Welch v. Insurance Co. , 1883 W. Va. LEXIS 29 ( 1883 )

GrREEN, JuDSB :

In this case there was a demurrer to the declaration. I presume, however, it was put in by the defendant’s counsel, only as a matter of precaution, that no possible injury should be sustained by their client through their fault. They have in their arguments in this Court pointed out no errors or faults in this declaration. I have examined it and find it very full; but, so far as I can perceive, there is no error in it. It appears to be well drawn and to contain in it every allegation, which if proven would entitle the plaintiff: to recover what he demands. The municipal court therefore did not err in oveiT-uling this demurrer.

The plaintiff in error asks this Court to set aside the verdict of the jury, because under no view of the evidence, which can be taken, could a verdict for the plaiutiff of only three hundred and ten dollars be reached. It is insisted, that it is clear upon the evidence, that the plaintiff: is entitled to a verdict and judgment of several thousand dollars, or he is entitled to no verdict or judgment át all in his favor. It is admitted, that if the jury had found a verdict for the defendant, and the municipal court had rendered a judgment accordingly, this court on well established principles, could not have set this verdict and judgment aside and awarded a new trial, for there is clearly an abundance of evidence offered by the defendant, to which if the j ury gave full credence and deduced from it facts, which they could have legitimately drawn from it without subjecting themselves to the charge of prejudice or corruption, they would have found a verdict for the defendant. On the other hand, if the jury had found a verdict for the full amount claimed by the plaintiff', and fhe municipal Court had rendered a judgment accordingly, it must be admitted, that on well established principles such verdict and judgment would not be set aside by this Court; for the plaintiff certainly offered evidence, which, if full credence was attached to it by the jury, would have justified them in finding a verdict for the full amount claimed by the plaintiff. The case was eminently one, in which the verdict depended on the credibility of the witnesses and in which the evidence was to a very large extent contradictory; and of course the court could not properly in such a case set aside the verdict of the jury approved by the court below as either unsupported by [evidence or as contrary to the great. weight of the testimony, had this verdict been for the defendant. This being the case we cannot set aside a verdict and judgment for the plaintiff for three hundred and ten dollars upon his application; for though we may be satisfied that no view of the evidence would sustain a verdict ot that amount, yet we cannot be satisfied that the plaintiff’ is injured by this verdict and judgment; for it is admitted that we cannot say he would have been clearly injured by a verdict and judgment against him. Tor all we can say he may have got by this verdict and judgment three hundred and ten dollars more than he is entitled to; and we must be satisfied that an error has been committed to liis prejudice, before we can reverse a decision of the lower court at his instance. Tt is not alone sufficient, that we should be satisfied, that the judgment is erroneous. If the other side also had taken an appeal or had assigned counter errors, then it may be a different rule might prevail. Our conclusion is, that the judgment of the court below cannot be reversed in this case, unless the court during the progress of the trial fell into errors errors, whereby the plaintiff was prejudiced.

The first enquiry is: Did the court below permit the defendant to the prejudice of the plaintiff to occupy too wide a field in the introduction of evidence, and by so doing confuse the jury and permit it to be unjustly prejudiced against the plaintiff? The complaint is, .that on the cross-examination of James Aiken the defendant required the production of his books showing all the wool, not only purchased by him for the plaintiff, Welch, but also that purchased by him tor various other parties as their agent, -which wool as well as that purchased for the plaintiff, Welch, had been put into this warehouse, which was burned, the object being to show what wool was put into this warehouse, .and then by the agent of the railroad company to show what quantity of wool had been shipped by James Aiken, this all being admitted to have been taken from this warehouse. The difference between what was put into the warehouse and what -was taken from it and was shipped would show the quantity remaining in it at the time of the lire. This the plaintiff admits to be legitimate; and it is in fact the mode, in which they ascertained the quantity of wool burned. But the objection of the plaintiff was, that, whou on cross-examination these books had been put in evidence for this purpose, and the keeper of them, James Aiken, had been thoroughly examined with reference to the many entries on them not only m reference to wool purchased for the plaintiff, Welch, but, also in reference to the entries of wool purchased for all other persons all of which were entered together on the same books, then here the matter should have ended; that the answers of James Aiken in reference to this wool purchased by him for others were to be regarded as answers on cross-examination as to collateral facts, and his answers should be regarded as conclusive; and that the court ought not to have permitted the defendant to examine a dozen witnesses with a view of contradicting James Aiken with reference to the quantity of wool he had purchased for persons other than the plaintiff, Welch, and put into this warehouse; for such a course of proceeding would render the trial almost interminable, and tend to the confusion oí ího jury and to injustice by stirring up prejudices. The plaintiff could not be prepared to meet by evidence all the disputed facts with reference to the quantity of wool purchased by flames Aiken for numerous parties through a period of many months preceding.

