Baltimore Am. Underwriters of Baltimore Am. Ins. Co. of New York v. Beckley

• Decision Date: 10 December 1937
• Docket Number: No. 40.,40.
• Citation: 195 A. 550
• Parties: BALTIMORE AMERICAN UNDERWRITERS OF BALTIMORE AMERICAN INS. CO. OF NEW YORK v. BECKLEY et al.
• Court: Maryland Court of Appeals

195 A. 550

BALTIMORE AMERICAN UNDERWRITERS OF BALTIMORE AMERICAN INS. CO. OF NEW YORK

v. BECKLEY et al.

No. 40.

Court of Appeals of Maryland.

Dec. 10, 1937.

Appeal from Baltimore City Court; Robert F. Stanton, Judge.

Suit by the Baltimore American Underwriters of the Baltimore American Insurance Company of New York against John D. Beckley and others, individually and trading as John D. Beckley & Sons. Judgment for defendants on a directed verdict, and plaintiff appeals.

Reversed as to John D. Beckley and remanded.

Argued before BOND, C. J., and URNER, OFFUTT, PARKE, MITCHELL, SHEHAN, and JOHNSON, JJ.

Walter L. Clark and Roszel C. Thomsen, both of Baltimore (J. Gilbert Prendergast, of Baltimore, on the brief), for appellant. Edward L. Ward, of Baltimore (Nathan R. Johnson, of Baltimore, on the brief), for appellees.

URNER, Judge.

The appellant insurance company, having paid a fire loss covered by its policy, and asserting its contractual right of subrogation, sued the appellee upon the theory that the fire resulted from negligence in the performance of his contract to repaint the room in which it occurred. A verdict for the defendant was directed by the trial court at the close of the testimony produced by the plaintiff, and the only exception in the record before us questions the propriety of that action.

The defendant John D. Beckley was a subcontractor engaged to remove the stain and varnish from paneling in the living room of the home of Charles M. Nes, Jr., in Baltimore county, and to restain the surface, as a part of certain repairs and improvements for which Harry A. Hudgins was the principal contractor. The removal of the stain and varnish from the woodwork involved the application of an inflammable paste, and the use of putty knives for scraping, and the wood was afterwards rubbed with steel wool and alcohol in order to clean it properly for restaining. Two employees of the defendant had been doing that work for 2 1/2 days when, about noon on October 24, 1934, the interior of the living room was badly damaged by a fire of apparently sudden origin and brief duration. The defendant's employees were alone in the room when the fire started, and the only door affording access to the adjacent part of the house was closed. Before Mr. Nes left home on the morning of the fire he visited the living room and saw the painters proceeding with their work. He could not recall whether any of the doors or windows were open, but he said there was no fire in the room. When he returned "about twenty-five minutes after the fire started" it was no longer burning. He found the two painters "slightly burned and very scared."

The fire had spread over all of the walls, but the painting at one end of the room was "severely charred." In that part of the room was the door leading into the adjoining hallway. Near the door was one of several switches by which the current for the electric lights in the room was controlled. Each switch was operated by a button projecting from a metal box in the paneling. To facilitate the work of refinishing the wood surface, the plate covering the box near the door had been removed, but the switch and connecting wires remained in position. Electric wall fixtures, with the bulbs taken from them, had been unscrewed and left hanging by the wires, which were "taped." No protective covering appears to have been provided for the wires in the switch box. In the pantry on the first floor was a fuse box for the control of the electric current throughout the house, and before the work was begun Mr. Nes informed the defendant's son and representative that one of the fuses could be removed as a means of cutting off the current from the living room while the work was in progress. That precaution, however, appears to have been omitted. It was testified that there was "a great deal of fire around" the uncovered switch box near the door in the living room, that the "woodwork around the box after the fire was black and charred," and that "the wires at the box were burned." Other electric switches in the room were "burned and bent."

The paste used for the removal of the old stain and varnish was supplied in cans on which were labels with printed directions as to its use, and in large print the caution "Inflammable. Keep away from fire and use in a well ventilated place."

The declaration alleged that the defendant's employees negligently failed to keep the room in which they were working properly ventilated, and as a result dangerous quantities of inflammable gases, fumes, and vapors accumulated in the room, and while removing the stain and varnish from the paneling at or about the uncovered switch box, from which the defendant had neglected and failed to cut off the electric current, one of the employees negligenty formed a contact with the switch or connecting wires, and thus produced a spark by which the inflammable vapors in the room were ignited.

One of the men employed in the room at the time of the fire had died before the trial, and the other was not called as a witness, the issue, as already noted, having been withdrawn from the jury at the close of the plaintiff's case. The decision of the question as to the legal sufficiency of the evidence produced to support the plaintiff's theory must, therefore, depend upon a consideration of the inferences of which that evidence may reasonably admit, there being no direct proof as to how the fire originated.

It is readily inferable that the fire resulted from the ignition of the inflammable material used by the defendant's employees, or of the vapors produced by its application and removal. The testimony does not prove to what...