Insurance Company v. Weide (78 U.S. 438)

ERROR to the Circuit Court for the District of Minnesota; the case was thus:

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, 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. E. A. Storrs, for the plaintiff in error; Mr. W. H. Peckham, with a brief of Mr. L. Allis, contra.

Mr. Justice DAVIS delivered the opinion of the court.