Palatine Insurance v. Santa Fe Mercantile Co.

13 N.M. 241 | N.M. | 1905

OPINION OF THE COURT.

PARKER, J.

— Defendant in error, plaintiff below, suffered a loss by fire in the city of Santa Fe. It was insured by. the several plaintiffs in error and in due time the extent of-the loss was adjusted by representatives of the several insurance companies. Plaintiffs in error failing to pay the- loss; defendant in error brought suit in the county of Santa Fe against the several plaintiffs in error to recover the same. Thereafter the causes were consolidated and the venue changed to San Miguel county. Trial was had resulting in a verdict and judgment for defendant in error. Thereupon plaintiffs in error bring the cause here.

1 Defendants below complain of the exclusion by the court of the question: “State whether or not it was common talk in Santa Fe, after the fire, about what you and these other boys had seen that night.” The wit- ' . ness had been asked on cross-examination as to his connection with a detective or representative of the insurance companies who was investigatnig the origin of the fire with a view to establishing its incendiary character, and whether or not he had sought out this representative and offered his testimony and assistance to obtain other evidence in defendant’s favor, in view of a certain reward 'offered by or in the interest of defendants, all.as reflecting on the witness’ credibility. He denied all -knowledge of the reward and denied that he had sought the detective, and admitted he had communicated his'knowledge of the facts. Then the above question was asked in rebuttal and excluded. The ultimate question was as to the bias or interest and consequent credibility of the witness; the evidentiary fact in support thereof was that the witness had sought the detective, or had been sought by him. The witness denied that he had so sought the detective and in support of his denial the foregoing question was asked.

The most that can be said for this proposed proof is that it tended to establish a source of information upon which the detective may or may not have acted. Whether the detective knew of the rumor and did or did not act upon it, is left as a matter of mere conjecture. The proof, therefore, is not logically or legally relevant to the fact sought to be established, and was properly excluded. It is also hearsay and does not fall within the exception permitting hearsay in matters of a public and general interest.

2 A witness for defendants below testified that another witness, both bystanders, had cried out at the beginning of the fire: “Look the -- is trying to get out of the store.” He referred to a supposed person within the building, believed to be setting the same on fire. The fact of the outcry being made by this bystander went unchallenged by the plaintiffs below throughout the trial. This renders it unnecessary to discuss the admissibility of exclamations of bystanders and the proper limitation upon the same, and renders harmless, even if erroneous, the ruling of the court in excluding other proof of such exclamations.

3 The president of the plaintiff corporation testified, as other witnesses had, that the fire started in a rear room of the store called the Millinery Koom.; that in his judgment it was not necessary or proper to remove the goods from the front part of the store at that time, believing the fire could be kept within the millinery room, and that he, consequently, made no attempt to remove the goods; that afterwards .when' the so-called second fire broke out in the front part of the store it was so fierce as to prevent the removal and none was attempted. This was an admission that at the time when the goods could have been removed the plaintiff made no attempt to do so for reasons satisfactory to it. This admission renders harmless the exclusion of the proof offered as to the feasibilty of the removal of the goods in the front part of the store before the fire reached them.

4 Defendants below offered in proof the contents of a printed and posted offer of reward for the apprehension and conviction of the person who set fire to the store, which offer was excluded as not the best evidence. The notice was defendant’s notice and no fact was offered to show 'why an original of the same could not be produced. This rendered secondary evidence of its contents incompetent and the proof was properly excluded.

5 Defendants below offered to prove on cross-examination of one Gusdorf, the president and manager of the plaintiff corporation, that in 1897 he stated to one Dolan, his then partner, that they could never get out of their then financial difficulties and they had better put several thousand dollars-more insurance on their stock of: goods; that thereafter Dolan sold out his interest in the business to Gusdorf and thereafter in December, 1898, the goods were destroyed by fire; and by the witness Akers, that at the time of said fire Gusdorf was engaged in a game of cards, as he also was on the occasion of the fire in question in this case. The proof was excluded as too remote and irrelevant. This raises the question as to how far the proof of other fraudulent or criminal acts of .a-person may be shown, within the limits of relevancy, as tending to establish the principal fact charged against him.'