Upon this subject I think tíheplej’, judge, in pronouncing the opinion of the court in Lewis v. Hayden, 17 Me. 272, (5 Shepley) lays down the law corrctly. He says: “Is there any such rule of evidence as deprives the defendant of the right to discredit the witness, because on cross-examination he permitted him to proceed and relate the whole of the transaction between the parties ? It is true, that, if he examines him as to a collateral fact, he must take the answer and cannot contradict it. (Spencely v. De Willot, 7 East 108; Rex v. Watson, 2 Stark. R. 116.) But this rule does not extend to the cross-examination upon facts material to the issue. And he may inquire into other material facts to the issue, than those elicited by the party calling the witnesses; and if the answers are not satisfactory, he may by any legal proof contradict or discredit them. 1 Stark.. Ev. 164, (Mete. I, & G. Ed. 1876).”

Apply these principles to this case. The main question of fact in dispute was the quantity of wood in the warehouse, when it was burned. A legitimate mode of ascertaining this was to prove how much had been put into it, whether for the plaintiff or any one else, and subtract from that what . had been taken out and shipped, whether in the name of the plaintiff or any one else. With reference to this material fact the defendant had a right to fully cross-examine the plaiutifl’s witness, Jauies Aiken, and “ if his answer was not satisfactory, he might by any legal proof contradict or discredit them.” This the court below permitted the defendant to do by examining some dozen witnesses. Objection was made to the examination of only one, Jamos Endsley; and the court overruled the objection and permitted the witness to be examined to contradict James Aiken with reference to the wool, which he had purchased for persons other than the plaintiff, Welch, and which wool had been put into the warehouse. This was in reference to a material fact involved in the disputed question in the case; and I think the court did not err in overruling the plaintiff’s objection to the admissibility of the evidence. This no doubt opens a very large field for the introduction of evidence, but it seems unvoida-ble. The record shows that the defendant from the beginning disputed its liability for this loss, because, it asserted, James Aiken, who, it believed, was the half owner of the wool claimed to have been destroyed by this fire, was fraudulently pretending, that the quantity so destroyed was much greater than it really was, and had fraudulently made entries in his books to sustain him in this fraud. That this was the position of the defendant, the plaintiff was informed promptly and before the institution of this suit. This being the nature of this controversy, it is obvious that the court must give, as it does in every case of alledged fraud, a large scope to the evidence.

