Fireman's Fund Insurance Co. v. Aalco Wrecking Co., Inc.

Decision Date07 August 1972
Docket NumberNo. 20552.,20552.
Citation466 F.2d 179
PartiesFIREMAN'S FUND INSURANCE COMPANY, a Corporation, et al., Appellants, v. AALCO WRECKING COMPANY, INC., a Corporation, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit


Dale I. Larson, Adolph K. Schwartz, Hullverson, Richardson & Hullverson, St. Louis, and Robins, Davis & Lyons, Minneapolis, Minn., for appellants.

Edward D. Weakley, Boyle, Priest, Elliott & Weakley, Howard Elliott, St. Louis, Mo., for appellee.

Before LAY, HEANEY and STEPHENSON, Circuit Judges.

Rehearing and Rehearing En Banc Denied September 26, 1972.

Dissenting Opinion from Denial of Rehearing En Banc October 16, 1972.

LAY, Circuit Judge.

Plaintiff insurance companies initiated this subrogation action to recover the damages to their assureds arising from a fire loss at the Shapleigh Warehouse Complex in St. Louis, Missouri, on August 4, 1965. Plaintiffs received a jury verdict against the defendant, Aalco Wrecking Company, Inc., who was engaged in demolition work at the complex; however, on post trial motions the district court granted defendant's motion for judgment n. o. v. and alternatively under Federal Rule of Civil Procedure 50(c) defendant's motion for new trial. Plaintiffs now appeal this judgment. We reverse with direction to enter judgment for the plaintiffs in accordance with the original verdict.

In August 1965 the defendant Aalco conducted demolition work on a group of buildings in downtown St. Louis. In the early morning hours of August 4, 1965, a blaze was discovered in the buildings. At the time of discovery the fire had reached three to five alarm proportions. Soon after the fire department arrived the fire spread out of control damaging the assureds' personal property which was stored in an adjacent building. The cause of the fire was unknown. Plaintiffs claim that the delay in the detection of the fire caused the extensive destruction and resulted from defendant's failure to have a watchman on the premises. Plaintiffs assert that the defendant did not and could not secure the demolition site from intruders and did not maintain a watchman at the site to protect the buildings and notify the fire department of any fires.

The trial court submitted the case to the jury under the following instructions:

"Your verdict must be for the plaintiffs if you believe:
First, a fire started in the area being demolished by the defendant and spread to adjacent property, including that occupied by the insured tenants mentioned in evidence, and
Second, the buildings being demolished by defendant were not secured against transients or vandals and it was not reasonably possible to do so, and defendant provided no watchman while the demolition was not in progress, and
Third, defendant\'s failure to employ a watchman was negligence, and
Fourth, as a direct result of such negligence there was a delay in discovering and reporting the fire to the fire department, and
Fifth, as a direct result of such delay the fire spread to property occupied by the tenants and caused damages to them and losses to the plaintiffs."

We find substantial evidence to sustain the jury's finding of negligence and proximate cause arising from defendant's failure to employ a watchman.

Although there was conflicting testimony, substantial evidence was presented to establish that at the time the fire was originally discovered it was burning in the area demolished by the defendant, and from there it spread to the adjacent property.

Considerable evidence was offered to prove that defendant did not and could not secure the buildings being razed and that defendant had not employed a watchman. The Building Code of the City of St. Louis § 2116.2(9) provides:

"All buildings to be razed three stories in height or greater shall be kept secure against entry of transients or vandals. If security is not possible, watchman shall be provided during the hours wrecking is not being accomplished."

Defendant's witnesses agreed that if the buildings could be secured, there was no need for a watchman on the demolition site. Implicit in this testimony was the premise that if the buildings were not secure, it was customary within the construction trade in St. Louis to provide a watchman. Thus, one of the focal issues turned on the factual question whether the buildings could be made secure. On the basis of the record presented this court cannot say substantial evidence did not exist to support the jury's finding as to the lack of security in the building complex.

Captain Klein of the St. Louis fire department visited the demolition site on August 3, 1965, the evening before the fire. His testimony reads:

"A. No, I don\'t recall a single instance where we had to force a door or anything else. Most of the times the doors were hanging open, and we just walked right through.
"Q. Did you normally walk through the buildings?
"A. Right.
"Q. On the evening of August 3, 1965, did you have occasion to observe whether the fire doors, many of which are exposed and showing as little brown cardboard spots on this model, were open or closed?
"A. I\'d say for the most part they were either open or gone entirely.
"Q. All right, sir. Now, in prior visits when you went into the building, Captain, or the buildings, did you have any difficulty gaining access to Building No. 11?
"A. None whatsoever. No. In fact, we had driven the battalion car in there and turned it around inside this building. It was large enough for a truck.
. . . .
"Q. And at any time when you were in these buildings, Captain, had you had any difficulty in gaining access from one to the other?
"A. No, none whatsoever." App. at 262-263.

