Auchincloss v. Halloran Const. Co. of R. I.

• Citation: 105 R.I. 565,253 A.2d 622
• Decision Date: 21 May 1969
• Docket Number: No. 538-A,538-A
• Parties: Hugh D. AUCHINCLOSS v. HALLORAN CONSTRUCTION CO. OF RHODE ISLAND. ppeal.
• Court: United States State Supreme Court of Rhode Island

Page 622

253 A.2d 622

105 R.I. 565

Hugh D. AUCHINCLOSS v. HALLORAN CONSTRUCTION CO. OF RHODE ISLAND.

No. 538-Appeal.

Supreme Court of Rhode Island.

May 21, 1969.

[105 R.I. 572] Albert Lisker, Milton Bernstein, Providence, Patrick O'N. Hayes, Newport, for plaintiff.

Martin M. Zucker, Providence, for defendant.

OPINION

PAOLINO, Justice.

This is a civil action to recover damages for the destruction of a windmill by a fire cause by the defendant's negligence. The cause was heard before a justice of the superior court sitting without a jury and resulted in a decision for the plaintiff in the amount of $1,212 plus interest and costs. The case is before this court on the plaintiff's appeal from the judgment entered on the basis of the trial justice's decision. The grounds of the appeal are that the trial justice committed prejudicial error in excluding certain testimony and that he erred in finding that the plaintiff failed to prove the value of the windmill at the time of the loss by a fair preponderance of the evidence.

The pertinent facts follow. On October 27, 1965, plaintiff was the owner of a large estate in the city of Newport known as 'Hammersmith Farm.' Among the various buildings on the estate was a wooden windmill which was about 100 years old. Prior to the installation of the Newport water system, the windmill was used to pump and store water for the estate and for a certain period of time thereafter it was used as an emergency water system. Long before October 27, 1965, the structure had ceased to be used as a windmill. All of the machinery, including the electric pump which had been used to pump water, had been removed from the building and it was no longer serving as a reservoir for water or as an auxiliary water system.

The plaintiff desired to mave the windmill from its existing foundation to another location approximately one quarter of a mile from its original site. He planned to put the windmill in a state of good repair on a new foundation, to erect an addition to it when it was removed to its new location, to provide suites of rooms for his guests in the addition, and to install an elevator. He hired Mrs. Anna M. Tillinghast of Portsmouth, a landscape architect and architectural designer, to draw the plans and make arrangements for the repair, removal and relocation of the windmill. As the agent for the plaintiff she hired Alfred P. Venancio, a general contractor, to do certain work to prepare the structure for removal to the new site. Mr. Venancio testified that it needed a few sills and some reshingling, and he estimated that it would cost approximately $1,500 to put the building in reasonably good condition. In accordance with plaintiff's directions he did certain repair work on the building to prepare the building for moving, but he never completed the work.

Mrs. Tillinghast also entered into a contract with defendant agreeing to pay defendant the sum of $2,300 for removing the wind vane, shafting and I-beams under the water tank, jacking up the building so that another contractor could replace necessary timbers preparatory to the moving of the building, moving the building to the new location, and placing the building upon a foundation to be erected by another contractor. The contract included an express agreement by defendant '* * * to properly safeguard the windmill building from any damage to the same in moving it and to pay the cost of repairing any damage that may result to the building while being moved and placed on said foundation.'

On October 27, 1965, while defendant's employees were burning some piping inside the windmill with an acetylene torch, a fire broke out which totally destroyed the windmill. As a result of the fire plaintiff brought the present action claiming that the fire was caused by the negligence of defendant's employees and that as a result thereof he sustained money damages.

At the hearing in the superior court plaintiff presented evidence that, although the windmill was somewhat weatherworn, at the time of the fire it was basically still a sound structure; that it would have cost approximately $1,500 to put the building in a state of good repair by replacing certain sills that he decayed and by replacing missing shingles; that, in addition to the age of the building, it was a significant part of the family heritage and of great value to the owner and to the public in general; that it was the symbol of the estate and was depicted on the iron gates of the entranceway to the estate; that it was used by the family and other as a subject of paintings and was mentioned in several publications dealing with the history of Newport; and that it was used as a navigational aid to seamen and navigators entering Newport Harbor and was even depicted on thier charts.

Mr. Venancio testified in substance as follows. After the fire he gave an estimate for the cost of constructing a new mill. His cost estimate was $18,125 for framing and boarding the structure, $4,475 for the new foundation in the new location, and $5,000 for shingling and window framing. He worked from plans given him by Mrs. Tillinghast, which were the original plans of the old mill. He received payment of those amounts from plaintiff as well as $860 for the work he performed in preparing the building for removal prior to the fire and $352 to remove the debris after the fire. Aside from his statement that he worked off...