It is of course generally inadmissible to prove the commission of a similar but distinct crime, for the purpose of raising the inference that the. accused committed the act charged. But where such evidence tends to establish motive, intent, the absence of mistake or'accident, a common scheme or plan embracing the commission of two or more crimes so related to each other that the proof of one tends.to establish the other or tends to identify the persons charged, it becomes admissible for such purpose. If the proof offered in this ease be admissible it must be because if tends to establish a common plan or scheme to commit frauds upon the insurance companies. It is to be noticed that the alleged conversation with Dolan occurred two and one-half years, after the former fire one and one-half years, before the fire in question; that no proof was tendered that the former fire was in fact incendiary in character, or that the proposed increased insurance was in excess of the insurable value of the goods. How then can it be said that-those extraneous facts tend to establish a general plan or scheme to defraud the insurance companies? The transactions were entirely separate in time, place and circumstances. The proof of the incendiary character of the former fire, entirely lacking here, would in no way tend t-- show the fire in question here was a part of the plaintiff’s scheme or plan at that time. It might show a vicious disposition on the part of Gusdorf, but this is not admissible in proof of guilt. “There must appear between the extraneous crimes offered in evidence and the crimes of which defendant is accused some .real connection beyond the allegation that they have both sprung from the same vicious disposition.” State v. Raymond, 53 N. J. L. 260; see also Mutual Life Ins. Co. v. Armstrong, 117 U. S. 591; Bank.v. Hatcher, 94 Va. 231; People v. Molineux 160 N. Y. 264; 62 L. R. A. 193, and note; State v. Graham 121 N. C. 623; Com. v. Bradford, 126 Mass. 42. We have not sought to draw any distinction between crimiinal and civil cases in the discussion of this point, for, if the evidence is relevant, it must be equally admissible in either. The action of the court below was correct. ■

6 Plaintiff below in reply to defendant’s case in chief proved that three of the witnesses for the defendant to seeing the setting of the fire by Gusdorf, were at a dance about ten o’clock p. m., and remained twenty to thirty minutes, - and were somewhat drunk, and for that reason plaintiffs’ witness would not permit them to dance. In rebuttal defendants offered to prove that these three witnesses were at a dance and were not drunk. The fire started at 11:30 p. m., about one hour after the three witnesses left the dance. The proof of drunkenness was offered for the evident purpose of impairing the credibility of the three witnesses, who were the most important witnesses for the defendants as to the character of the fire. The question excluded was as follows: “Lid you see Beniano Muniz, Ascención Rael and Pedro Ortiz at that dance?” After objection sustained, counsel stated: “Counsel for defendants states the purpose of the question directed to this witness is to rebut the evidence of the witness Pacheco and other witnesses who have attempted to testify that these men were drunk that night, and especially the witness Henry Pacheco who stated that they were at the dance and too drunk to dance.” It is to be seen that the question asked was probably a mere preliminary one and in itself can not be said to call for evidence which ■would throw' any light on the question .of the drunkenness of the witnesses. Counsel in his statement of the object of the examination did not state that he proposed to show' by the witness that the three persons were at the dance and were not drunk. Nor did he follow up the ruling by another question showing that intention. He merely stated that the specific question asked was relied on to rebut the evidence of drunkenness, which it clearly did not do. He thus failed to put'the court in the wrong so that the ruling can be reviewed here. It is necessary to prevent' any question on appeal, to state specifically the facts which counsel expects to show in answer to the question propounded. 2 Elliott on Evidence Sec. 886. The error, .therefore, if it was error, is not reviewable.

7 What may be called an alibi, so far as being personally present and instrumental in setting the fire in question, was established for G-usdorf by several witnesses who were engaged in a card game prior to and at the time of the alarm. In addition thereto *the deposition of one Ilaynolds was read to the same effect over the objection of defendants. The objection was based on the fact that between the time of the order of the district court of Santa Ec county changing the venue of the causes, and the time of the filing of the transcript and papers in the district court of San Miguel county, the commission to take the deposition was sued out in the former court. No objection was made at the time and the defendants filed cross-interrogatories which went out with the' commission. The commission was duly returned and filed more than one day before the trial begun. Section 304-7 C. L. 1897, seems to be a sufficient answer to the obieetion. The taking of the deposition includes all of the stens necessary to obtain the testimony of the witness and includes the issuance of the-commission. Besides, the joinder in the pro-ceeding and the submission of cross-interrogatories amounts to a waiver of the objection. 13 Cyc. 1025.

8 Defendants below complain of the admission of evidence concerning the value of the assets of plaintiff at the time of' the fire, the loss having been adjusted prior to the suit. But this was only in reply to proof offered by defendants as to the financial condition of the concern. This was evidently offered by defendants as reflecting upon the probable character of the fire and it was proper for plaintiff to show its solvent condition, not as affecting the amount of recovery, but as rebutting the inference of the fraudulent character of the loss.

