123 Va. 88 | Va. | 1918
delivered the opinion of the court.
Fardis & Boudouris were the owners of a large brick building in Hopewell. While a fire was raging there on the 9th of December, 1915, this building was destroyed by explosives in an effort to check the progress of the flames. Fardis & Boudouris brought this action against E. I. DuPont de Nemours and Company, alleging, in their first count, that the defendant, by its agents and servants, wrongfully and unlawfully entered and blew up the building, and, in their second count, that the defendant, by its agents and servants, wrongfully and unlawfully, took possession of the building, depriving plaintiffs of its control, and, that, while in the control of the defendant, it was blown up and destroyed. '
There was a verdict and judgment below in favor of the defendant, and the plaintiffs assign error.
The fire in question destroyed a large part of the town. The water supply and. other fire-fighting facilities were
It does not appear how “the DuPont policemen” were appointed, what were their duties, or whether they were on duty a.t all at the time of the fire. There is no proof whatever that they were acting under either express or implied authority from the defendant. It does not even appear that the property of the DuPont Company was in danger. One witness testified that the fire, which had changed its course a time or two, was burning in the direction of the defendant’s plant at the time of the destruction of the building in question, but there was other propel ty between the latter and the plant, and the evidence fails to disclose the distance to the plant, or that this intervening property was so situated as to become, in case it caught fire, a source of danger to the defendant’s property.
The defendants objected to The evidence of the acts and conduct of the persons wearing DuPont uniforms unless it
This action of the court, which forms the basis of the principal assignment of error and gives rise to the controlling question in the case, was in our opinion free from error.
There was no proper foundation for the admission of the evidence which the court excluded, and it might have properly been kept out of the case entirely until the authority and agency of the so-called DuPont policemen had been made to appear. The order of proof, however, not being material, the court, in the exercise of its discretion, permitted the evidence in question to be introduced on condition that the defendant should thereafter be connected with it, and when that-condition failed, it was proper practice to exclude the evidence from the jury. The question was not one of weight, but of admissibility.
It is earnestly contended that the court, in any event, ouaht not to have gone so far as to strike out the evidence with reference to the destruction of the building. There
The other assignments of error have been carefully considered. With one possible exception, their materiality de^ pended wholly upon the ability of the plaintiffs to connect the defendant with the destruction of the building, and, with that possible exception, none of them involved an offer to prove anything in aid of that vital requirement. This exception, if it be one, is found in the fourth assignment, which complains of the action of the court in refusing to allow a witness to answer the following question: “About the period of this fire in December, 1915, did not the DuPont police force assist in the government of the city affairs ?” In the absence of any kindred issue in the case, we are unable to perceive how either an affirmative or a negative reply to this inquiry could have availed the plaintiffs anything, but if we assume that they intended to develop the inateriality of the question by further evidence, the record fails to disclose by avowal or otherwise what answer the witness would have made, or what knowledge he had on the subject, and this in itself is fatal to the assignment. Lynchburg Cotton Mills v. Rives, 112 Va. 137, 142, 70 S. E. 542; Burks’ Pleading and Practice, page 515, section 283.
Having reached the foregoing conclusions, it becomes unnecessary to discuss the defendant’s further contention that the plaintiffs’ property would, as a necessary result of the course and extent of the fire, have been destroyed thereby, if it had not been previously dynamited.
We find no error in the .judgment, and it must be affirmed.
Affirmed.