Weaver v. Ala. Coal Mining Co.

Jun 15, 1859

Reporters:
Before:: Walker

A. J. WALKER, C. J.

After the collision with the defendant’s boat, the plaintiff’s cotton was put upon it, and carried to Mobile. The plaintiff’s factor paid the *181officer of the steamboat one thousand dollars, which was reimbursed to him by the plaintiff. There was, therefore, a seeming acquiescence by the plaintiff’ in the payment by his factor of one thousand dollars, as a compensation for taking on board and transporting to Mobile the cotton which had been wrecked by the collision with the defendant’s boat. This suit is predicated on the idea, that the wreck of the boat, freighted with the plaintiff’s cotton, was produced by the negligence of the officers and crew of the defendant’s boat. Upon this idea, the boat was simply repairing, to some extent, an injury wrongfully done, when it took the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍cotton from the wreck, and carried it to its ‘destination. The unexplained fact of the payment to the steamboat would afford ground for the argument, that the plaintiff had, in effect, acknowledged that the wreck was not caused by the misconduct of the officers and crew upon the defendant’s boat. Eor it might be argued, that the plaintiff would not so largely compensate a wrong-doer, for acts which merely contributed to repair the injury done. The evidence from which that argument might have been drawn, was necessarily brought out by the plaintiff, in showing the damage sustained. Anything which tended to meet and defeat that argument, was relevant evidence. Testimony that, at the time of the payment of the thousand dollars, it was agreed that the plaintiff’s right to recover damages should be left to legal decision, would, in the point of view above indicated, be admissible; for it tended to show that the payment of the thousand dollars, viewed in the light of attending circumstances, did not involve an admission that the wreck was not produced by the misconduct of those who had the defendant’s boat in charge.

In like manner, the payment of salvage, or the recognition of a right to it, would conduce to show an acknowledgment inconsistent with the allegation that the plaintiff’s injury was caused by the wrongful act of the defendant’s employees. It was, therefore, permissible for the plaintiff’ to prove, that the payment of the thousand dollars was not on account of salvage, and that he did not recognize any right to it.

*182[2.] The witness Marshall answered to the defendant’s second cross-interrogatory: “I paid no ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍salvage, but paid fil,000, under protest, to get possession of the cotton. More was exacted, to-wit, ten dollars per bail. The claim of salvage, damages, ¿>c., was to be left to legal decision.” The last clause, putin italics, was excluded, on the defendant’s motion. Viewing this clause in connection with the interrogatory, we understand it as asserting, that it was understood, or agreed, or said, that “the claim of salvage, damages, &c., was to be left to legal decision.” The interrogatory contains questions inquiring why the witness did not pay as much as was required by the agent of the boat; whether there was not an arrangement that the plaintiff should pay so much, and leave the balance for adjustment; and whether there was not some arrangement made as to the balance of salvage, or some understanding about it; and the witness is directed to state what the arrangement was, and all about it. To those questions the excluded clause was manifestly responsive, and, considered in reference to them, has the meaning above stated. The evidence, having that signification, ought not to have been excluded. It tends to show that, at the time when the thousand dollars were paid, the claim of salvage, and the claim of damages, were left open for the arbitrament of the law ; and having that tendency, was, for reasons above stated, relevant. The evidence being relevant, and having been brought ,out by the defendant’s interrogatory, the court erred in excluding it on the defendant’s objection. — Furlow v. Merrill, 23 Ala. 705 ; Edgar v. McArn, 22 Ala. 796.

[3.] The captain, mate, and engineer of the defendant’s steamboat, appear to have been ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍duly released by the defendant; andthey were thus made competent witnesses. Their interest was altogether in favor of the defendant, and could, therefore, be released by the defendant.

[4.] The witness Brantley did not even pretend that he had seen the cotton here in controversy; and although, on two occasions remembered by him, he had examined other cotton which had ‘been sunk, he did “ not know how long the cotton he had examined had been in the. *183water.” Upon such a predicate, the plaintiff had no right to ask him, ‘how much an ordinary bale of cotton would, in his opinion, be injured or damaged by being submerged in water from twelve to twenty-four hours.’ Gilmer v. City Council of Montgomery, 33 Ala. 116. The witness had neither knowledge, nor the means of knowledge, as to the extent to which an ordinary bale of cotton would be injured or damaged by submersion for the period of time specified in the question. A rule which would admit his opinion, responsive to the question, would admit the opinion of every person who had ever examined a submerged bale of cotton, although without any knowledge of the duration of its submersion. The action oí the court in sustaining the objection to the question, is free from error. A witness cannot testify respecting a fact, of which he has neither knowledge, nor the means of knowledge. — Hiester v. Laird, 1 Watts & Serg. 245. Upon like reasoning, we hold, that there was no error in sustaining the objection to the question to S. M. Hill.

[5-6.] The mate of the steamboat, who was in command at the time of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the collision, was permitted to testify, “that if the flat-boat had had on her a proper light, so as to have enabled the steamboat to have discovered it, the collision would not have occurred.” The admission of this testimony is the point of an objection by the plaintiff. Considered as the declaration of an eye-witness, it involves the assertion, that there was not a proper light upon the flat-boat, and that with such a light upon the flat-boat the collision would have been prevented. What the witness swears, cannot be true, if either of those assertions is false. It was permissible for this witness to state whether there was a proper light upon the boat. He saw the boat before the collision occurred, and had an opportunity to know whether there was a light upon the boat, and if so, what was its character. It may be, that there was an expression of opinion as to what constituted a proper light; but if so, it would not make the testimony objectionable. The witness had been engaged in running steamboats, as mate, and in other capacities, for nine or *184ten years, and four years of that time on the Alabama river. This experience was sufficient to qualify him to testify, as an expert, as to what constituted a proper light ■upon the boat. — Gilmer v. City Council of Montgomery, 33 Ala. 116; McCreary v. Turk, 29 Ala. 244.

The other branch of the testimony, “ that the collision would not have occurred,” was not admissible evidence. It does not bring to view a matter for the opinion of an expert. . It may be ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍that the testimony would have been admissible, if it had stated that the collision might or could have been averted. But it goes farther, and asáerts that it would not have occurred; and, in doing so, asserts that every man, upon whose exertions an avoidance of the collision depended, would have had the will to put forth these exertions. This is not the subject for an expert’s opinion.

The evidence was admissible for the purpose of showing that there was not a proper light upon the boat, but inadmissible for the purpose of showing that, in the opinion of the witness, the collision would not have occurred. We cannot decide that the court erred in overruling the objection to the entire evidence.

For the error pointed out, the judgment of the court below is reversed, and the cause remanded.