The plaintiff: again objects that the court permitted a number of witnesses to be examined as to fheir having knowledge of the destruction of wool by the burning ot buildings in other instances, and from the knowledge which they had thus obtained, permitted them as experts to express their opinion on the question, whether the burning of this warehouse on the night of the 21st and 22d of March, 1879, could have consumed entirely the quantity of wool that was claimed to be in it. No exception was filed to the introduction of the evidence of a number of these witnesses, but an exception was filed by the plaintiff to the introduction of the evidence of one witness, Leon Bryant, the adjuster of the defendant. The question objected to by the plaintiff which was propounded to this witness was: “If a frame building eighteen by twenty-two feet and a story and a half high, containing ten thoiisand or tvelve thousand pounds of wool in an upper story, should burn, state whether or not in your opinion the wool would be destroyed ?” The court overruled the objection and allowed the witness to answer the question; and he answered, that he did not think it possible that ten thousand pounds of wool could be consumed. in a building of this character. He further stated,, that he believed, that one-third of this ten thousand pounds of wool would have remained uneonsumed, if there had been that quantity in the building; and he therefore believed there was no such quantity of wool in the building, as all that was in it was consumed. He claimed to speak as an expert, because he had seen the debris of hundreds of thousands of pounds ot wool destroyed in burning buildings from Iowa to Massachusetts. Of facts, which require proof by means of indirect evidence, says Starkie, there are some of so peculiar a nature, that juries cannot without other aid come to a direct conclusion on the subject. In such instances, where the inference requires the judgment of persons of peculiar skill and knowledge on the particular subject, the testimony of such as to their opinion and judgment upon the facts, is admissible evidence to enable the jury to come to a correct conclusion. Thus the relation between a particular injury inflicted on a man’s body and the death of this man is an inference to be made by medical'skill and experience, and may be proved-by one who possesses those qualifications.

These propositions of law laid down by Starkie are no doubt entirely correct; and in such a case, as he suggests, we must be allowed to resort to the evidence of experts, though, as we all know, even in such a case the evidence of experts is often contradictory and so unsatisfactory, as probably to furnish no real aid to a jury in reaching a just conclusion. But Starkie lays it down further, that when the enquiry relates to a subject, which does not. require peculiar habits of study, in order to enable a man to understand it, the opinion of skilled witnesses'is not admissible; and he is unquestionably right in this position.

The question is: To which class does this burning of wool belong? Does it require any peculiar study or opportunities of observation to enable one to understand the extent, to which wool is inflammable? It seems to me it does not, and one man knows about as much of the matter as another. The fact, that I have seen once or oftener the debris of wool consumed in a burning building, does not make me peculiarly skilled with reference to ,the extent of the inflammability of wool. The debris I have seen may show, that much of the wool was not completely consumed by the fire. But why it was not completely consumed, I cannot judge. It may be, because during the progress of the fire it was completely soaked with water, or because the fire was not a hot one, there being no wind blowing while the building was being burnt, or it may be the extent, to which the wool was consumed or left unconsumed depended on many other circumstances, of which I had no knowledge. The allowing me therefore because I have seen the debris of wool, which had been burnt in buildings, or had witnessed one or more fires, in which buildings containing wool had been burned, to express my opinion, whether a given quantity of wool could be completely consumed in the’ burning of a building of a particular size, is to permit me to pass a judgment in the case, which the jury itself should pass and which probably they would be quite as competent to pass, and which in nine cases out of ten would be more likely to be correct, than one passed by this supposed skilled witness examined before them. These witnesses are of course looked up by the parties; and as the results of the appearance of the debris of burned wool would vary much according to the circumstances, under which it was burned, which circumstances would not be remembered by the witness, even if they had ever been known to him, it would of course according to the diligence of the parties in looking up proper witnesses be made to appear, that wool could be completely consumed by fire or could not be. In this case there is testimony of both sorts. That of the defendants that it could not be completely consumed appears to preponderate. But why ? Because such is the fact? I suppose not, but simply because the defendant has been the more diligent in looking up witnesses, who had seen fires in which the wool was'not completely consumed. Doubtless with-sufficient diligence a still larger number of witnesses might be found, who had seen fires, in which wool was completely consumed. All such evidence therefore is calculated only to mislead a jury and should be excluded. . Thejr should be left to pass their judgment on the question from the facts disclosed in evidence with reference to the particular fire.

