Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1913-02-12
Supreme Court
In the Supreme Court, october Term
1912. -


destroyed PLAINTIFFS grain, the testimony
effect that one w. a stranger to the suit,
caused such grain to be insured in his
name and nat after the fire he collected
the insurance thereon, all of which facts
took' place without plaintiffs knowledge
or consent, was inadmissable and prop
erly excluded. 7n14
2. Instructions defining negligence n
ordinary care, examined n Held, Nom
prejudicial.
s. Certain Instructions were improperly
given relative to a matter regarding
which there was 10 basis in the evil
dence. Held, That the giving of such in
structions could not have misled the jury
and were non-prejudicia,.
(Syilabus by the Court.)
Appeal from districtc court of Morton
county, Crawford. special Judge.
From a judgment in plaintiffs favor
and from an order denying a motion for
a new trial. defendants appeal.
Affirmed. Opinion bv Fisk, j.
w. Fl. Stutsman for appellant.
E. W. Shaw for respondent.
In the Supreme Court, State of North
, Dakota, October Term. \
Leroy Seckerson, plaintiff and respond
ent, VS.. William Sinclair, defendant
and appellant.
]. In an action to recover damages for
injuries occasioned by a fire alleged in
one count Of the complaint to have been
negligently set by the defendant. and in
another to have been %negligently allowed
by him to spread from his and to that
of the. plaintiff, it is not error in the
trial court to refuse to exclude evidence
under the complaint on a motion made
upon the trial on the ground that the
said complaint nowhere described any
which it was alleged that the fire es-
capped or spread"
2. Where a witness gives the results Of
what he saw, his testimony is not OBJ
jectionable on the ground that it is a
conclus on rather than a statement Of
facts.
3. 1t is not error to allow the owner
of farm machinery and of household fur
niture destroyed in a fire, to testify in
answer to the question, what was the
furniture worth"' even though no foun-
dation was laid for such testimony ex-
ccpt the fact Of ownership.
T.. Where plaintiff sued to recover dam
ages for loss Of farm machinery and
household furniture destroyed by fire, and
the court enormously allowed testimony
to be introduced as to 'thc difference
in the value of the land for growing
grass of a certain character testified to
after the fire had passed over it, COM
pared 70 what it was just before the
fire." but in his Instructions to the jury
plainly and clearly told such jury not
to regard any such testimony or to al
low any damages whatsoever for the in
pacity of the land, the Introduction of
such. testimony is deemed cured by the
instruction, and lot prejudiciar.
5. 1t was not error to allow a carpen-
ter and builder who had been in the
general carpentering and building bust
ness for nineteen years in a city within
twenty miles of a country district, to
testify as to the general value and cost
of building materials and labor connect
ed Herewith in relation to the construc-
ton of buildings in such district.
6. The plaintiff in chief testified that
the barn was thirty-two by forty feet,
ten inch ship lap. 1t was a seven foot
barn, and raised up nine feet in front,
and the roof was ship lap and in the
northeast corner l had it partitioned off
for a granary about ten feet square in
the northeast corner Of the baEn." A
hypothetical question was asked of a wit
ness as follows: :"Now, referring to the
barr described by Mr.. Seckerson, apply
ing your knowledge of going prices Of
lumber in March, 1910, your knowledge
of the cost Of carpenter work and Of
building material generally at that time,
what was the value of a barn thirty-two
feet by forty feet, sided with ten inch
ship lap, ship lap roof, with a granary
sixteen feet by sixteen feet within it in
one corner, foored?" This question was
objected to on the ground that it did
not refer to the building in question. nor
to the time set out in the pleading. Held,
That there was no error in permitting
such question to be answered.
z. Where a hypothetical question is
based upon testimony formerly admitted,
and substantially and in general con-
forms to such testimony, but is object
ed to on the ground that in some partic-
ulars 1t varies therefrom the particulars
of such variation should be pointed out
by the objector, and an objection that 1t
is incompetent, irrelevant and inmate
rial, or lnat 1t does not describe the
building set out in the complaint, is not
sufficient. Especially is this the case
where the variance. If any. could have