McCracken v. Farmers' Grain Co. , 215 Ill. App. 551 ( 1919 )

Mr. Presiding Justice Graves

delivered the opinion of the court.

This is an appeal from a judgment in favor of appellees of $700 against appellant, a corporation organized for the purpose of buying, handling, shipping and selling grain, for loss by fire of household effects and provisions, which fire it is charged was begun by the servants of appellant either pursuant to an express order or an established custom, to bum the cobs left after shelling com. It is not denied that the fire was communicated to and caused the destruction of appellee’s goods but it is denied that appellant is responsible for the loss. The jury found that it was responsible for the fire and the loss. It was a question that was properly submitted to the jury and their verdict, based as it was on conflicting testimony, must stand unless it is manifestly contrary to the weight of the evidence. We have read the evidence and the arguments of counsel pro and con on the question and are not willing to hold that the verdict is contrary to the weight of the evidence.

One W. F. Cook was called as a witness by appellees and testified that a long time before the fire that destroyed appellees’ property he told a Mr. Moody who was then the manager of appellant that several property owners had complained to the village board that their property was being endangered by the burning of cobs by appellant and that he should be more careful; that the substance of the statement was repeated to Mr. Moody by the witness more than once. He also testified that Moody said to him that he did not think there was any danger about it. It developed on the examination that this witness was the mayor of the city at the time he talked to Moody about burning the cobs, but that fact has no significance on the questions here involved because his evidence was offered solely for the purpose of showing actual knowledge by Moody, the manager of appellant, of the custom of the employees of burning the cobs there and the danger arising therefrom as bearing on the question whether appellant was negligent in permitting the same to be so burned. The evidence was competent under the authority of City of Chicago v. Jarvis, 226 Ill. 614.

Appellees called one Davis as a witness and attempted to prove by him that at another time the elevator that burned down at the time appellees’ property was burned had caught on fire from the burning of cobs unler circumstances and conditions substantially the same as those existing at the time appellees ’ goods were destroyed, but the witness did not so testify. Appellant insists that reversible error was committed by the attempt of appellees to make the proof. The proof sought for, if it had been obtained, would have been competent for the same reasons as the testimony of the witness Grood, i. e., as notice of the danger of burning cobs.near the elevator. The attempt to prove a competent fact in a competent way is not error.

Appellant insists that the basis of estimating the damages sustained by appellees was wrong because the witness gave her estimate on what it would .have cost her to buy such goods; and that the real measure of damages was to be determined from what a dealer in secondhand goods would have paid for the goods destroyed. The measure of damages was the fair cash market value of the goods, what they would have brought on the market, not at wholesale or for resale, or at forced sale, but on the market where such goods are bought and sold.

The proof of the value of the property destroyed was made by Mrs. Minnie McCracken. She had purchased some secondhand goods and knew in a general way the values of household goods and provisions such as those destroyed. She gave 'her opinion as to the fair ¡cash market value of such goods. Her evidence was competent and it was for the jury to determine what weight should be given to it. The total of her estimates of values was about $1,100 or $1,200. The jury fixed the damages at $700 and there is no complaint that the amount is too large.

Some objections have been argued to the action of the court in giving and modifying and refusing instructions, but such objections are hypercritical and without force.

Finding no reversible error in the record the judgment is affirmed.

Judgment affirmed.