an opinion as to its marketable grade or classification, and consequent value."
Wharton, at section 510, states the rule to be that:
When "the opinion is the mere shorthand rendering of the facts, then the opinion can be given, subject to cross-examination as to the facts on which it is based."
At sections 511, 512, the author affirms, as the result of evident necessity, that nonexpert opinions of informed witnesses are admissible when the only practicable means to adduce testimony of the fact is to permit the informed witness to describe its effect on his mind or to give his opinion on a subject with which he is specially acquainted, but which cannot be specifically described. The doctrine illustrated in Seals v. Edmondson, supra, and defined by Wharton, was recently recognized and applied in Atl. Coast Line Ry. v. Enterprise Oil Co., 74 So. 232, 235, as well as in Birmingham, etc., R. R. Co. v. Williams, 190 Ala. 53, 57, 58, 66 So. 653. Both of these litigants entered upon the contest of the issues indicated by the subjects of the inquiries involved in the opinions sought as before stated. We are unable to conceive of any other means by which to have brought forward evidence to establish or to refute the propositions asserted, so to speak, by these litigants than through opinions of those sufficiently informed to have an opinion in the premises. It was hence entirely proper to qualify such witnesses to form an opinion, and to develop through their examination the conditions and circumstances upon which the opinion was based. It is hardly necessary to add that where such opinions are admissible no offense is committed against the rule that forbids the substitution of a witness' opinion on the issue of fact the jury is called to decide; nor is offense committed against the rule that forbids the introduction of a witness' opinion upon a matter that the jury, in the exercise of common knowledge and experience, is equally competent to consider and form an opinion or conclusion from the facts disclosed by the evidence.
199 Ala. 57.
The determination of the qualification of a witness to give an expert opinion, or an opinion not expert, but permissible under the rules before reiterated, is a preliminary inquiry, addressed to the trial court; and its decision is submitted to the sound discretion of the trial court under the evidence bearing upon such inquiry. White v. State, 133 Ala. 122, 32 So. 139; L. N. R. R. Co. v. Sandlin, 125 Ala. 585, 28 So. 40; Ins. Co. v. Stephens, 51 Ala. 123; Ala. C. I. Co. v. Heald, 168 Ala. 626, 643, 644, 53 So. 162; L. N. R. R. Co. v. Elliott, 166 Ala. 419, 52 So. 28; Jones on Ev. 369.
While an hypothetical question propounded to an expert on his examination in chief is objectionable if it contains elements of fact not shown in the evidence, yet such a question to an expert witness is not objectionable because it omits to hypothesize every fact in evidence. An examiner of an expert witness may lay, as a basis for the opinion invited, only those facts in evidence which conform to the theory he would establish. Of course, such questions must also incorporate sufficient of the facts in evidence to fairly justify the formation of an opinion on a material issue in the case. The frame and substance of hypothetical questions to expert witnesses is a matter largely committed to the discretion of the trial court. B. R. E. Co. v. Butler, 135 Ala. 388. 395, 33 So. 33; Morrisett v. Wood, 123 Ala. 384, 26 So. 307, 82 Am. St. Rep. 127; Parrish's Case, 139 Ala. 16, 43, 36 So. 1012; Long Distance Co. v. Schmidt, 157 Ala. 391, 47 So. 731; B. R., L. P. Co. v. Saxon, 179 Ala. 136, 59 So. 584; Jones on Ev. §§ 370, 371; 17 Cyc. pp. 244, 250.
The application of these principles to the subjects of the 26 assignments first urged in the brief for appellant and, also, those numbered 9, 10, 11, and 12, requires the conclusion that the court committed no error in those particulars. In this connection, account should be taken of the assignments wherein complaint is made of a denial to plaintiff of the right to adduce opinions of informed witnesses favorable to the plaintiff's contention with respect to the relative duration of the fire in the defendant's warehouse and in the plaintiff's storehouse, and also the probability that the fire in the plaintiff's storehouse could have been controlled by the fire department if an explosion in the defendant's warehouse had not occurred.
The eighth assignment might have possessed merit but for the fact that the witness, in response to subsequent examination by counsel for plaintiff, gave answers covering the subject of the question on the refusal of the court to allow plaintiff to propound which this assignment (8) is based.
On the direct examination of the plaintiff's witness Lee Palmer, the plaintiff's counsel propounded these questions to the witness, both of which are made the subject of the thirteenth assignment:
"It is possible for this warehouse of Cranford's to have burned to the ground, it being something like 10 to 20 feet from the Hamilton building without the Hamilton building catching on fire, in your opinion? What is your best judgment as to that question, suppose you reach the building, say 25 minutes from the time Cranford Mercantile Company's warehouse caught on fire, as to the possibility of having saved Hamilton's building?"
