De Bardeleben v. Sellers , 17 Ala. App. 247 ( 1919 )

Appellee sued appellant to recover damages for destruction and loss of 17 bales of cotton. The loss or destruction is alleged to have been caused by the burning of the cotton; allegations being that the defendant willfully, intentionally, or negligently burned or destroyed cotton of plaintiff to her damage in the sum of $1,000.

The complaint consisted of seven counts, each claiming damage for the loss of the same cotton, each varying slightly in form and substance from the others. Some charge the burning on the part of defendant to have been willfully and intentionally, and some that it was done negligently. The defendant demurred to each of the counts. Demurrer was sustained as to counts 3 and 7, and overruled as to counts 1, 2, 4, 5, and 6. The trial was had on pleas of the general issue to each of the counts, to which the demurrer was overruled, and resulted in verdict and judgment for the plaintiff, from which judgment defendant prosecutes this appeal. There was no error in overruling the demurrer to any one of the counts. Each sufficiently stated a cause of action and was not subject to any ground of demurrer interposed thereto. Count 2, against which most of the argument of counsel is directed, therefore is typical of all the others, and is in words and figures as follows:

"The plaintiff further claims of the defendant the other and further sum of $1,000 as damages for willfully and intentionally burning and destroying 17 bales of cotton of the value of $1,000, the property of the plaintiff, on, to wit, the 8th day of March, 1915."

It is insisted by appellant that this count fails to show the relation existing between the plaintiff and defendant, and fails to aver any facts which show a duty owing by the defendant to the plaintiff. The complete answer to this contention is that every man owes every other man (including women) the duty not to burn or destroy the cotton or valuable property of the latter and especially not to burn it willfully or intentionally, as the defendant is alleged to have destroyed the property of the plaintiff. The authority cited by appellant in support of his contentions have no application to counts like the one in question, where duty, breached is universal between all men. If the facts stated in any one of these counts be true, the plaintiff is entitled to recover. If there be any special defense other than the denial of facts alleged, such defense could be set up as special pleas, which was not attempted in this case.

What is said above as to count 2 is appropriate to each of the other counts as to which the demurrer was overruled.

There are almost innumerable assignments of error, most of which go to rulings as to the admission of evidence. It would consume too much space in the opinion and would serve no good purpose to discuss each objection and exception separate. We therefore group them and discuss them as groups, which is done in brief of counsel. There are two fundamental principles underlying the rules of evidence in cases like this which render much of the evidence admissible which is not admissible in ordinary suits of negligence. One of these rules is that there was proof of a conspiracy between the defendant and other parties to burn certain buildings, which, if consummated, would necessarily result in the burning or destruction of plaintiff's cotton. The other was that there was evidence tending to show a fraudulent scheme on the part of defendant and one of his coconspirators to defraud the insurance company which had insured the property which was burned. While there was no evidence to show a direct conspiracy to injure or defraud this plaintiff, the evidence indisputably showed that, if the conspiracy and fraud was consummated, it would proximately, if not necessarily, result in the burning or destruction of plaintiff's property. The theory of plaintiff was, and there was evidence to support it, that the defendant and one Jowers conspired to defraud the insurance company by burning certain property insured by the insurance company, and if this conspiracy and fraud was consummated it would result in the destruction of plaintiff's cotton, and would have, of course, rendered each of the conspirators liable to her in damages therefor. It is a well-settled principle of law that the rules of evidence as to the admissibility of testimony is much more liberal and not so restricted as to prove conspiracies and frauds. This, for the reason that conspiracies and fraud are easily conceived and carried out in secret, must of necessity be proved by circumstantial evidence; hence the rules must be more liberal in such cases. There was no error in allowing proof that wells usually contain more water in February and during the spring months than in other seasons; that this was not the dry season of the year. Considering without deciding that this was error, it was without possible injury to the defendant. Moreover, this was a matter of common knowledge, and proof of common knowledge is without injury, though it be unnecessary to offer such proof.