The opinion of witnesses on such a subject too would no doubt be much influenced by their wishes and prejudices. Thus the witness, whose evidence as an expert on this subject, which the court permitted to be heard by the jury, and which was excepted to by the plaintiff, was the adjuster of the defendant, and thus perhaps naturally suspicious.and prejudiced in favor of his employer. The state of his mind in these respects may be judged of by a letter from him to the plaintiff, in the record, which he begins thus: “Dear SiR — Papers submitted by you to the Franklin Insurance Company of "Wheeling 'purporting to be proof of loss under an alleged policy claimed to have been issued by said company have been forwarded to me with your letter for answer.” The suspicious temperament-here indicated suggest, that the opinion of such witness would hardly tend to enlighten a jury, when this opinion was on a subject, of which probably they were as good judges as he, even if he had been unbiased by interest or prejudice.

The court below in this case admitted without objection other proof of this character, a portion of which was introduced by the plaintiff. As might have been expected, these opinions of experts, as they are called, were in direct and' irreconcilable conflict. No such evidence should have been permitted to go to the jury. The able counsel for the defendant have found no decisions, in which evidence of this character or evidence in any way resembling this in cases of this character has been admitted, and the mere absence of any such decisions confirms me in the opinion, that expert evidence on such a subject should be excluded.

The court below in this case permitted the jury, when they retired, against the protest of the plaintiff, to take to their room the deposition of the witnesses, which had been read to them; and the plaintiff excepted to this action of the court. Did the court err in this? By the English practice depositions are never sent to the jury-room. A different practice has generally prevailed in Ohio. Their court of appeals in Stites v. Adm’r. of McKibben, 2 Ohio St., approve this Ohio practice and assign as their reason for so doing, “that it enables tíre jury to refresh their memory as to the testimony, which has been given. But the court may properly refuse to allow it,in some instauees, as where a part of the testimony contained in the depositions has been pronounced incompetent by the court, and as the jury might read this incompetent evidence, none of the depositions, which cannot be separated from it, ought to go to the jury. . If the reason why the court refused to permit depositions to go to the jmy does not appear, the appellate court will presume it was done for a good reason.” In Hansbrough et ux. v. Stennett, 25 Gratt. 495, Judge Anderson in delivering the opinion of the court, says: “The court can perceive no reason why a deposition, which has been read to a jury, may not be given to the jury on their retirement, if what is objectionable has been erased.” This is all that is said by him on the subject.

The Code of West Virginia ch. 131 § 12, p. 627, provides, that “papers read in evidence though not under seal, may be carried from the bar by the jury.” This provision was taken from the Code of Virginia, ch. 177 § 11, p. 732, and has long been statute-law in that State. With reference to this section this Court said in State v. Cain, 20 W. Va. 707: “This section evidently refers to documentary evidence and not to depositions. If depositions had been by the Legislature intended to be included among ‘papers’ that might be carried from the bar by the jury, a different designation would have been made. Depositions in legal parlance are not known as papers.” This question then not being affected by this statutory provision and the common law of England having, it is admitted, always excluded depositions from being carried from the bar by the jury, I can see no reason why we should depart from the established common law rule. It seems to have been done in Ohio principally because a general practice prevailed in their circuit courts to permit depositions to be taken to the jury room. So far as wo are informed the English rule with reference to this point very generally prevails in this State, and I see good reason for continuing the practice. It often happens as in this case, that the evidence on one side is oral testimony introduced before the jury, the witnesses being examined in person before the jury. The mass of the testimony on the other side is in the form of depositions read to the jury. If the ease is an important one and the trial lasts for many days, if the depositions are permitted to be taken to the jury-room, and the minds of the jurors refreshed by the reading of the depositions, while the oral testimony of the other side has in a measure faded from the memory of the jury, it is obvious, that an undue advantage is given to the side, which is sustained by depositions. The Virginia decision would seem to have been rendered upon but little consideration, and no reason is given for their departure from the English practice. We hold this English practice as obligatory upon us until changed by statute-law, which it has not yet been so far as the taking of depositions to the jury-room is concerned. Even if my judgment did not approve this English practice, as it does, I could not depart from it, unless it was changed by statute-law. A common law practice, which has always prevailed in England and in this State is binding law upon us. The municipal court therefore erred in permitting the depositions in this case to he taken to the jury-room against the protest ot the counsel for the plaintiff.

