Borrow v. El Dorado Lodge, 5507

• Citation: 252 P.2d 791,75 Ariz. 139
• Decision Date: 26 January 1953
• Docket Number: No. 5507,5507
• Parties: BORROW et ux. v. EL DORADO LODGE, Inc. et al.
• Court: Supreme Court of Arizona

Page 791

252 P.2d 791

75 Ariz. 139

BORROW et ux. v. EL DORADO LODGE, Inc. et al.

No. 5507.

Supreme Court of Arizona.

Jan. 26, 1953.

Supplemental Opinion on Rehearing March 30, 1953.

Udall & Udall, of Tucson, for appellants.

Darnell, Robertson & Holesapple, of Tucson, for appellees.

LOCKWOOD, Superior Court Judge.

This case arose by an action by Peter P. Borrow and Edith Borrow, husband and wife, for damages for personal injuries alleged to have been suffered by Peter P. Borrown, as the result of burns caused by an explosion caused by the ignition of gasoline fumes while plaintiff Peter P. Borrow was engaged in cleaning a surge tank on the premises owned by the defendant El Dorado Lodge, Inc., a corporation. The defendant Jack Taub was an officer of the corporation.

The matter was tried to a jury, which returned a verdict in favor of plaintiffs and against the defendants in the full amount prayed for, being $45,000. Defendants moved for a directed verdict in their favor at the close of the evidence, which motion was denied, and upon their motion for a new trial the court denied the same, conditioned that the plaintiffs make a remitter of $25,000 from the amount of the verdict, for the reason that the damages were found by the court to be excessive.

Plaintiffs appealed from the order of remittitur, and thereafter defendants filed a cross-appeal based upon the order denying their motion for an instructed verdict, and upon the order denying the motion for new trial.

For clarity we will hereafter continue to refer to appellants and cross-appellees as plaintiffs, and to appellees and cross-appellants as defendants.

The facts disclosed by the evidence appear as follows:

Plaintiff Peter P. Borrow was employed by M. I. Poze Construction Company as a carpenter and construction foreman during the years 1949 and 1950. In 1949 he was sent to the El Dorado Lodge, a guest ranch near Tucson, Arizona, which was undergoing remodeling, to do some construction work. Among other things plaintiff assisted in building a structure known as a pump-house, which was designed to house the heating and filtration system used to service a swimming pool. In the pump-house the plaintiff constructed what is known as a surge tank, about twelve feet deep by four feet square, with walls extending upward above the floor a short distance, and lined with asphalt and enamel, through which water was pumped for the pool. During the time plaintiff was so working, equipment, including a boiler to heat the water, was installed by a plumbing contractor.

In February of 1950 plaintiff and a helper, one Fimbres, were sent by the M. I. Poze Construction Company to the El Dorado Lodge to repair the surge tank, since asphalt was apparently leaking from it into the swimming pool. Plaintiff and Fimbres went into the pump-house, taking with them brushes and scrapers to scrape the asphalt and enamel off the surge tank. Shortly after they arrived defendant Taub, manager of the Lodge, came into the building and had a conversation with Borrow, during the course of which, according to Borrow's testimony, Taub said: 'We have everything ready for you. Everything is shut off ready to go ahead.' Borrow further testified that they discussed the boiler or water heater with regard to its improvement in operation, and that Taub showed him some new attachments on it, and he, Borrow, felt the boiler and it was cold. Taub left the building while Borrow and Fimbres scraped the tank for about half an hour, when Taub returned, and another conversation between them ensued. According to Borrow's testimony he told Taub they weren't progressing very well, and suggested the tank should be washed off; that kerosene would help dissolve the asphalt but would leave a bad film; that gasoline would be best to use, as it would leave it clean. According to Borrow, Taub replied, 'I don't care what you use. Use anything, so long as you get it off,' and then told an employee of the El Dorado Lodge, one Diaz, to get what Borrow and Fimbres wanted, and instructed him to bring them some muriatic acid. Taub left, and about a hour later Borrow went outside, happened to find some gasoline, took it back, and he and Fimbres used it to dissolve the asphalt in the tank. Diaz was in and out during the time they were working, including the time they were using gasoline, according to Borrow. Electric lights were burning in the building during the time they were working, and after they had washed the tank with gasoline Borrow started to rinse the tank with water from a garden hose, when a blue flame ran from the direction where the boiler was to the tank, there was an explosion at the tank, and Borrow was burned.

Since the cross-appeal goes to the sufficiency of the evidence to submit plaintiffs' case to the jury, we shall examine it first.

Defendants in their cross-appeal assign three errors, based upon five propositions of law. Briefly, they are: the court erred in (1) excluding evidence of the interest of the witness Don F. Schafer for the reason that the excluded evidence would show or tend to show said witness was employed by one having a direct financial interest in the litigation, and thus have a direct bearing upon the weight and credibility of the testimony; (2) denying defendants' motion for directed verdict, motion for judgment in accordance therewith, and motion for new trial, for the reason that there was a total failure of proof of actionable negligence on the part of defendants or either of them; and (3) denying defendants' motion for new trial, for the reason it appeared by a fair preponderance of the evidence that the negligence of plaintiff Borrow was a contributing proximate cause, if not the sole cause, of his injuries.

Counsel for defendants urge that they should have been permitted to elicit from the witness Schafer on cross-examination that he was an employee of the Arizona Industrial Commission, since the Commission, under Section 56-949, A.C.A.1939, had a direct financial interest in the outcome of the litigation, and such interest might be taken to affect the credibility of the witness. In support of such position he cites cases where the witness was a physician, adjuster or attorney employed by an insurance company, and particularly stresses the ruling of the court in Majestic v. Louisville & N. R. Co., 6 Cir., 1945, 147 F.2d 621. In the latter case, a personal injury action, the plaintiff was employed by the United States, and produced witnesses also so employed. The Federal Employees' Compensation Act, 5 U.S.C.A. § 751 et seq., contains a provision for repayment of compensation in case of recovery by the claimant from a third person similar in effect to the provisions of Section 56-949, supra. The Circuit Court upheld the trial court's admission of testimony on the part of plaintiff's witnesses, adduced by the defendant, that they were employees of the United States Government, which had some interest in the outcome of the litigation, as...