Northwest Door Co. v. Lewis Inv. Co.

McBRIDE, C. J. The testimony in this case covers more than one thousand pages and is conflicting in many particulars and a general review of it is impracticable. It is sufficient to say generally that there was sufficient testimony to justify the jury in finding that the destruction of plaintiff’s mill was caused by the negligence of the defendant, Lewis Investment Company, in lighting and maintaining its fires upon the Columbia Dock property, even though this court, sitting as triers of the fact, might arrive at a different conclusion. Our task is to ascertain and determine from the record whether the trial was so conducted and the jury so instructed that no error to the prejudice of the substantial rights of the defendant may have influenced the verdict arrived at. We will consider the alleged errors in the order in which they are assigned in the abstract, and as shown in the foregoing statement. 1. The first assignment is merely formal and need not be discussed. 2-4. As to the second assignment, we are of the opinion that the instruction correctly states the law: Fireman’s Ins. Co. v. Oregon R. R. Co., 45 Or. 53 (76 Pac. 1075, 2 Ann. Cas. 360, 67 L. R. A. 161, and cases there cited). 5. It is further contended that there is no legal evidence that the insurance companies paid any losses on account of the fire, and that plaintiffs have, therefore, failed to establish their right to subrogation. It is — 200 — true the testimony in this regard was oral and informal, but it was received without objection- and was sufficient to take the matter to the jury. Samuel Connell, president of the Northwest Door Company, testified in substance^, that he had examined the complaint and knew the list of companies therein specified; that the Northwest-Door Company had insurance with all those companies, and that the losses were paid, as set forth in the complaint. In the absence of any objection, this epitomized the whole subject and was probably quite as enlightening to the jury as the presence of the policies, proofs of loss and receipts for payment thereof, would have been. There was no necessity for any formal assignments of pro rata proportions of the losses paid to the companies paying them. As shown by Fireman’s Ins. Co. v. Oregon R. R. Co., 45 Or. 53 (76 Pac. 1075, 2 Ann. Cas. 360, 67 L. R. A. 161), the right of an insurance company to subrogation follows as a matter of law from its payment of the loss. For the reasons above stated the request embraced in assignment IV was properly refused. 6, 7. Assignments V and VI relate to the instruction of the court, relating to the effect of the violation of the city ordinance, prohibiting the lighting or kindling of fires within the city limits without a permit from the chief engineer of the fire department. It is conceded the defendant had no such permit. It applied for a permit, which the chief engineer declined to grant but referred defendant to th^ mayor, who gave it some sort of verbal permission to burn the debris on the remains of Columbia Dock,- but this permission was, legally, as ineffective as though it had been granted by the pastor of one of the city churches.. It stands, therefore, practically admitted that any fire kindled or lighted by defendant, in the process of removing — 201 — the debris from its dock, was maintained in violation of the ordinance. This being true and assuming that there was evidence to go to the jury, tending to show that the burning of plaintiff’s mill was the result of fire communicated from the bonfires so unlawfully built and maintained, the question as to whether the building of such bonfires constituted negligence per se or were merely evidence of negligence becomes very important. The decisions in this state are not harmonious. In Beck v. Vancouver R. R. Co., 25 Or. 32 (34 Pac. 753), such violation was held to be only evidence of negligence. In Kunz v. Oregon R. & N. Co., 51 Or. 191 (93 Pac. 141, 94 Pac. 504), Justice Moore, without directly passing upon the question, intimates that such a violation is only evidence of negligence. In Peterson v. Standard Oil Co., 55 Or. 511 (106 Pac. 337, Ann. Cas. 1912A, 625), the writer of the opinion suggested that such violation was evidence of negligence and not negligence per se, and attempted to distinguish between city ordinances and state statutes in that regard. The direct question was not involved in that case, which was brought under a state statute and only arose incidentally. The same doctrine was announced in Palmer v. Portland, Ry. L. & P. Co., 56 Or. 262 (108 Pac. 211), and in Stewart v. Portland Ry. L. & P. Co., 58 Or. 377 (114 Pac. 936), several of these being written by the author of this opinion, and representing then and now his personal view upon a question upon which the courts are at variance. In Morgan v. Bross, 64 Or. 63 (129 Pac. 118), the question came up again, and in an opinion by the late Justice Moore the doctrine announced in Beck v. Vancouver R. R. Co., 25 Or. 32 (34 Pac. 753), and the cases — 202 — following that case, was overruled and the doctrine announced that, violation of an ordinance for the protection of the public, constituted negligence per se. This case was the subject of much discussion and some difference of opinion here, but it represented the deliberate judgment of a majority of the court, and must be taken as a final interpretation of the