205 F.2d 637 (9th Cir. 1953), 13231, Fegles Const. Co. v. McLaughlin Const. Co.

Docket Nº:13231.
Citation:205 F.2d 637
Party Name:FEGLES CONST. CO., Limited et al. v. McLAUGHLIN CONST. CO.
Case Date:June 11, 1953
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 637

205 F.2d 637 (9th Cir. 1953)

FEGLES CONST. CO., Limited et al.



No. 13231.

United States Court of Appeals, Ninth Circuit.

June 11, 1953

Page 638

Leif Erickson, Helena, Mont., Walker B. Davis and Richard A. Barton, Chicago, Ill., for appellants.

J. F. Emight, Butte, Mont., John Merriott Kline, Glasgow, Mont., for appellee.

Before MATHEWS and STEPHENS, Circuit Judges, and BYRNE, District judge.

BYRNE, District Judge.

All of the parties are contractors who were engaged in construction work at Fort Peck Powerhouse on July 16, 1947, when a fire occurred which resulted in damage to property of appellee McLaughlin.

McLaughlin was building an addition to the powerhouse under a contract with the United States Government. Appellant Fegles was performing certain construction work under a contract with the United States Government, which included the installation of three surge tanks on top of the powerhouse. The installation of the surge tanks had been sublet by Fegles to appellant Chicago Bridge.

The trial court found that the fire was caused by the acts of the workmen installing the surge tanks who, 'in doing and performing said work, negligently and carelessly permitted red hot rivets to escape and drop from the place where defendants were erecting, setting up and installing said three

Page 639

steel surge tanks, and into and upon the said wood forms, timbers, scaffolding and lumber of the plaintiff', and that 'the said defendants knew or by the exercise of ordinary care should have known, that red hot rivets had been repeatedly dropped and permitted to escape from their place of operations and into and upon the wood forms, timbers, scaffolding and lumber of the plaintiff, and that plaintiff's aforesaid wood forms, timbers, scaffolding and lumber had been repeatedly set on fire by such red hot rivets', and that the defendants failed to take any precautions to prevent the repeated dropping of red hot rivets.

These findings are attacked on the ground that the evidence is insufficient as a matter of law to support them; that a substantial portion of the evidence relied upon is circumstantial and subject to the rule that if the conclusion reached from the facts in the chain of circumstances is equally consonant with the issues to be proven and with some other theory or theories inconsistent therewith, it becomes a mere conjecture, and the rule of the burden of proof is not satisfied, citing Shaw v. New Year Gold Mines Co., 1937, 31 Mont. 138, 77 P. 515. 1

This is a correct statement of the law, not only in Montana but in most, if not all, jurisdictions. However, it does not alter the general rule that in civil cases a preponderance of the evidence is sufficient to establish the fact in issue. While the plaintiff must show that the inferences favorable to him are more reasonable or probable than those against him, the circumstantial evidence in civil cases need not rise to that degree of certainty which will exclude every other reasonable conclusion. 2 The rule itself is operative chiefly in the trial court and does not detract from the established principle that when a finding is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether, considering the whole record, there is substantial evidence which supports the conclusion reached by the trier of fact. When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court.

The evidence here not only supports the inference that the fire was caused by hot rivets, but it attains a greater degree of certainty than demanded by the rule, as it excludes every other reasonable hypothesis. The appellants suggest, as the cause of the fire, the possibility of arson, spontaneous combustion, a lighted cigarette or a...

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