Newmark v. Liverpool & London Fire & Life Insurance , 30 Mo. 160 ( 1860 )

Napton, Judge,

delivered the opinion of the court.

We consider the third instruction, which was given in this cáse for the defendant, as objectionable. The rule in relation to stolen goods had been sufficiently explained to the jury in tlie first instruction given for the plaintiff, and the restriction of the liability of the company for thefts to the precise period when the fire was extinguished is not in accordance with the principle upon which such liability is based. That principle is alluded to in the instruction first given on this subject; the precise time when a theft occurs is not important, if it be occasioned directly by the fire. Such an instruction may have a tendency to mislead, especially as there was no evidence of any thefts having been committed before the fire happened or after it was extinguished.

The propriety of the fourth instruction given for the defendants is not material, since the jury found for the plaintiff upon the facts submitted to the jury on that instruction. But as the answer did not set up any forfeiture of the policy by reason of false or fraudulent affidavits in the preliminary proofs, the instruction was upon an issue not made by the pleadings and calculated to prejudice the plaintiff’s claim.

The fifth instruction given for the defendants seems to have been designed to convey a proper caution to the jury in relation to the character and effect of the plaintiff’s books of accounts as evidence. The phraseology of the instruction is perhaps awkward, if not ambiguous, and is objected to as leaving to the jury the question of the competency of this . part of the plaintiff’s evidence. If liable to this interpretation, the instruction would undoubtedly be objectionable; but we suppose it was simply intended to apprise the jury that the books were not evidence of themselves, as they have been and are considered in some courts, but that they should be regarded as entitled to no further weight than the proof of the witnesses who were examined in relation to their accuracy would justify.

The sixth instruction was, in our opinion, correct. The affidavits and accounts of loss, constituting the preliminary proofs, are evidence that the plaintiff has complied with the requirements of the policy in this respect, but they are no evidence in his favor upon the amount of loss. The affidavit required to be appended to every petition might as well be regarded as proof of the truth of its allegations. The contrary decision in Moore v. Pennsylvania Insurance Co., 29 Maine, 97, seems to have no support in principle or upon .authority.

Upon the trial of this case several witnesses were allowed to give their opinions of the amount of goods in value which the plaintiff’s store would contain, and especially the value of the goods which could have been packed on the shelves destroyed by the fire. The witnesses were engaged in the same business followed by the plaintiff.

The general rule is that persons of skill in any particular science or art may give their opinions, “ when the subject matter is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance; in other words, when it so far partakes of the nature of a science or art as to require a course of previous habit or study in order to attain a knowledge of it.” (Taylor on Evidence, vol. 2, § 1038.) The rule is evidently confined to cases where, from the nature of the subject, facts disconnected from such opinions can not be so presented to the jury as to enable them to pass upon the question with the requisite knowledge and judgment. There are some exceptions to this rule not necessary to be noticed in connection with the point taken here.

There can be no doubt that the evidence given in this case was of a very loose and unsatisfactory character. The two witnesses first called differed by ten thousand dollars as to the amormt of goods which could be packed in the store; nor did either of them have any knowledge of the store and its contents before the fire. Their opinions seem to have been formed upon a mere inspection of the store after the fire, and an examination of the general character of the stock left. In the case of Howard v. The City Fire Ins. Co., 4 Denio, 507, the witness was a clerk in a store immediately adjoining the one burnt, and proved the dimensions of the two stores to be the same. He also proved that previous to the fire an inventory had been taken of the goods in the store where he acted as clerk, and he was allowed, from the appearance of the two stores as observed by him, to give his opinion of the relative quantity of goods in the two stores. But in the present case, the opinions of the witnesses seem to have been formed without any peculiar advantages of arriving at correct conclusions. If they had confined their statements to facts, it is not seen that the jury could not have drawn as correct conclusions as the witnesses. Their opinions appear to be mere random conjectures.

The other judges concurring, the judgment is reversed and the case remanded.