law in this jurisdiction. The same rule was adopted iff Rudolph v. Portland Ry. L. & P. Co., 72 Or. 560 (144 Pac. 93). It being now the settled law in this state that violation of ordinances, of the character of the one under discussion, constitutes negligence per se, it now remains to apply the rule to the circumstances of this case. It is fundamental that a person committing an unlawful act, which is the proximate cause of injury to another, will be compelled to respond in damages for such injury. The building of bonfires upon defendant’s property was an unlawful act. It was not unlawful to fail or neglect to secure a permit, because so long as no fire was kindled the having or not having a permit was of no consequence. The unlawful act consisted in kindling a fife without the permit. The object of the ordinance was to prevent the ‘building of bonfires in those cases or at those seasons or in those localities when, in the experienced judgment of the chief engineer of the fire department, such fires might result disastrously. Whether with good or bad intent the fact remains that defendant, in the light of plaintiffs ’ evidence and in the judgment of the jury, unlawfully kindled a fire which burned plaintiff’s property. Assuming, as we must after verdict, that the fires maintained by defendant produced the injury, we have this syllogism. The defendant unlawfully kindled a fire; it destroyed plain — 203 — tiff’s property; therefore, defendant must respond in damages. It- is idle to speculate upon what would have happened if defendant had secured a permit. If defendant had acquiesced in what was practically a refusal by the chief engineer to issue the permit, and taken some other method of disposing of the waste and débris, which encumbered its property, then (assuming the verdict of the jury to be correct) no fire would have happened. The proximate cause of the injury in. this case was the unlawful building of a fire so near the property of plaintiff that the fire got out of bounds and destroyed plaintiff’s property. The case of Burbank v. Bethel Steam Mill Co., 75 Me. 373 (46 Am. Rep. 400), cited by counsel, is easily distinguished from the present. In that case the statute made the erection of a steam engine in any municipality a nuisance unless a license was obtained. The defendant erected such an engine and it was claimed the sparks therefrom set fire to and burned defendant’s mill, and that the fire from the burning min was communicated to plaintiff’s house and destroyed it. In that case the thing prohibited was not the direct cause of the injury. The erection of the engine in itself did not destroy the plaintiff’s property, but the use made of it after it had been unlawfully built was the injury complained of. The distinction made by the . court seems subtle and very technical and is not borne out by the cases cited in support of it. The court seems to have assumed that a license must necessarily have issued in case it had been applied for; in fact, the provision of the statute seems more designed to provide for inspection and inquiry into the method of its erection and the safeguards against public danger and convenience, than for any other purpose. Thus the statute provided for — 204 — a public notice of the hearing of the application and an-investigation as to the height of chimneys/ flues, size of boiler and furnace, and means of protection against fire and explosion: Me. Rev. Stats., p. 214, § 13 et seq. This statute did not make the erection of such an engine a criminal offense, but provided that the authorities might cause it to be abated as a nuisance. The case seems to be an unique one and, in the-writer’s opinion, is not sustained by the better authorities, while some of the authorities'cited in the opinion, certainly lay down a different doctrine from that therein expressed. It will be noticed the Maine case was not an action based upon violation of a municipal ordinance, but upon a violation of a state statute and, therefore, if authority in any way in this case it would be upon the proposition that when violation of a state statute is the proximate cause of any injury, such violation is not negligence per se but only evidence of negligence, a doctrine repudiated in Peterson v. Standard Oil Co., 55 Or. 611 (106 Pac. 337, Ann. Cas. 1912A, 625), and by the great weight of authority in this country. The Maine case does not attempt to differentiate between the effect of state statutes and municipal ordinances in the respects mentioned, and Maine may be classed among the few states holding that the injurious violation of a state statute is only prima facie evidence of negligence. Error is predicated upon the failure of the court to give the instruction set forth in assignment VII%, but this request is practically included in the instruction set forth in assignment VIII. 8. Assignment VIII challenges the correctness of the instruction therein set forth, by reason of the words' “having in view the probable danger of injury,” hav — 205 — ing been added at tbe end of each paragraph. It is earnestly argued that the words quoted constituted judicial intimation to the jury that there were dangers connected with the methods used by the defendant in clearing away the débris from its dock and was, therefore, likely to have had a prejudicial effect against defendants. We think the assumption far-fetched. The proposition was stated generally