1. On a suit on a policy of insurance against loss of a stock of
groceries in process of retail sale, by fire, it is competent, in
the absence of trustworthy books and of specific evidence by
persons other than the plaintiffs themselves, to show by witnesses
in the town where the fire occurred, engaged in the same business
with the plaintiffs, and whose annual sales were as large, that
grocery merchants in that city for the six years prior to the fire
had not carried or had on hand at any one time, more than one-fifth
of their annual aggregate sales, and that this was the case on the
day the fire occurred. In other words, to show by the general
course of trade in that branch of business in the town that
Page 78 U. S. 439
the plaintiffs' loss could not have exceeded $24,000 if their
sales during the year amounted to only $120,000.
2. But the witness can testify only to his personal experience
on the subject. He cannot be asked what "the course of trade" was
in regard to this particular business.
In October, 1866, the Home Insurance Company insured, for the
term of one year, against fire, a stock of groceries and other
merchandise owned by C. & J. Weide, and which were contained in
a storehouse occupied by them in the City of St. Paul. In February,
1867, the storehouse and its contents were burnt, and this suit was
brought to recover for the loss of the stock of goods. At the
trial, the main question in issue was the extent of the loss. As
most of the books were destroyed, and the defendants had introduced
evidence tending to show that those which were not burned were not
to be depended on, and afforded no data from which the value of the
goods on hand at the date of the fire could be ascertained or the
extent of loss determined, the case rested chiefly on the testimony
of the plaintiffs. They swore that their sales during the year
preceding the fire were about $120,000, and that the goods on hand
at the time of the fire were worth, at their cost value,
$65,000.
The defendants insisted, on the basis of the sales, that the
loss was greatly overstated, and as one means of proving it offered
to show by witnesses in St. Paul, engaged in the same business with
the plaintiffs, and whose annual sales were as large as theirs,
that grocery merchants in that city for the previous six years had
not carried or had on hand at any one time more than one-fifth of
their annual aggregate sales, and that this was the case on the day
when the fire occurred. In other words, they wished to show by the
general course of trade in that branch of business in St. Paul that
the plaintiffs' loss could not have exceeded $24,000 if their sales
during the year amounted to only $120,000.
The court refused to allow the evidence to go to the jury,
Page 78 U. S. 440
and the correctness of this ruling was the only point in the
case which it was necessary here to consider. In the course of the
trial, however, the defendant asked a witness this question:
"Supposing that the plaintiffs' sales were $120,000 for the year
preceding the fire, as grocery merchants, what average amount did
they carry or have on hand during such year
according to the
general course of business?"
And on objection made to it, some discussion took place below on
the correctness of that question.
MR. JUSTICE DAVIS delivered the opinion of the Court.
Although we agree with Lord Ellenborough "that the rules of
evidence must expand according to the exigencies of society,"
[
Footnote 1] yet it is not
necessary to introduce any innovation upon these rules in order to
hold that this evidence should have been admitted. It is true there
are no reported cases on the subject, but on principle its
admissibility can be sustained.
It is well settled that if the evidence offered conduces in any
reasonable degree to establish the probability or improbability of
the fact in controversy, it should go to the jury. It would be a
narrow rule, and not conducive to the ends of justice, to exclude
it on the ground that it did not afford full proof of the
nonexistence of the disputed fact. Besides, presumptive evidence
proceeds on the theory that the jury can infer the existence of a
fact from another fact that is proved, and most usually accompanies
it. [
Footnote 2] Many of the
affairs of human life are determined in courts of justice in this
way, and experience has proved that juries, under the direction of
a wise judge, do not often err in the reasoning which leads them to
a proper conclusion on such evidence.
Page 78 U. S. 441
And if they should happen to reach a wrong conclusion, the court
has in its own hands the mode and measure of redress. In the nature
of things, the officers of the insurance company were unable, by
any direct proof, to contradict the testimony of the plaintiffs as
to the value of the goods destroyed. If the loss were an honest
one, it was their duty to pay it, but if they had good reason to
believe it to be exaggerated, it was equally their duty to refuse
to pay it. As they had no direct evidence to produce bearing on the
subject, they offered to prove a fact which, uncontradicted and
unexplained, would lead the jury to the conclusion that the
plaintiffs had overvalued the property destroyed by fire. It was
neither opinion nor hearsay which they tendered to the court, nor
was it a usage of trade they wanted to prove, but a matter of fact
concerning the business in which the plaintiffs had been employed
which would render it extremely improbable that they had sustained
the loss they claimed to have suffered. The plaintiffs testified
when the fire occurred, the stock in their store was worth over
sixty thousand dollars, and yet their sales during the year were
only double that amount. The defendants said this could not be so,
because the merchants of St. Paul, engaged in a like business and
to the same extent, did not at that time, nor at any other time
during the preceding six years, have on hand on the average more
than one-fifth of their annual aggregate sales.
If this state of case could be proved by the united testimony of
this class of merchants, it would establish a fact connected with
this kind of business, to-wit, the uniform relation between the
stock on hand and the annual sales, from which the existence of
another fact could be reasonably inferred, which is that the
business of the plaintiffs rested on the same basis and was
governed by the same rule of uniformity. Indeed, so strong would be
this inference that in the absence of any attempt to explain or
contradict the evidence, the jury would be justified in adopting
the conclusion which it tended to prove. A presumption is an
inference as to the existence of a fact not actually known, arising
from its
Page 78 U. S. 442
usual connection with another which is known, and on this
principle the jury should have been allowed to consider this
evidence.
As this case will have to go back for a new trial, and as the
point was raised in the court below, it may be proper to observe
that no witness can be asked what the course of trade is in
reference to this particular business. This would be either opinion
or hearsay. He can only be allowed to tell his personal experience
on the subject about which he is called to testify. It is only
through the aggregated testimony of all the witnesses that the fact
can be proved which so connects itself with the plaintiffs'
business as to require from him an answer.
Judgment reversed and a venire de novo.
[
Footnote 1]
Pritt v. Fairclough, 3 Campbell 306.
[
Footnote 2]
Hart v. Newland, 3 Hawks 122.