9 There is no merit in the 13th. assignment of error, as the objectionable testimony was elicited in cross-examination for the purpose merely of testing the witnesses sincerity and honesty. He had testified to the harmlessness of certain substances used in a chemical engine, and was then asked if he had heard Doctor Sloan state there at the fire, or some one in his presence, that the same was dangerous to the persons in the building, and if so why he did not correct such statement or opinion at the time.

The 14th, 15th and 16th, assignments, raise questions as to some ruling, perhaps involving technical error, still the testimony elicited was of a trivial character, and could not have changed the result. The}7 do not seem to be relied upon in the brief.

10 The 17th and 18th assignments relate to the denial by the court of the right to defendants to open and close the case to the jury, as is granted by Section 2990, C. L. 1897. The test is that the right belongs to the party against whom judgment would be rendered if no evidence were introduced on either side. 15 Encv. P. & Pr. 184. L. O. N; Bank v. Judson, 122 N. Y. 278; 1 Thomp. on Trials, Sec. 229. Applying this test it is clear from the record that plaintiff below had the right to open and close. The admission of facts during the progress of the trial by defendants was merely evidence and did not shift the right to open and close to them.

11 Objection was made to the introduction of the articles of incorporation of plaintiff below, first, because the same was not a corporation authorized by Section 1889, R. S. IT. $., authorizing corporations for “mining, manufacture .or other industrial pursuits,” and, second, because the articles of incorporation were not filed with the Recorder of Santa Fe county. As to the first ground, counsel concedes that a mercantile business has been held to be an “industrial pursuit” and does not insist on the objection. A sufficient answer to the second objection is found in the fact that the defendants dealt with plaintiff as such corporation and are estopped to deny its legal existence. Andes v. Ely, 158, U. S. 312, 322.

12 Objection was made to the introduction of the policies of insurance on the ground that it appeared that they had been assigned to various creditors of the plaintiff below, before action was brought and, consequently, plaintiff was not the real party in interest. This objection was not available, it not having been raised by demurrer or answer. 15 Ency. P. and Pr. 713; Bank v. Gilpin, 105 Mo. 21; Loan and Trust Co. v. Brown, 29 Mo. Ap. 466; Spooner v. R. R. Co. 115 N. Y. 30; Wakeman v. Norton (Col.) 49 Pac. 283; Pomeroy Rem. & Rem.. Rights, Sec. 711.

For the same reason the request to instruct the jury to find for the defendants below on the ground that plaintiff was not the real party in interest was properly denied.

13 Objection is made to the 7th instruction given by the court on the theory that it directed the jury that the burden of proof shifted to defendants below on the whole case. An examination of the instructions shows, however, that the court informed the jury that the burden was on the defendants only as to their affirmative defense of the fraudulent burning by the plaintiff.

14 Objection is also made to the third and eighth instruction for the reason that they fail to define the issues in the ease, and, in the third instruction the pleadings are submitted to the jury with direction to ascertain from them what allegations are admitted and what denied.

Where any obligation rests upon the court to instruct the jury as to the law of the case it is probably true that the jury may not be referred to the pleadings to ascertain the issues. It is the duty of the court to state them. But under our Code of Civil Procedure no obligation rests upon the court to instruct the jury unless requested. Sub-Sec.128 of Sec. 2685, C. L. 1897. This section is copied from the Missouri Code, Sec. 2188, R. S. Mo. 1889, where it has been likewise held that no obligation rests upon the court in a civil case to instruct the jury unless requested. Farmer v. Farmer, 129 Mo. 530. No complaint is made that the instructions are erroneous but rather that they are incomplete. It was non-direction and not misdirection. See also on this subject 1 Blashfield Ins. to Juries, Sec. 127; 2 Thomp. on Trials, Sec. 2341. In the latter it is said: “It is, then, a general rule of procedure, subject, in this country, to a few statutory innovations, that, mere non-direction, partial or total, is not ground of new trial unless specific instructions, good in point of law and appropriate to the evidence, were requested and refused.” See also Stuckey v. Fritsche, 77 Wis. 329, Womack v. Circle, 29 Gratt. (Va.) 208.

It may be well to notice that this is a departure from the requirements of the former statute, section 2992, C. L. 1897,- and the decisions of this court thereunder the same being no longer operative in this regard since the adoption of the Code.

Defendants below, therefore, should have requested such further instructions as would present the ease more fully, and to their satisfaction.

This disposes of all of the assignments of error and as we find no reversible error in the- record the judgment of the court below will.be affirmed, and it is,so ordered.

Ira A. Abbott, A. J., Edward A. Mann, A. J., concur. Mills, C. J., having tried the case below and MeFie and Pope, A. J., did not participate in this decision; Pope, A. J., having been of counsel.