and without reference to any fact in the particular case, and merely amounted to saying that one using fire, a known dangerous element, should consider the probable conse^ quences of such use and the known dangers that result from the element getting beyond control, and use ordinary care to prevent such consequences. The phrase objected to is a mere variation of the language used in Kendrick v. Towle, 60 Mich. 363 (27 N. W. 567, 1 Am. St. Rep. 526), wherein the trial court defined negligence as follows: “Negligence consists in the failure to use that degree of care which the law requires for the protection of interests likely to be injuriously affected by the want of it.” Concerning which definition the court observes: ‘ ‘ This definition was given by one of the ablest elementary law-writers of modern times, and has received the approval of this court: Flint & P. M. Ry. Co. v. Stark, 38 Mich. 717; Brown v. Congress & B. St. Ry. Co., 49 Micb. 153 (13 N. W. 494), and we see no good reason for withdrawing that approval.” In Martin et al., v. Texas & Pac. Ry. Co., 87 Tex. 117 (26 S. W. 1052), the court approved the following instruction: “By ordinary and proper care and diligence, is meant such care and diligence as a person of ordinary prudence and caution would commonly exercise under the circumstances, and the degree of care and diligence — 206 — required in each, case is proportionate to the amount of danger probably consequent to a failure to exercise care and diligence.!’ In the case at bar, while we would not commend the phrase criticised as the best possible language that could have been used, we are satisfied that it never could have been taken by the jury as an expression of opinion as to the merits of any phase of the controversy, and it is sustained by good authority. Taking the charge upon this subject as a whole, it was entirely fair to the defendant. 9. Assignment IX predicates error iipon the court enumerating certain items of damages, concerning which it is claimed that no testimony was given. It is apparent that the court in its charge read from the complaint the list of items of property, which it was claimed were destroyed by fire, and then instructed the jury that if it found for the plaintiff it should allow such sum as it should find the plaintiff was damaged by their destruction. In this enumeration there are some items of apparently minor importance, concerning which no testimony was given at the trial. Defendant’s counsel enumerates trains, log slides, bulkheads, gearing, conyerers, rollers, skids, cranes, chains, wheelbarrows and jacks, as the items concerning which no testimony was given, but as to several of these the objection amounts to a mere verbal distinction, the articles being Called by one name in the complaint and by another, or other designations, in the testimony. But it is beyond question that there was no evidence showing the existence of any log slides or bulkheads in connection with the plant, and there may be one or two other small items in the same condition, although after a second reading of the testimony the writer is unable to recall any others. — 207 — But we do not think the exception was sufficient to save the point urged. The objection should have distinctly pointed out to the court the items concerning' which no testimony had been offered so they could have been eliminated. In matters concerning the admission of evidence the law has certain general formulae, such as “irrelevant,” “incompetent,” or “immaterial,” which are frequently but not always held to sufficiently state an objection, but this rule cannot well be applied to an exception to an instruction. An exception to an instruction should, in fairness to the court, be sufficiently definite to enable the judge to check up on the evidence and eliminate an objection of the character here made, by withdrawing from the consideration of the jury the item, concerning which no testimony was offered. To hold otherwise would make the right of objection on this ground a mere trap to ensnare the court into technical error. This case furnishes an example. The trial was begun on May 15th, and concluded on June 6th, nearly three weeks later, the sessions being practically daily, except holidays. Over a hundred witnesses were examined. The items enumerated in the complaint were very numerous and perhaps amounting to fifty or more. To expect the court to preside at the trial, hear and rule upon an objection every ten minutes, consider arguments of counsel upon the law, prepare his charge to the jury, and still carry in his memory a tally of the items upon which testimony was offered, and be able to recall those concerning which no testimony was given, would be to require more than any judge on earth is capable of. Under such circumstances, counsel have two remedies; one is to point out to the court those items of plaintiff’s claim, concerning which no testimony has — 208 — been offered, and ask that they be withdrawal from ,the consideration of the jury, or, they may object to the instruction, pointing out snch items specifically so the court may correct his instructions to conform to the testimony. The rule, relating to an instruction of the character here complained of, is analogous to that announced in Murray v. Murray, 6 Or. 17; Langford v. Jones, 18 Or. 307 (22 Pac. 1064); Nickum v. Gaston, 24 Or. 380 (33 Pac. 671, 35 Pac. 31), in' which it is held that wheré a general exception is taken to a series of propositions, it is insufficient if one of them is good.' In those cases, as in this, the underlying principle is, that the judge is entitled to know specifically what the party is objecting to, with a view to enabling him to correct the mistake, if one exiats. 