Bradford v. Cunard Steamship Co., 147 Mass. 55

147 Mass. 55 | Mass. | 1888

Holmes, J.

1. If the plaintiffs had no better evidence of the amount of damage suffered by their goods than the report of an appraiser who settled the sum to be paid by the insurers, the want of it was due, not to the nature and necessities of the case, but to their own neglect. The report would not have been admissible if the appraiser had been alive, and could have been called as a witness. Kafer v. Harlow, 5 Allen, 348. Adams v. Wheeler, 97 Mass. 67. Leighton v. Brown, 98 Mass. 515. In • our opinion, the fact that he was dead did not make it so. Assuming for the purposes of the case that the report was in other respects within the exception to the rule against hearsay, and that it would have been admissible to prove that the appraiser did estimate the damage, if that fact had been material, (Kennedy v. Doyle, 10 Allen, 161; Polini v. Gray, 12 Ch. D. 411,) or even to prove what his estimate was, his estimate, however proved, was not admissible to show the amount of damage.

No doubt the actual amount of damage expressed in dollars is theoretically certain, and is a fact. But it is a fact which neither can be observed directly by the senses, when the only question is of the honesty of the observer who makes the entry, nor can be deduced from the facts directly observed by simple mathematical computation, without assuming other facts not the subject of direct observation. Walker v. Curtis, 116 Mass. 98. What a particular man will think the amount of damage may differ widely from the actual amount, and, as experience shows, is likely to differ from the opinion of others, because it will depend not only upon what he sees, but upon a number of other facts which he arrives at by inexact and undisclosed methods. An opinion upon such a question, however honestly formed and by however competent a man, is too remote from the indisputable data of the senses to be admitted without being subjected to cross-examination. See Wright v. Tatham, 4 Bing. N. C. 489, 508, 528; Abel v. Fitch, 20 Conn. 90, 96.

2. The goods were dress goods. It appears that all the contents of three cases, worth not less than sixteen hundred dollars, and varying proportions of them in three other cases, were damaged by salt water and soda ash. We cannot say that a jury would not be warranted in finding, as a matter of common experience, that damage of such a nature to such goods could not be less than five hundred dollars, or somewhat under a third of the value of those goods which were all soaked with the alkali.

'Judgment for the plaintiffs for five hundred dollars.