411 N.E.2d 638 (Ind.App. 4 Dist. 1980), 3-1279A355, Smith v. Insurance Co. of North America

Docket Nº3-1279A355.
Citation411 N.E.2d 638
Party NameRonald SMITH, d/b/a Smith's Trailer Sales, Appellant-Defendant, v. INSURANCE COMPANY OF NORTH AMERICA, Appellee-Plaintiff.
Case DateOctober 21, 1980
CourtCourt of Appeals of Indiana

Page 638

411 N.E.2d 638 (Ind.App. 4 Dist. 1980)

Ronald SMITH, d/b/a Smith's Trailer Sales, Appellant-Defendant,

v.

INSURANCE COMPANY OF NORTH AMERICA, Appellee-Plaintiff.

No. 3-1279A355.

Court of Appeals of Indiana, Fourth District.

October 21, 1980

Page 639

John J. Lorber, May, Oberfell, Helling, Lorber, Campiti & Konopa, South Bend, for appellant-defendant.

R. Kent Rowe, Paul M. Oleniczak, Robert C. Douglas, Jr., Rowe & Laderer, South Bend, for appellee-plaintiff.

CHIPMAN, Judge.

This appeal arises from a negligence action wherein Insurance Company of North America, (North America) as subrogee of its insured, Basil Metz, d/b/a Tredit Tire Company, (Tredit) sought judgment for damages allegedly caused by an employee of defendant-appellant Ronald Smith, d/b/a Smith's Trailer Sales (Smith). The complaint charged Smith's employee with negligently starting a trash fire and permitting it to spread to Tredit Tire's property, damaging its building. A jury verdict was returned against Smith for $45,000.

On appeal Smith asserts the trial court erred when it: (1) gave plaintiff's tendered instruction on the doctrine of res ipsa loquitur, (2) refused to give one of defendant's tendered instructions, and (3) denied Smith's motion for judgment on the evidence at the close of plaintiff's case.

Judgment affirmed.

  1. Res Ipsa Loquitur Instruction

    At trial, North America tendered an instruction on the doctrine of res ipsa loquitur which was given by the trial court. 1 Smith

    Page 640

    does not attack the substance of this instruction by arguing it incorrectly states the law on res ipsa loquitur except in so far as it does argue the instruction should not have been given because it is mandatory in nature. Rather than objecting to the form of the instruction, the crux of Smith's argument is that a res ipsa loquitur instruction was improper because (a) a Tredit employee had knowledge of the cause of the fire which destroyed Tredit's building as well as the material facts and circumstances surrounding the fire, and (b) Tredit's employee's knowledge of the situation was superior to the knowledge of the defendant's employee. We reject appellant's arguments regarding the impropriety of giving this instruction.

    The record discloses that on December 1, 1975, Jack Craycraft, an employee of Smith's Trailer Sales, decided to burn the trash which had accumulated in the trailer sales office. The testimony showed it was customary for Smith to burn trash either in a trash pit or a barrel beside the pit, both of which were located approximately ten feet from a wire fence demarcating the property line between Smith and Tredit. Mr. Craycraft testified the trash barrel was nearly full of ashes, tin cans, and other refuse left from previous fires; he, nevertheless, placed trash in the top of the barrel, lit the trash, stood beside the fire a short time, and then moved back and watched the fire from the office porch. Shortly thereafter, the phone rang, and Mr. Craycraft indicated he went into the office to answer the phone and never again looked outside to check the fire's progress. All the witnesses agreed it was a cold, windy day.

    It appears from the record that in the course of Tredit Tire's business, it often received mag wheels in cardboard boxes, and these boxes were periodically burned for Tredit in Smith's trash pit. The evidence was conflicting, however, as to whether there were wheel cartons in the trash pit beside the barrel on December 1, 1975. The evidence was not, however, in conflict that on the day in question, there was a tier of used tire casings approximately eighteen feet long stacked along the wire fence between the two properties. Tredit ordinarily stacked casings against its building and also along the fence. Since Tredit's building was approximately ten feet from the property line, there was room for two rows of tires next to its building, then a small path divided these tires from the row next to the fence. On December 1, 1975, there were between 250 and 350 tire casings stacked in this area waiting to be removed.

    Michael Dines, Tredit's manager, testified that immediately before the fire was discovered, he was installing snow tires for a customer when the customer mentioned smoke was blowing by the...

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