10. Assignment X relates to the failure of the court to give the requested instruction set forth therein. This request was substantially covered in the general instruction given, and there was no injury to defendant by the refusal of the court to give it in the exact language desired by defendants. 11. Assignment XI relates to the admission of certain photographs taken two days after the fire had occurred. There was evidence tending to show that conditions on the premises photographed, were substantially the same as on the day of the fire, and there was no error committed in admitting the photographs. 12. Assignment XII predicates error in the admission of the testimony of Clara C. Thomas, as to values of the machinery destroyed in the fire, it being claimed -she disclosed no qualifications to testify as an expert on values. This witness testified as to her qualifications as follows: — 209 — “Q. Where do you live Miss Thomas? “A. Portland. “Q. What is your occupation? “A. I am with the American Wood Working Machinery Co. “Q. How long have you been working for them? “A. About éix years. “Q. What are your duties there? “A. I do clerical work, stenographic work, and assistant to the manager. “Q. Does your duties there bring you in contact with the prevailing prices of woodworking machinery? “A. It does. “Q. Was that true in 1914? “A. Yes. ‘ ‘ Q. At that time were you acquainted with the price of various woodworking machinery? “A. Yes, in the planing-mill and factory line. ' 1 ‘ Q. Do you handle new machinery and second-hand machinery? “A. Yes; we deal principally in new machinery, but we have some second-hand machines. “Q. Where does that company sell its machines, in what states ? “A. We sell in practically every state in the Union, and foreign countries also.” Upon cross-examination, Miss Thomas gave the following testimony: “Q. Your work there is entirely office work, is it not? “A. Yes, and whatever selling comes into the office, I am more or less interested in. I have sold single machines, and also sold whole planing-mill outfits. “Q. You are a stenographer in the office? “A. Yes, and assistant to the manager. “Q. You have charge of the stenographic work? “A. Yes, I have charge of the office. “Q. You do the bookkeeping? “A. We have no books at all. — 210 — “Q. You have never been in the machinery or mill line yourself, in a practical capacity? “A. No, sir.” 13. The determination of the qualifications of a witness to testify as an expert, is within the sound discretion of the trial court, and will not be disturbed on appeal unless there is no evidence to sustain the decision : Rugenstein v. Ottenheimer, 70 Or. 600 (140 Pac. 747). We are of the opinion the preliminary testimony of the witness tended to show that she had some, in fact, considerable knowledge of the market prices of machinery, and under the holdings in this state this renders her1 testimony on that subject competent: Willis v. Horticultural Fire Relief, 77 Or. 621 (152 Pac. 259). 14. Assignment XIII relates to the admission of the testimony of L. A. Lewis. Paragraph IX of plaintiffs ’ complaint, charged the defendant, Lewis Investment Company, with having kindled and maintained fires for the purpose of removing and consuming the débris upon Columbia Dock, which allegation was denied in the answer. The issue thus made was broad enough, as will be seen by the pleadings, to require some proof that the defendant participated in removr ing the débris, especially as it appeared from the testimony that the defendant’s dock was occupied by other parties at the time it was burned. The fact- that defendant had made a claim against the insurance companies for the estimated cost of the removal of the débris, indicated an intention on its part to take charge of its removal. The testimony was not strong and somewhat remote but it was not inadmissible. The fact that it was used in argument for a purpose for which it was not admitted, did not destroy its rele — 211 — vancy, and no exception seems to have been taken to the course of counsel for plaintiff in so misusing it. 15. For the reasons stated in respect to the admission of the photographs, we hold that the testimony of C. W. Robison, constituting assignment XIV, was properly admitted. 16. We think assignments XV and XVI sufficiently covered by the general charge. In general instruction. VI, negligence is defined as the want of that reasonable care which would be exercised by a person of ordinary prudence under the existing circumstances, having in mind the probable danger of injury. Instruction VII, heretofore quoted, elaborates this definition to the extent of making plain what constitutes ordinary care. Instruction XI places the burden of proof upon the plaintiff to establish negligence. Then follows instruction XII which, in our opinion, ' fully and fairly covers all matters embraced in assignments XV and XVI, and which is as follows: “I instruct you that after one discovers fire on his premises (not set by himself) he is bound to exercise ordinary care and diligence to prevent it from spreading so as to endanger