Royal Insurance v. Atlantic Coast Line Railroad

BbogdeN, J. Bethune-Colwell and Company, were the owners of the cotton destroyed by fire. On 8 July, 1925, after receiving payment, a subrogation receipt was signed and delivered to the plaintiffs by the owners of said cotton, and the plaintiffs, by virtue of said subrogation receipt and assignment, instituted this action against the defendant on 11 July, 1925. L. A. Bethune, one of the owners of the cotton, testified that bis firm was required, under the terms of the contract of insurance, to sign a subrogation agreement, but that the subrogation paper first presented by the plaintiffs permitted the plaintiffs to bring suit in the name of the owners of the cotton, to wit, Bethune-Colwell and Company, and that the owners bad declined to sign the receipt in that form. Thereupon the witness Bethune was asked the following question on cross-examination by counsel for defendant: “Q. Had you not stated that in your opinion, before that time, (that is the time of signing the subrogation receipt), that the railroad company was not responsible for this fire?” “A. I expressed the opinion that I did not think the railroad company burned it. Yes sir, I did that.” The plaintiff objected to the question and moved to strike out the answer. The trial court admitted the evidence and the plaintiffs excepted. The witness Bethune also testified as follows: “When I got there not all of the cotton was on fire. ... I did not observe the condition at the cotton platform or on the track the day of the fire. ... I got to the fire as quick as I could after the alarm was sounded. I do not know of my own knowledge bow the fire occurred, I do not recall that I noticed the condition around the platform that particular day.” The plaintiff contends that the evidence is incompetent for the reason that it permitted a witness to give an opinion as to the cause or origin of the fire when the witness bad no personal knowledge of the condition of the premises and was not present when the fire started. The defendant contends that the testimony is competent for the reason that it is a declaration against interest, which is one of the well defined and well established exceptions to the hearsay rule. One of the leading cases in this State, discussing declarations against interest, is Smith v. Moore, 142 N. C., 217. In that case Walker, J., writing for the Court, said: “Declarations of a person, whether verbal or written, as to facts relevant to the matter of inquiry, are admissible in evidence, even as between third parties, where it appears: 1. That the declarant is dead. 2. That [696] the declaration was against bis pecuniary or proprietary interest. 3. That be bad competent knowledge of the fact declared. 4. That be bad no probable motive to falsify the fact declared.” Roe v. Journegan, 175 N. C., 261; Carr v. Bizzell, 192 N. C., 212. Without entering into any discussion of the complexities of declaration against interest, it is generally held to be the law that in order to make such declarations admissible in evidence the declarant must have a competent knowledge of the fact declared. In the case at bar the witness Bethune expressly testifies that be bad no knowledge of the condition of the premises or of the origin of the fire. The cotton was burning wben be arrived upon the scene. The evidence of the witness perhaps would be more in the nature of an admission. The difference between an admission and a declaration against interest is discussed by Justice Allen in Roe v. Journigan, supra. Of course, technically an admission is a statement of a party, and the witness Bethune was not a party to this action. He was, however, the assignor of the plaintiffs, and was therefore a privy in estate, and any competent declaration made by an assignor is admissible against the assignee, who bolds title under him. Guy v. Hall, 7 N. C., 150; Johnson v. Patterson, 9 N. C., 184; Satterwhite v. Hicks, 44 N. C., 105; MaGee v. Blankenship, 95 N. C., 568; Shaffer v. Gaynor, 117 N. C., 24; Wigmore on Evidence, 2d ed., Vol. 2, sec. 1080 et seq., p. 593. But even an admission must be the acknowledgment of a fact and not of a mere opinion, having no foundation either in knowledge or from observation. The whole question, therefore, is narrowed to the inquiry as to whether or not the opinion of the witness.Bethune as to the origin of the fire was competent under the circumstances disclosed by the record. In Hill v. R. R., 186 N. C., 475, this Court stated the law as follows: “In the law of evidence no principle is more familiar than that which ordinarily excludes the opinion of a nonexpert witness. One who is called to testify is generally restricted to proof of facts within his personal knowledge, and is not permitted to express bis opinion concerning matters which the jury are required to decide. . . . The opinion of the witness should be based upon facts admitted or found,. or upon his personal knowledge, and not upon the assumption of the fact.” The origin of the fire was the point in issue between the parties and was the identical question to be determined by the jury. The testimony was therefore incompetent and should have been excluded. Summerlin v. R. R., 133 N. C., 551; Marshall v. Telephone Co., 181 N. C., 292; Stanley v. Lumber Co., 184 N. C., 307; S. v. Brodie, 190 N. C., 554; Trust Co. v. Store Co., 193 N. C., 122; 154 N. C., 523. New trial. Stacy, C. J., dissenting.