Sun Insurance Office v. Western Woolen-mill Co. , 72 Kan. 41 ( 1905 )

The opinion of the court was delivered by

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 Pac. 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. See, also, Sparks v. Bank, 68 Kan. 148, 74 Pac. 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 the effect that where, as in this case, there is some evidence to warrant the submission of the case to the jury the demurrer should be overruled. (Merket v. Smith, 33 Kan. 66, 5 Pac. 394; K. C. Ft. S. & G. Rld. Co. v. Cravens, 43 Kan. 650, 23 Pac. 1044; Rogers v. Hodgson, 46 Kan. 276, 26 Pac. 732.)

The next five errors complained of, including the ninth, can be disposed of together, Defendant offered to prove by the deposition of an expert witness, W. T. McClement, who qualified as an expert chemist, what is “fire,” “ignition,” and its physical characteristics; what is meant by the “ignition point”; that in his testimony he used the word “burn” in its ordinary significance; the meaning in chemistry of the term “slow combustion”; the relation between “fire” and “flame”; and some other scientific terms in explanation of the above. While much of this evidence might have been interesting, it would throw little, if any, light upon the one question at issue — whether in fact there was a fire in the wool as claimed, and there was no error in refusing to admit the testimony. Most of it related to the characteristics of fire, a subject within the common knowledge and experience of the jury, and for that reason it did not come within the rule as to expert testimony. (See authorities cited supra.)

The tenth error assigned has more merit. The same witness was not permitted to testify that the natural grease in wool is not identical with the fat of the animal, and that it is an exudation from the skin analogous to the oil in the human scalp. Defendant was endeavoring to prove that wool will not support spontaneous combustion; and, unless it is clear that the nature of grease in wool is a subject of which the jury might be said to know from common knowledge and. experience, and of which courts take judicial notice, it would have been proper for defendant to prove it by expert testimony for the purpose of showing that “wool in the grease” is different from greasy wool, and that the natural grease in wool is not a thing which might add to or increase the combustibility of the wool in question. But, generally speaking, the nature of wool is well and commonly known, and for that reason it was not prejudicial error at least to exclude the scientific description of its characteristics.

The next error we shall notice is set out as follows:

“The court erred in refusing, upon its own motion, and without objection from the plaintiff, to permit the defendant to read to the jury, as original evidence, certain portions of the cross-examination and recross-examination of the witness W. T. McClement, the reading of which was waived as cross-examination by the plaintiff, which said recross-examination embodies the testimony of the witness that the results of spontaneous combustion and decomposition are similar; that fire involves the production of light or flame or luminosity; that wool does not give off a gas which can burn invisibly; and that a sufficient amount of heat could be produced without fire to destroy wool fiber.”

Without deciding whether the action of the court was error, it is sufficient to say that defendant was not prejudiced by the exclusion of this testimony. The court will take judicial notice of all things sought to be proved here. “Judicial notice takes the place of proof, and is of equal force.” (State v. Main, 69 Conn. 123, 136, 37 Atl. 80, 36 L. R. A. 623, 61 Am. St. Rep. 30.) In Poor v. Watson, 92 Mo. App. 89, it was said:

“Judicial notice should be taken of things which are of general knowledge among people of ordinary information. They will take judicial notice of recognized scientific facts and principles without the necessity of evidence and may do so of their own motion.”

(See, also, LaRue v. Insurance Co., 68 Kan. 539, 75 Pac. 494.)

What has been said in reference to the testimony offered in the deposition of the witness MeClement applies also to the errors complained of as to the exclusion of parts of the deposition of the expert chemist, Edward Gudeman.. And there was no error in permitting Professor Bailey and Professor Dains, in rebuttal, to testify that in their opinions spontaneous combustion can occur in a mass of wool by the application of water. Defendant offered expert opinions to show that spontaneous combustion cannot occur in wool, and this clearly was rebuttal.

An examination of the numerous other errors complained of in reference to testimony discloses nothing else worthy of special mention.

The next error relied upon is the refusal of the court to instruct the jury to return a verdict for the defendant. As was said in reference to the overruling of the demurrer to the evidence, there was some testimony to go to the jury, and if there was any, of course, under the oft-repeated rule, this court cannot reverse the judgment of the lower court, nor will it weigh the testimony of the parties to determine the preponderance. (Cornell University v. Parkinson, 59 Kan. 365, 379, 53 Pac. 138; K. P. Rly. Co. v. Kunkel, 17 Kan. 145; Cheney v. Hovey, 56 Kan. 637, 44 Pac. 605; Ketner v. Rizer, 34 Kan. 603, 9 Pac. 208; Railroad Co. v. Matthews, 58 Kan. 447, 49 Pac. 602.)