his neighbor’s property. He is bound to put forth such reasonable effort to prevent the fire injuring his neighbor’s property as a man of ordinary prudence, who was actuated by a proper regard for his neighbor’s rights and safety, would in like circumstances put forth; and I instruct you that if you find from a preponderance of the evidence that at and prior to the time of the fire, which the plaintiffs allege destroyed the planing-mill property of plaintiff, Northwest Door Company, a fire or fires were smoldering or burning upon or in defendant, Lewis Investment Company’s property, and that said defendant knew, or should have known, that said fires were so smoldering or burning upon its property, and that said defendant — 212 — carelessly and negligently failed to extinguish the same, or carelessly and negligently failed to guard or control the said fire or fires, or carelessly and negligently failed to take reasonable precautions to prevent the escape and spread of said fire or fires to the mill and property of plaintiff Northwest Door Company, and you find that by reason of such carelessness and negligence in any of the respects mentioned in this instruction, the planing-mill property of plaintiff Northwest Door Company was set on fire and destroyed by fire communicated thereto from sparks, burning cinders, or live coals blown, cast or scattered by the winds from said fires smoldering or burning on said defendant’s said premises to and upon said planing-mill property, your verdict should be for plaintiffs.” This instruction stated the law fully and plainly and, taken in connection with the other instructions referred to, was sufficient. 17. It is claimed in the brief, though not assigned as error in the abstract, that the court erred in giving the following instruction: “If you find from a preponderance of the evidence that the Lewis Investment Company kindled and lighted fires on its said dock premises, for the purpose of burning debris and waste, as alleged in plaintiff’s amended complaint, without first having obtained a written permit so to do, signed by the Chief Engineer of the Fire Department of the City of Portland, as required by the ordinance of said city, and that sparks, burning cinders or coals were carried by the wind from said fire or fires to the property of the Northwest Door Company, thereby igniting and setting-the same on fire, and you further find that the kindling and lighting of said fires was'the approximate cause-of the communication of said sparks, burning cinders or coals to said planing-mill property, and tbe destruction thereof by fire, you should find for plaintiffs. ’ ’ The alleged error here is the use of the words “approximate cause” instead of “proximate cause.” — 213 — This was probably an inadvertence of the court or the stenographer, and while there is a technical distinction between the two words, it is wholly improbable that the misuse of the word “approximate” misled the jury or had any effect upon the verdict. In view of subsequent instructions, we think this mere verbal error is cured in any event. In general instruction XVIII the court used the following language, certain phrases of which we italicise s “The proximate cause is an important matter in cases of this kind. The proximate cause is the principal cause, it is the main cause, the cause without which the accident would not have happened; in other words, without which the fire would not have happened. Ask yourselves what caused this fire? What was the main cause? What was the principal cause of this fire? That is, the proximate cause.” And in the succeeding instruction the court said: “I have used the expression ‘proximate ccmse’ and by proximate cause is meant that, which in natural and continuous sequences produces the event without which the injury would not have happened. Does the evidence in this case satisfy you that the negligence, if there was negligence upon the part of the Lewis Investment Company, was the proximate cause of the burning of the Northwest Door Company plant? That is to say, was it that which produced the event, and without which this factory would not have been burned? And if you find that the negligence of the defendant company was not the proximate cause of the burning of the Northwest Door Company factory, then and in that event your verdict should be for the defendant. ’ ’ In view of the whole charge, we do not think the inadvertent use of the word “approximate” constitutes reversible error. It may not be inappropriate here to correct a printer’s blunder in regard to the same word. In — 214 — Peterson v. Standard Oil Co., 55 Or. 511, at page 522 (106 Pac. 337), the type makes the writer of that opinion and of this use the term “approximate cause.” An inspection of the original opinion on file here shows that he in fact wrote “proximate cause.” The opinion is correctly printed in the Pacific Reporter. • Upon the whole, we are satisfied that the case was fairly tried in the court below, and while, as usual, in these long-drawn out cases some'merely technical mistakes and oversights may have occurred, there were none which affected the final result, or which constitute reversible error. The briefs of respective counsel might well serve as models of arrangement and have greatly facilitated the labors of the court in its investigations. The judgment is affirmed. Affirmed. Benson, Burnett and Harris, JJ., concur.