Guardian Fire Ins. v. Central Glass Co.

194 F. 851 | 5th Cir. | 1912

In No. 2,218.

PARDEE, Circuit Judge.

The first assignment of error, relating to the exclusion of the evidence of Joseph G. Weckerling, is not well taken: (1) Because the bill of exceptions does not show that the ratio between the cost of labor and the cost of material, either in said Weckerling’s business or normally in such line of business, was material to any issue in the case. (2) The ruling of the court excluding the evidence of witness’ individual experience in relation to ratio of labor to material in carrying on the glass business for his own account was correct.

The second assignment of error, complaining of the refusal of the trial judge to permit Mr. St. Paul to testify to what Mr. Marcuse, former president and bookkeeper, testified, in a previous case in a state court, as to what the books of the Central Glass Company showed as profits of 1907, is not well taken, because the bill of exceptions does not show that such matter was either relevant or material to any issue in the case.

[ 1 ] The third assignment of error complains of a certain portion of the charge of the court; but the bill of exception shows no'issue or state of facts for us to judge whether the matter complained of was relevant or material, or in any wise bore on any oí the issues in the case. .If we look into the pleadings, and find an issue as to whether the plaintiff presented and kept complete and itemized inventories as provided For iti the contract, and that the claim is made that an entry of “Salvage glass, $2,500,” is not a sufficient itemizing under the contract for such a quantity of broken glass and then assume, as counsel do, that there was evidence showing or tending to show that the inventory presented by the plaintiff contained the gross item of “Sal-^ \age glass, $2,500,” and that the same was made up of glass which* could have been classified and itemized with more particularity, and thus furnish a better idea of the quantity and] value of the glass included under the item, still we find no reversible error, if error at all, in the definition the trial judge in his charge gave of the words “a complete, itemized inventory,” as used in the iron safe clause in the policy in suit.

[2] The fourth assignment of error relates to the separation of the jury before verdict, which was a matter wholly within the control of the court below, and upon which no error can be predicated, unless based upon misconduct adversely affecting a fair trial. As we read the bill of exceptions, there was no unauthorized separation of the jury.

[3] It was not error to allow interest on the judgment from the date of verdict and judgment. C. C. La. art. 1938; C. P. La. art. 554.

In No. 2,258.

The claim for statutory interest of 5 per cent, from judicial demand was correctly refused by the court below.

[4] Act No. 168 of 1908 was not intended to have, and cannot have, any retroactive effect, and therefore cannot he applied in this case, where the policy sued on was issued prior to the passage of said act.

The judgment of the Circuit Court is affirmed, with costs, on both writs of error.