Gibson v. Hatchett

GOLDTHWAITE, J. An objection was taken in the court below to an inquiry made of a witness, as to whether the defendant could see an opening in the wall from the place where he was proved to have been standing. This objection was overruled, and the witness allowed to answer the question. It was through this aperture in the wall, that the fire which consumed the building entered ; and the defendant offered to prove, by the opinion of a witness, that the house and cotton could have been saved, if this opening had been built up. This evidence was rejected. We shall consider the ruling of the court in relation to this testimony, except as to the relevancy of the first piece of evidence, as constituting but one question. The general rule is conceded, that a witness must testify as to facts, and facts only; but to this rule there are several well established exceptions, and it is often extremely difficult to define the line which separates opinion from fact. Evidence as to personal identity, — the value of property, and hand-writing, must always, to a certain extent, be matter of opinion ; and yet, in these cases, the witness is allowed to state his conclusions. — 1 Greenl. Ev. § 440; so, also, as to time, and distance. The question propounded to the witness we regard, in substance, as simply whether an object was visible from a certain point, and are inclined to consider it as a matter of fact, rather than of opinion. There is no inference to be drawn — no circumstances to be weighed. It depends upon the exercise of a physical sense. But, if it were matter of opinion, we should hold it admissible, upon the principle which obtains in the other instances we have referred to. It is obvious, however, that the testimony which was rejected, does not rest upon the same principle. The question as to whether the building could have been saved, if the opening referred to had been built up, does not depend upon the simple exercise of a physical sense: it requires the aid of the intellectual powers ; there are, in that case, inferences to be drawn, and circumstances to be weighed, which it is peculiarly the pro* [207] vince of the jury to do. It is entirely matter of opinion, and there is no principle on which it can be excluded from the operation of the general rule of law. As to the relevancy of the first question, we consider it as decided when the caso was last here. — 13 Ala. 589. Gibson, it is true, was under no obligation to ascertain whether the building was fire-proof; but it was competent for him, in the language of Collier, C. J., “ by his acts, to assent to the storing of his cotton in a building of a different description from what the plaintiffs’ contract contemplated;” and any testimony, however slight, which tended to establish this conclusion, was admissible. In this aspect, the evidence was relevant. Wo think, also, there was no error in overruling the objection to the answer to the ninth interrogatory, the latter portion of which was objectionable, for the reason that it was not responsive. Tho inquiry is, “ If the w'arehouse had been as good as that of the witness, could it have been saved by the use of ordinary diligence I” The reply is, t£ Had it been as good as mine, eight such men could have saved it, but Major Dick was one.” We suppose the witness must have referred to the fact of the number of men engaged in saving his own warehouse on the night of the fire, or to those who were engaged in assisting Hatchett that night*; and interpreting his answer by reference to these facts, it can only mean that, if Hatchett’s warehouse had been equal to his own, it could have been saved by eight men, if Major Dick was one. Admitting, for the sake of argument, that any valid objection to the question had been waived, as is contended on the part of the plaintiff in error, we are still unable, upon the only rational interpretation we can put upon the portion of the answer to which we have referred, to perceive that it is responsive to the interrogatory. It assumes, that eight such hands” as were engaged in rendering assistance, either to Hatchett or the witness, during tho fire, could, by the use of ordinary diligence, have saved the warehouse, provided the particular individual to whom he refers by name had been one of them. This, by itself, and without further explanation, was no answer. to the inquiry ; and if admitted, without explanation, might serve to mislead the jury. It is true, that a portion only of the answer was, upon the grounds on which wo have considered it, objectionable, while the objec* [208] tion went to the whole ; and we have frequently held, that m such case it does not devolve upon the court to separate the 'legal from the illegal evidence, but that the whole may be admitted, (Murrah v. The Br. Bank, 20 Ala. 392, and cases there cited); and upon the same principle, where any portion is illegal, the whole may be excluded. In relation to the offer made on the part of the defendant below, “ to show in what manner the warehouse of Thomas was built, — that it was not burned, and the special efforts which were made to save itThis evidence would have been proper, if it had been shown that the building of Thomas was fire-proof, and as much exposed to danger as Hatchett’s warehouse.— Collier, C. J., in holding that this evidence was admissible, in the opinion we have already referred to, rests it upon the first ground; and we have looked into the record in that case, and find that both of these facts were in evidence. Indeed, it is obvious that, unless they were established, evidence showing the same facts, in relation to any other building, would have been equally relevant. To have rendered this evidence legally admissible, the facts upon which its relevancy depended should have been proved, or it should have been offered in connection with these. This was not done ; and without it there was no error in rejecting the testimony. So, also, as to the rejection of the declarations made by Hatchett to Bradford, in the fall of 1844, to the effect that he intended to make his warehouse fire-proof before he stopped working on it. It was held, it is true, when the case was last before this court, that these declarations were properly admissible, for the purpose of fortifying the inferences resulting from the advertisements and form of the receipts given by the plaintiff for cotton (13 Ala. 589); but in the present case, the record shows that they were not offered with that view, but for the purpose of showing “ the continued intention of the plaintiff to make his warehouse fire-proof, and to rebut the idea that he had abandoned this intentionand conceding that the declarations may have tended to establish these facts, wo are unable to perceive their relevancy to the issues. That Hatchett intended before, and in the fall of 1844, to make his warehouse fire-proof, certainly does not tend to show a contract on his part to store in a warehouse of that description, or to rebut any [209] testimony which had been offered to prove that this contract, if it existed, had been modified or changed by the parties. But had it been offered for the identical purpose for which it wa s decided by this court to have been admissible, the error in its rejection would not have been available here, as the charge of the court was, that the contract to store in a fire-proof warehouse was established without the aid of such facts, and the evidence thus considered was redundant and superfluous, the exclusion of which, although erroneous, is not available, as no injury results from it. There was no error in the refusal of the court to instruct the jury as requested; for the reason, that the charge asked asserts the proposition, that the want of ordinary care in a certain particular, will render the bailee responsible in all events. Without deciding the question, whether the keeping of gunpowder in a cotton warehouse was a want of ordinary care in Hatchett, it is certain, that, if the destruction of the cotton was not connected with that act, but was owing to other causes, the bailee could not be held responsible on that ground. It results from the views we have expressed, that there is no error in the record, and the judgment is affirmed. Chilton, C. J., not sitting.