The second question, quoted in the assignment, had already been answered by this witness, on his examination in chief by plaintiff's counsel, as appears from page 63 of the transcript, thus excluding the possibility of error in declining to permit the repetition of the second question would, if answered, have introduced. The assignment of error being joint, both of its subjects must be well taken else it cannot avail. Ashford v. Ashford, 136 Ala. 631, 641, 34 So. 10, 96 Am. St. Rep. 82; Jordan v. Rice, 165 Ala. 650, 51 So. 517.
But aside from this, the first subject of complaint in this assignment made inquiry as to a mere possibility, as the result of circumstances specified in the question. If the question had been permitted and answered with the utmost favor to the plaintiff, it would have afforded nothing more than the statement of the witness that the thing was possible, a condition so uncertain of existence as to be valueless for the purpose of advising the court or jury in the premises. Assignment of error 13 is without merit.
The two questions reproduced in and as the basis for assignment numbered 14 sought testimony from the witness Palmer that was substantially previously given by the witness, as appears from transcript, pages 63, 64. These rulings were not error to the prejudice of the plaintiff.
Assignments 1 to 7, inclusive, and that numbered 79, are predicated of rulings of the court admitting testimony tending to show bias or prejudice on the part of the plaintiff's witnesses Creel and Sparks toward one of the persons who was an officer of, and owning an interest in, the defendant concern. The subjects of these inquiries were proper to be brought to the jury's attention for their bearing upon the matter of the credibility of these witnesses. Rivers' Case, 97 Ala. 72, 76, 12 So. 434.
Assignments of error 18, 19, 20, 21, 24, and also those numbered 28 to 36, inclusive, seek review of rulings on the admission of evidence relating to the value of plaintiff's property that was destroyed. Since the verdict was against the plaintiff's right to recover at all, such rulings cannot be made the basis of reversal on this appeal. Walker v. Smith, T., 199 Ala. 514, 74 So. 451, 453, 454.
However, evidence of statements elsewhere made by the plaintiff tending to reflect upon this testimony as to the value of this property was admissible for its bearing upon the credibility the jury should accord his testimony. The case of Purifoy v. Lamar, 112 Ala. 123, 20 So. 975, erroneously cited on appellant's brief as in 121 Ala. 130, is without relation to the subject of these assignments.
The causes of complaint enumerated in assignments numbered 40, 42, 43, and 44, and 47 to 51, inclusive, are that the court admitted testimony disclosing the condition of the concrete basement walls when the basement was, some months subsequently, cleaned out and after the forces of nature and the elements had had their effect. The relevancy of this character of evidence could not be reasonably questioned. Whether the testimony thus introduced should have credit was a matter for the jury to decide, having regard to the circumstances giving rise to it and affecting its reliability. The evidence itself was manifestly pertinent and was properly admitted.
The matter sought by the question recited in the seventieth assignment of error was given by this witness, thus, of course, avoiding error in that particular.
Whether dynamite had been kept by the defendant in this building two years before the occurrence in question took place was wholly immaterial to the issues; and hence the court committed no error in the particulars noted in assignments of error 71 and 72.
The seventy-fourth assignment is without merit. The reference the witness made to the statement of her daughter but served the purpose of calling the witness' attention to the fire, and did not effect to introduce hearsay matter. The witness Mrs. Covin herself testified, in response to a question by counsel for plaintiff, that she saw the Hamilton building on fire, and that her daughter's statement did not alone afford the reason for her knowledge on that subject.
As has been indicated, one of the more important contested issues of fact was the amount of dynamite, if any, in the warehouse of the defendant on the night of the fire in question. The witness Guttery testified that he was in charge of the hardware department of the defendant in 1915; that when he was there he did the buying of dynamite for defendant. He also testified in support of the defendant's theory that there was little or no dynamite stored in the defendant's warehouse on the occasion under inquiry. During the examination of this witness by the defendant he was permitted, over plaintiff's objection, to state circumstances that the witness said caused him to know about the amount of dynamite in the warehouse and to recite the conversation that took place between Mr. Cranford and himself with regard to the ordering of dynamite shortly before the building in question was destroyed. The circumstance to which the witness testified as impressing upon his mind the fact above indicated was that he met the county wagon on a public road in Walker county coming after dynamite (the defendant being in the habit of furnishing to the country road workers the dynamite used in that service), and that the defendant had no dynamite with which to fill the order. These matters are made the subjects of assignments of error 75 and 76. It has been long since settled in this jurisdiction that as a general rule a witness cannot corroborate himself or fortify his testimony by proving his declaration and acts. Nichols v. Stewart, 20 Ala. 358; James v. State, 115 Ala. 83, 22 So. 565; Jones on Ev. 869, 870; Pope v. State, 168 Ala. 43, 44, 53 So. 292. It is apparent that the application of this rule of evidence to the matters complained of in these assignments of error requires the conclusion that the court erred in those particulars. It is impossible to affirm that the evidence indicated as from the witness Guttery was otherwise than highly prejudicial to a proper solution of the very material issues of fact involved in this feature of the case.