That there was some evidence to support the verdict we cite the following facts disclosed by the record: The witness McAfee testified that the heat was so great when the doors were burst open that no one could go inside for several hours; that he saw smoke, come out of the door when it was opened; that the wool was “charred,” and showed a charcoal on part of the wool, which was decomposed. He testified that the fiber of the wool was damaged; that the wool itself was so hot it could not be handled by hand; that he was obliged to send for pitchforks, so that the men could turn the wool and scatter it about; that he put his hand in the mass of wool and the heat was so great he could not leave it there; that the woolen twine with which the fleeces were tied was “burned,” and broke when the men handled the bundles; that he smelled the odor of burnt wool. He testified that the wool remaining was so damaged by the heat that iv'. .was practically of little value; that wool will not burn with a flame except when a flame is held against it; and that the instant the flame is removed it will go out. E. H. S. Bailey, professor of chemistry at the state university, testified that in his opinion spontaneous combustion can occur in unwashed wool by the application of water. After an examination of a sample of wool taken from that in controversy, he testified that in his opinion its condition could have been caused by fire. F. B. Dains, professor of chemistry in Washburn College, testified substantially the same.

Error is alleged also because the court refused the following instruction: “You are instructed that wool cannot set fire to itself.” The court has been favored in the briefs with the results of much scientific and literary research by counsel on both sides in support of their respective theories as to the possibility of spontaneous combustion of “wool in the grease” when subjected to water, and history, ancient and modern, on the subject and nature of fire, supplemented by text-books on organic chemistry and references to all standar-d authorities upon definitions. To quote from one brief:

“Fire and human culture date together. It was a factor in the religious observances of the ancient Egyptians, Greeks, Latins, and Persians, and on the American continent among the Natchez, Mexicans, and Peruvians. All of this evidences man’s familiarity with fire, and the fact that its phenomena are nothing new to the human race.”

Like many other questions of this character, there appears to be great diversity of scientific opinion as to whether spontaneous combustion can occur in wool, or in “wool in the grease.” From all the authorities we have examined it can be said, at least, that the probability of spontaneous combustion in wool is very slight. The books of scientific character being so much at variance, it cannot be said that the one view or the other must be taken by the courts; and, as the instruction asked went to the whole merits of the controversy, it was not error to refuse it. Defendant offered the following instruction:

“The policy in suit is a contract of indemnity against loss or damage directly caused by fire. The word ‘fire’ is used in the policy in its ordinary and usual meaning, and means visible heat or light. No degree of heat short of ignition producing an actual burning is covered by the policy, and damage to the wool caused by heat that did not reach an actual burning is not covered by the policy.”

This was refused, and the court of its own motion gave the following:

“The word ‘fire’ is so common and so well understood that I deem it unnecessary to give you any definition of what constitutes fire. 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.”

Error is alleged in refusing the first and in giving the second, and we shall consider the instructions together. The objection to the first is that it attempts to define “fire,” which, as the court below said in the instruction given, is “so common and so well understood” as to require no definition. Besides, the giving of the other instruction, in which the jury were expressly told that “there must be in fact the presence of fire,” was sufficient.

The other errors alleged, such as denying the motion for a new trial, etc., are disposed of in what has been said.

Plaintiff in error argues that as a matter of law no degree of heat short of ignition or actual fire will permit a recovery in this case, and insists that as a matter of fact, disclosed by all the evidence, there was no fire in plaintiff’s wool to cause the damage it sustained, but that the damage was caused by the process of decomposition, decay, or rotting, and that the judgment upon the verdict is unjust and should be reversed. It is true there must be fire causing the damage to plaintiff’s wool before plaintiff would be entitled to recover, but in our view there was some evidence to warrant the finding of the jury; and the court, while refusing to instruct that no degree of heat short of ignition would permit of a recovery under the policy, did instruct that if the damage to the wool was occasioned by its being heated without fire plaintiff could not recover, and that if, on the other hand, spontaneous combustion took place, producing or resulting in fire, and the damage to the wool was caused in that manner, then plaintiff would be entitled to recover. The trial court took the view that fire is such a common thing as to require no definition, and in this we think he was right. The instructions presented the one issue fairly,- and, there being some evidence to support the contention of plaintiff, it follows that, while the verdict might not be ours if we were trying the issue of fact upon the same evidence, we cannot, upon consideration of the weight and preponderance of the testimony, disturb the verdict and judgment.

The judgment is affirmed.

Johnston, C. J., Greene, Burch, Mason, Graves, JJ., concurring.