There was likewise no error in the admission of parol proof as to the insurance on the buildings destroyed. Strict rulings as to primary and secondary evidence is not enforced where the evidence offered is collateral merely, and when not directly or intimately connected with the issues on trial which was true as to the insurance policies and contracts on this trial. 3 Mayfield's Digest, p. 462, and authorities there cited. If there was evidence tending to show that one Jowers was a coconspirator with the defendant, evidence to show transaction between the defendant and Jowers and their relation and dealings at and near the time of the fire was admissible as circumstances at least in corroboration of the direct testimony tending to show the conspiracy between the two. For this reason there was no error in permitting the witness Smoot to testify as he did in the case, which testimony related to transactions as to which the defendant and Jowers had some connection and relations, and we are not prepared to say it was wholly irrelevant and inadmissible. Harmon v. State, 166 Ala. 28,52 So. 348; Fergusson v. State, 149 Ala. 21, 43 So. 16. For the same reason it was competent to prove that Jowers was indicted by the grand jury of Elmore county for burning the buildings in question. It is also permissible to prove the financial condition of the conspirators at or about the time of the fire.

It is well-settled law that each conspirator is answerable for the acts of each and all of his coconspirators if the acts be in furtherance of the conspiracy or the matter direct and proximate result of such conspiracy.

There was no error in allowing the witness Tate to identify a trunk and its contents, the property of one of the witnesses in the case, who was also one of the coconspirators; in other words, there was evidence that this witness was hired by the other two conspirators in furtherance of the conspiracy, Such evidence was admissible to corroborate the testimony of this witness whose testimony was sought to be impeached by the defendant.

There was no error in allowing proof as to the value of the defendant's dwelling and the contents thereof before at and near the time of the burning, nor in the admission of evidence that some of the furniture or contents had been removed shortly before the fire. These were circumstances to be considered by the jury in corroboration of other testimony as to conspiracy.

It was competent to show that the defendant had conveyed his house shortly before it was burned, and that the conveyance showed fictitious dates both as to the time of execution and acknowledgment.

There was no error in declining to exclude the remarks of counsel or the trial judge as to the amount of insurance or circumstances in connection with the insurance and the fire. There was evidence and inferences therefrom to justify the remarks.

We find no error in the refusal of any of the requested charges. There was ample evidence to carry the case to the jury on each of the counts as to which the court declined to give the affirmative charge in favor of the defendant. Charge D was properly refused because of misleading tendencies. This charge was as follows:

"The court charges the jury that, if the evidence fails to reasonably satisfy them that the cotton was willfully or intentionally or negligently burned by the defendant, they cannot find for the plaintiff.

"Refused. A.B. Foster, Judge."

The charge was calculated to mislead the jury in that it was susceptible of the construction that the defendant must have personally burned or destroyed the property of the plaintiff in order to authorize the jury to find a verdict for the plaintiff. If the jury should have found the conspiracy to burn property, and the defendant was one of the conspirators, then he would be liable if one of his coconspirators burned it in furtherance and in consummation of the conspiracy.

Moreover, the charge is susceptible of the construction that before the jury could find for the plaintiff they must be reasonably satisfied from the evidence that the defendant willfully, intentionally, and negligently burned or destroyed property of the plaintiff; in other words, if the jury had reasonable doubt that the defendant destroyed the property either willfully, intentionally, or negligently, they must find for the defendant. This is not the law. If the jury was reasonably satisfied that the defendant willfully destroyed the property of the plaintiff, they should return a verdict for the plaintiff, although they were not reasonably satisfied that he negligently destroyed it.

We are not willing to hold that the court should have granted the defendant's motion for a new trial. As before stated, there was evidence sufficient to support the verdict of the jury, and we are not willing to disturb their findings. The mere fact that one of the jurors, while serving on the jury, boarded with one of the plaintiff's witnesses, who was active in behalf of the plaintiff during the trial, was not sufficient grounds for setting aside the verdict. There was nothing to connect the plaintiff with the conversations between the juror and the witness or with the fact that the juror boarded with the witness. In fact, there was nothing to show that the conversation between the two probably influenced the verdict of the jury.

Finding no error in the record, it results that the judgment will be affirmed.

Affirmed.