In the brief for appellant assignments of error numbered 77, 78, 81, 82, 83, and 84 are referred to en bloc. There is very little, if any, argument in support of these contentions for error. According to the appellant the benefit of the doubt whether these assignments are sufficiently insisted upon to require their review, a consideration of them leads to the conclusion that they are each without merit. That numbered 77 had reference to the testimony of the defendant's witness Guttery wherein that witness was examined touching the presence of the plaintiff's witness Lovett in the warehouse before the occasion of the destruction of the plaintiff's property. The fact that the plaintiff had shown by Lovett that he was in defendant's warehouse for the purpose of getting cement authorized the defendant to show by its witness Guttery when Lovett was in the warehouse for the purpose of getting cement and when the witness sold cement to the witness Lovett. The subjects of the other assignments noted in this connection have been individually reviewed. Some of them are covered by considerations before stated in this opinion. None of them has merit.
The excerpt from the oral charge of the court, reproduced in assignment numbered 85, was a deliverance in accordance with the doctrine of our cases of Rudder v. Koopman, 116 Ala. 332, 22 So. 601, 37 L.R.A. 489, and S. S. S. I. Co. v. Prosch, 190 Ala. 290, 303, 67 So. 516.
Since plaintiff's entire stock and fixtures were destroyed on the occasion in question, reversible error cannot be predicated of the failure of the instructions referred to in assignments numbered 89, 93, 95, and 96 to discriminate between a partial and total destruction of the property for which the plaintiff claims damages in this action. The paramount issue in the case was the liability of the defendant for the total loss suffered by the plaintiff in the destruction of the plaintiff's property. The criticism in appellant's brief of all of these charges, except that numbered 41, discloses that the fault the appellant conceives adheres in the charges was, under the issues and evidence, one of verbiage only.
Charge 41, given at the instance of the defendant, appears to this court to be a correct statement of the law, under the pleadings and the evidence in this case. Undoubtedly, the burden of proof was upon the plaintiff to trace the destruction of his property to a proximate cause afforded by the negligent act or omission of the defendant.
There was no affirmative error in instructing the jury that "the burden of proof in this case is not on the defendant to acquit itself of negligence." If the plaintiff conceived that this instruction was calculated to mislead the jury to conclude that the plaintiff still bore the burden of proof, notwithstanding the plaintiff had made out a prima facie case, the plaintiff should have requested an explanatory instruction to remove the possible misapprehension indicated.
This charge, numbered 18, was given at the instance of the defendant:
If from all the evidence in the case the jury are unable to say that they are reasonably satisfied what caused the destruction of plaintiff's goods, they must return a verdict in favor of the defendant."
The court might well have refused this instruction because of its incorrect form, in that it required a verdict in favor of the defendant; whereas on the hypothesis stated the correct conclusion was that the jury should not return a verdict in favor of the plaintiff, upon whom the burden of proof rested to establish to the reasonable satisfaction of the jury the cause of action stated in his several counts. This defect of form, while not to be commended, does not justify a reversal of the judgment because thereof. If the charge had avoided this criticism of its form, it was not affected with error.
Charges 22 and 29, given at the request of the defendant, were predicated of theories of nonliability of the defendant which were supported by phases and tendencies of the evidence. There was no prejudicial error in giving either of these instructions, though the latter, 29, was subject to the criticism as to form just stated with reference to charge 18. This instruction, 29, was not phrased as well as it might have been to express the idea the draftsman intended the instruction should convey. Undoubtedly, if an explosion occurring in the basement of the plaintiff's building "caused" the burning of the plaintiff's goods, the plaintiff was not entitled to recover. The alternative to "caused," "proximately contributed," was not an accurate statement of an element of the hypothesis that would justify the conclusion based thereon. For this reason, charge 29, while not affirmatively bad, possessed the quality of misleading the jury. However, after a consideration of the entire oral charge of the court and of the special instructions given to the jury by the court, this court is of opinion that its quality to mislead did not have effect in the case.
For the errors indicated, the judgment is reversed, and the cause is remanded.
Reversed and remanded. All the Justices concur, except MAYFIELD J., not sitting.
On Rehearing.
The order of reversal entered in this case was predicated of the matters assigned for error in assignments of error numbered 75 and 76. In the application for rehearing our attention is called to the fact that in the original brief filed for the appellant these assignments of error were not insisted upon. L. N. R. R. Co. v. Holland, 173 Ala. 675, 693, et seq., 55 So. 1001; Dickens v. Dickens, 174 Ala. 345, 56 So. 809; Rosenau v. Powell, 184 Ala. 396, 63 So. 1020; W. U. Tel. Co. v. Emerson, 14 Ala. App. 247, 69 So. 335. The further fact that the matter of these assignments was, subsequent to the submission, urged in the supplemental brief did not operate to retract the waiver resulting from the failure of the appellant to insist upon these errors in the brief filed when the appeal was submitted. It, therefore, results that the consideration accorded the subject-matter of these assignments was illadvisedly bestowed, and that the decision thereupon was not invited or justified. The rehearing is granted, the judgment of reversal is set aside; and the cause is affirmed.
Affirmed. All the Justices concur.