It remains only to decide whether the court erred in refusing to grant the second instruction asked by the plaintiff’s counsel. That instruction was as follows: •

“If the jury believe from the evidence that the arrangement between Welch and Aiken under which the wool in controversy was bought and held, was that expressed in the letter of July 11, 1878, then while there was a partnership between Welch and Aiken in the profits or the losses of the transaction, still the interest of Welch in the wool itself was the entire, sole and unconditional ownership- within the meaning of the policy introduced in evidence.”

The terms of this arrangement as set out in this letter, were: “D. B. Welch was to furnish the money; James Aiken was to buy the wool, handle it, store it, bear half the-expense of insurance, interest, &c., and James Aiken 'was to get therefor one half of the profits, and he was to bear one half of the losses. D. B. Welch was to hold the wool bought as his own to secure him in the transaction.” This, it seems to me, is the plain meaning of this letter and almost the identical language used in it. The question for consideration is: Bid Aiken under this arrangement have any ownership of the wool purchased by him under this arrangement with Welch? Uow, as I undertand the law, there may be apart-nership in the profits or a partnership in the piofits and losses of an enterprise or adventure between the parties themselves, and yet they may not be partners in the capital stock, but it may belong exclusively to one of them; and if this be the understanding or agreement between the parties, the law will permit one partner to be and continue the exclusive owner of the capital, while yet there may be a partnership in the profits and losses coming out of the enterprise. To sustain this position Story in his work on Partnership refers to ex parte Hamper, 17 Ves. 403.

Where there is a positive agreement between the parties to this effect, that of course will govern. But if there is no such agreement and no implication from the circumstances of tlie case, which would lead to the conclusion, that this was the understanding, there will be presumed to bo a community of interest in the property as well as in the profits and losses. When by the agreement the property or capital is furnished by one partner, and the parties are to share equally or in any given proportion in the profits, and in the losses, no inference can be drawn that they are parties in the property or capital,but on the contrary the inference in such case is, that the partner who furnishes the property or capital remains the exclusive owner thereof. Thus if A. is the owner of goods and agrees with B., that B. shall be interested in a particular portion of the profit and loss of an adventure or voyage abroad, in which the goods are to be embarked, such an agreement will not make A. and B. partners in the goods as between themselves. (Meyer v. Sharpe, 5 Taut. 74; Smith v. Watson, 2 B. & C. 401; Hesketh v. Blanchard, 4 East. 114; Hall v. Leigh, 8 Crunch 50; Clement v. Hadlock, 13 N. H. 185.) But if the goods themselves are purchased on joint account or treated as joint property, or it is agreed that they shall be joint property though bought with the funds of one, then a different inference would arise, and the parties would be regarded as partners in the goods as well as in the profits and losses. (Reed v. Hollinshead, 4 B. & C. 867: ex parte Gellar, 1 Ross p.; Soule v. Haywood, 1 Cal. 345; Sims v. Wildings, 8 Serg. & R. 103.

27ow these principles are, it seems to me, as clearly illustrated and as forcibly set forth in the above cases cited as reported in 2nd Barnewall & Cresswell as anywhere else, and I will give below the syllabus in Smith v. Watson, 9 E. C. L. R. 122: “An agreement between A., a merchant, and B., a broker, that the latter should purchase goods for the former and in lieu of brokerage should receive for his trouble a certain proportion of the profits arising from the sale, and should share a proportion of the losses, does not vest in B. any share in the property so purchased or in the proceeds of it, although it made him liable as a partner to third persons.” These views I have expressed receive more or less support from Emmons v. Westfield Bank, 97 Mass. 230; Citizens Fire Insurance, Security and Land Co. v. Doll, 35 Md. R. 90; Boutelle v. Westchester Fire Co., 51 Vt. R. 10; Keiser v. State, 58 Ind. E. 379; Boyce v. Brady, 61 Ind. R. 432. The other case in Barnwell and Creswell, which, I think, illustrates the modification of the rule laid down above, is that of Reid et al. v. Hollinshead et al., 10 E. C. L. R. 460. The syllabus of this case is as follows: “A., a merchant in London, by letter directed B., a broker in Liverpool, to purchase one thousand bales of cotton and stated thatB. was to be allowed to be one third interested therein, acting in the business free of commission. B. agreed to purchase the cotton, and in the subsequent correspondence, which continued for ■ upwards of three months, the transaction was referred to as a joint account, joint purchase, joint speculation, joint cotton-adventure. 0. transmitted policies of insurance against loss by fire to A. and stated that the cotton was deposited in a room rented by him, B., and he held the key for their joint security. Held that B. was interested as a partner in the cotton, and consequently that a pledge of the whole by him, without any fraud or collusion on the part of the pawnee, gave a right to the pawnee to hold the goods as against A.”

