Fidelity & Guaranty Ins. Underwriters, Inc. v. Gary Douglas Elec., Inc.

• Decision Date: 29 May 1974
• Citation: Fidelity & Guaranty Ins. Underwriters, Inc. v. Gary Douglas Elec., Inc., 357 N.E.2d 388, 48 Ohio App.2d 319 (Ohio App. 1974)
• Parties: , 2 O.O.3d 305 FIDELITY & GUARANTY INS. UNDERWRITERS, INC., Appellant, v. GARY DOUGLAS ELECTRIC, INC., et al., Appellees.
• Court: Ohio Court of Appeals

Page 319

48 Ohio App.2d 319

357 N.E.2d 388, 2 O.O.3d 305

FIDELITY & GUARANTY INS. UNDERWRITERS, INC., Appellant, v.GARY DOUGLAS ELECTRIC, INC., et al., Appellees.

Court of Appeals of Ohio, Ninth District, Summit County.

May 29, 1974.

Syllabus by the Court

'Origin' and 'cause' of a fire are not synonymous words and whether their establishment requires an expert opinion depends upon the facts and circumstances of each case.

Timothy P. Ristau, Cleveland, for appellant.

Lawrence H. Curtis, Canton, for appelleeWatlow Electric Mfg. Co.

William J. Cady, Akron, for appelleeGary Douglas El., Inc.

MAHONEY, Judge.

The plaintiffFidelity & Guaranty Insurance Underwriters, Inc.(Fidelity), the appellant herein, became subrogated to the rights of Theodore and Marcia Shorman for $70,666.27 in losses sustained from a fire in their home which, allegedly, started in a wall of the sauna room.

Fidelity then commenced this action to recover its losses.It joined as defendants: (1)Lewis May, the seller of the suana unit and the general contractor for its installation; (2)Gary Douglas Electric, Inc., the installer of the sauna wiring; (3)Watlow Electric Manufacturing Co., the manufacturer of the thermostat that controlled the sauna heater; (4)The Baker Company, Inc., manufacturer of the sauna; (5) the Edwin L. Wiegand Co., manufacturer of the heating element in the sauna; and (6)Joseph Sternbauer, the general contractor for the construction of the house.

Subsequently, upon motion, Sternbauer was dismissed, and upon a motion to dismiss for lack of jurisdiction, The Baker Company was dismissed.The Edwin L. Wiegand Company was dismissed voluntarily by the plaintiff.

At the conclusion of the evidence offered by Fidelity, the trial court directed a verdict in favor of the remaining defendants on the premise that 'there is no firm ground or probable cause in this case.'The court held further:

'The court will have to find that the probable cause is not supported by anything in the testimony of the expert. * * *

'In other words, upon the testimony of the expert (Berndsen) and also the Fire Chief probable cause was not shown whereby the court could send the case-that is, had to be tried by the defendants upon their defense * * *.'

From the judgment entered, plaintiff has appealed, and for its assignments of error it states:

'1.The court erred in denying plaintiff the right to introduce expert testimony relating to the origin and cause of the fire and resulting loss; specifically, that the court erred in denying two expert witnesses the opportunity to testify regarding their opinions as to the origin and cause of the fire in question and to otherwise fully testify.

'2.The court erred in granting the motions of defendants, Gary Douglas Electric, Inc., Watlow Electric Manufacturing Co., and Lewis May, for directed verdicts and judgments in their favor at the close of the testimony on behalf of plaintiff.

'3.The judgments are not sustained by the evidence and are against the manifest weight of the evidence and are contrary to law.

'4.The court erred in not permitting plaintiff to examine fully on direct and redirect testimony William R. Berndson.

'5.The court erred in not admitting into evidence plaintiff's ExhibitsNo. 34, No. 52, No. 53, No. 54, No. 56, No. 62, andNo. 70.'

The first three assignments of error deal with the directed verdict, and the admission of and/or the weight to be given the testimony of the expert witnesses, Ralph Schueller, Vernon O'Dell, and William Berndsen.We will, therefore, consider these three assignments together.

Ralph Schueller was the district Fire Chief, who arrived at the fire scene and made an investigation.After testimony concerning what he had done at the fire, and his observations, the trial judge sustained an objection to the following question:

'Q.(Mr. Ristau).Chief Schueller, based upon your years of experience in fire fighting, and based upon your observation of the physical appearance at the scene of the fire in question, do you have an opinion as to the origin of that fire?'

Vernon O'Dell, an investigator for the Akron Fire Department, was called by the plaintiff as an expert witness, even though he had not investigated the fire but had examined some of the physical exhibits, like the switch and outlet boxes.At the concluson of his testimony, he was asked a hypothetical question concerning the origin of the fire.The trial court again sustained the objection to that question.

The issues raised by the trial court's rulings are as follows:

(A) Are 'origin' and 'cause' synonymous?

(B) Are 'origin' and 'cause' of the fire matters within the experience, knowledge and comprehension of laymen which the jury may deduce from the facts; or are they matters requiring an expert opinion to aid the jury because they are outside of such experience or knowledge of laymen?

(C) If either 'origin' or 'cause,' or both, are outside of the experience, comprehension or knowledge of laymen and require expert opinion, may the opinion be admitted even though the cause of the fire is an ultimate question for the jury to decide?

We must distinguish between 'origin' and 'cause.''Origin' is the place where something starts.It is the source or beginning place.'Cause,' on the other hand, is a condition or happening that brings about a specific effect or produces a resultant condition.'Origin' may or may not have a direct bearing on 'cause.'The 'cause' is 'why' something began or happened.The words are not synonymous.

Whether or not 'origin' and 'cause' require an expert opinion for their establishment depends upon the facts and circumstances of each case.In the instant case, it readily appears that expert testimony is necessary on both the questions of 'origin' and 'cause.'Origin, however, was not an ultimate fact in issue for the jury.It may or may not have had a bearing on cause.However, the 'cause' of this fire had a direct relationship to the ultimate issues of proximate cause and negligence.Both 'origin' and 'cause' were outside of the common knowledge, experience and comprehension of laymen, and expert testimony should have been allowed, even if it was on the ultimate issues of proximate cause and negligence.See: McKay Machine Co. v. Rodman(1967), 11 Ohio St.2d 77, 228 N.E.2d 304;State Auto Mutual Ins. Co. v. Chrysler Corp.(1973), 36 Ohio St.2d 151, 304 N.E.2d 891;trebotich...