Several other witnesses verified that the buildings were not always secure. Even Aalco's superintendent indicated that it was impractical to secure portions of the complex.

The evidence amply supports the conclusion that there was a delay in discovering and reporting the fire. The record shows that Captain Klein estimated that the fire had been burning up to one hour before the fire department's arrival. The record also shows that there was a Potter electronic supervisory alarm line which was grounded at 2:10 a. m., twenty-one minutes before any report of the fire.1

Defendant challenges plaintiffs' right to recover on the basis that defendant's failure to provide a watchman did not constitute (1) negligence or (2) the proximate cause of the plaintiffs' damage. We must disagree.

Violation of a city ordinance under Missouri law is evidence of negligence. See Dickerson v. St. Louis Public Service Co., 365 Mo. 738, 286 S.W.2d 820, 824 (1956); Wells v. Henry W. Kuhs Realty Co., 269 S.W.2d 761, 767 (Mo.1954). See also Cichacki v. Langton, 392 S.W.2d 397, 400 (Mo.1965).2 Although the ordinance was offered and received in evidence, the plaintiffs did not request an instruction on it nor did the trial court instruct the jury under it. Nevertheless, the jury could without error consider the ordinance as evidence of negligence. The failure of the court to instruct on the ordinance was not prejudicial to the defendant. Section 2116.2(a) of the Building Code of the City of St. Louis was expressly enacted, along with other sections, to require fire safety precautions and to avoid fire hazards. Plaintiffs' assureds were clearly within the class of beneficiaries whom the Code sought to protect. However, notwithstanding consideration of the ordinance, there existed sufficient credible testimony, including statements from the defendant's own witnesses, that it was the custom recognized in the construction trade in St. Louis to have a watchman on demolition premises unless the premises could be made secure.

Under common law where a party fails to provide protection against known dangers, that failure has been held to be negligence. Cf. Imperial Oil, Ltd. v. Drlik, 234 F.2d 4 (6 Cir. 1956), cert. denied, 352 U.S. 941, 77 S.Ct. 261, 1 L.Ed.2d 236 (failure to post a watchman at the rail of a vessel to warn the ship's winch operator of danger to dock crewman from suddenly-drawn-taut mooring lines); Brumm v. Goodall, 16 Ill.App.2d 212, 147 N.E.2d 699 (1958) (failure to provide sufficient lifeguard supervision); Richardson v. Ham, 44 Cal.2d 772, 285 P.2d 269 (1955) (undue risk of harm created by an unattended bulldozer); Stoutwell v. Board of Trustees of Stanford Univ., 64 Cal.App.2d 197, 148 P.2d 405 (1944) (failure to have a sufficient number of police to protect university students); Stevens v. City of Pittsburgh, 329 Pa. 496, 198 A. 655 (1938) (lack of proper supervision of young boys firing rifles); Rovegno v. San Jose Knights of Columbus, 108 Cal. App. 591, 291 P. 848 (1930) (failure to furnish lifeguards).

If an owner of property negligently allows the spread of a fire on his premises, he may be liable for injury to others even though he has no connection with the fire's origin. See Capra v. Phillips Investment Co., 302 S.W.2d 924, 928 (Mo.1957). See also Willard v. Bethurem, 234 S.W.2d 18 (Mo.App.1950); Steele v. Darner, 124 Mo.App. 338, 103 S.W. 582 (1907). In Reid v. Sibell, Inc. v. Gilmore & Edwards Co., 134 Cal.App. 2d 60, 285 P.2d 364 (1955), the defendant was storing highly inflammable liquids in its section of a building also occupied by plaintiff. The building caught fire, and plaintiff contended that the fire spread and injured plaintiff's property as a result of the combustion of the liquids stored by defendant. Plaintiff complained that defendant was negligent, not for starting the fire, but for failing to take reasonable precautions to prevent the spread of the fire since it knew that if a fire was to start, the high flammability of its stored liquids would cause the fire to readily endanger plaintiff's property. The court agreed, saying:

"There seems no sound reason to

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