The conclusion, it seems to me, to be drawn from these cases is, that the question, whether an agreement between two parties constitutes them partners as between themselves only in the profits and losses of the business, or partners also in the property or capital invested in the business, depends for its answer entirely upon the intention of the parties to the agreement; and if the intention of the parties is not expressed explicitly in the agreement, if one is to furnish all the property or capital, with which the business is to be carried on, and the other furnishes only his labor in carrying-on the business, the prima facie inference is that the parties are to be regarded as between themselves as partners in the profits aud losses in the business and not as partners in the property or capital, with which the business is carried on, unless in the agreement of the parties or in their subsequent conduct of the business there be a clear indication, that the parties were to be regarded or regarded themselves as partners in the property or capital with which the business is conducted and in the absence of such indication in the agreement or in the conduct of the parties when the property or capital, with which the business is conducted, is fur-nishecl by one partner only, lie should as between the parties be regarded as the exclusive owner of such property or capital.

Applying this principle to the facts proven in this case my conclusion is, that on the face ot this letter of June 11,1878, if it is the agreement, on which this business of buying and selling wool was to be conducted by Welch and Aiken, they can be held as between themselves to be partners only in the profits of this'business and that Welch is to be regarded as having the entire, sole and unconditional ownership of the wool, which was purchased. This follows from the furnish-, ing of all the capital by Welch, with which this wool was purchased, and from the-fact that the compensation of Aiken for his labor and skill in purchasing, handling and storing the wool was to be one half ot the profits arising from its sale. This presumption is not rebutted by the fact, that he was to sustain one half of the losses, if any occurred. I regard the fact, that one half of the expenses, interest on the money used in buying the wool, &c., were to be as it were charged to Aiken in the settlement, as in no manner affecting the agreement or the relations of these parties ‘to each other, or to the property purchased; for even had this been left out ,of this agreement, it would necessarily have been implied, as one half of the profits or losses could only be ascertained by charging Aiken with one half of the insurance, interest, &c.

There is some evidence tending to show, that this letter does not express truly the real understanding between these parties as to the character of this business and the relations of the parties to each other; and that there -was an understanding further that they were to be joint owners of the property purchased. But if this letter, as these parties testify, expressed truly the terms of their arrangement for carrying on this business, then Welch was. to be held as having the entire, sole and unconditional ownership of the wool purchased with his money; and the second instruction offered by the plaintiff ought to have been granted by the court. I am therefore of opinion, that the municipal court erred in refusing to grant this instruction.

For these reasons I am of opinion that the verdict of the jury rendered on February 14, 1880, ought to have been set aside and that a new trial should have been awarded, the costs of the former trial to abide the result of the suit and that therefore the judgment of April 22, 1881, based on this verdict should be set aside, reversed and annulled and the plaintiff in error should recover of the defendant in error his costs in this Court expended; and this Oouyt should enter up such judgment, as it is above indicated the municipal court should have entered; and this cause must be remanded to the municipal court of Wheeling to be further proceeded with according to the principles laid down in this opinion and further according to the principles governing courts of law.

REVERSED. Remanded.