Davis v. Bouton Motor Co. ( 1909 )

Woodward, J.:

Upon a prior appeal in this case we held that there was evidence entitling the plaintiff to go to the jury on. the question of defendant’s negligence in setting fire to certain hotel buildings in one of the towns of Nassau county (Davis v. Bouton Motor Co., 126 App. Div. 340), and the evidence in the present trial is certainly as strong as upon the former1 appeal. Various matters are urged upon this appeal which do not appear to have been suggested at the trial, and which do not, therefore, call for consideration here. Practically- the only question which may be considered here relates to the evidence in support of the plaintiff’s claim for damages.

It will be recalled that defendant’s chauffeur placed his automobile in one of the sheds of one Krug, who conducted a hotel at Mineóla, Nassau county, for the purpose of making repairs, and that while at work on the machine an explosion occurred, which set fire to the building, and the flames were conveyed to other buildings, resulting in the main hotel building being scorched to some extent. The contents of the hotel appear to have been carried out and lost or destroyed, as is usual in such cases. The Krugs, immediately after the fire, made up a list of the personal property claimed to have been lost or destroyed in the fire, and upon tins list the insurance company adjusted the .losses, deducting a few hundred dollars. The Krugs then made and executed and delivered written assignments of their claims to the several insurance companies, subrogating them to all their rights in the premises, and the insurance companies, in turn, assigned these claims to the plaintiff, who brought this action to recover the damages growing out of the fire. Upon the trial the plaintiff offered in evidence the list of the personal property prepared by the Krugs as an exhibit, Krugbeing upon the stand and identifying the list, and testifying as to the values. The offer of this list of articles was objected to as being incompetent. It appears to be conceded by the appellant that the list was competent for the purpose of showing the articles lost or destroyed, but it is urged that it was not competent for the purpose of proving the,values set opposite each article. But if it was competent for any purpose, the general objection of incompetency does not present reversible error; if the party objecting to the evidence desired to limit, this should have been pointed out in the objection. The witness subsequently testified that the articles were of the fair market value which he' had placed opposite the same, and his wife testified as to some of the articles in the list as being of the fair and reasonable value which was placed upon them, it appearing that the list was prepared jointly by Mr. and Mrs. Krug. The plaintiff, as the assignee of the insurance companies, demanded judgment for the sum of $4,550.60, the aggregate amount of the payments to the Krugs, and the jury gave a verdict for $3,500, and under the circumstances we are of the opinion that the defendant has no substantial reason to complain of anything occurring upon the trial of this action. Conceding that the evidence as to values of the personal property was open to some objection, the entire claim for personal property was $1,269.30. There is no dispute'as to the amount of the loss on the real property. This was $3,281.30. If we subtract this from the amount of the verdict we find that there was an allowance for the personal property of but $218.70 on a claim aggregating $1,269.30, and it is not disputed that the list offered was competént to show the number of articles lost, and on which the insurance companies had paid the whole amount as claimed in this action. Under such circumstances to reverse a judgment for a mere technical error, going only to the question of damages- in relation to chis personal property, would be to pervert rather than promote!the ends of justice.

The judgment and order appealed from should be affirmed, with costs.

Present:—Woodward, Jenks, Gaynor, Rich, and Miller, JJ.

Judgment and order unanimously affirmed, with costs.