French v. Haarhues
| Decision Date | 29 August 1955 |
| Docket Number | No. 17496,17496 |
| Citation | 287 P.2d 278 |
| Parties | Edward L. FRENCH and Dorothy French, Plaintiffs in Error, v. Art L. HAARHUES and Roy N. Jones, Defendants in Error. |
| Court | Colorado Supreme Court |
Kripke & McLean, Denver, for plaintiffs in error.
Yegge, Bates, Hall & Shulenburg, Richard D. Hall, J. Corder Smith, Denver, for defendants in error.
Edward L. French and Dorothy French, plaintiffs in error here and plaintiffs in the court below, brought an action against Art L. Haarhues and Roy N. Jones as defendants to recover damages in the aggregate sum of $6,850.27 allegedly due them by reason of a fire loss allegedly resulting from defendants' negligence. At the conclusion of the plaintiffs' case, defendants' motion for a dismissal was granted, and plaintiffs are here by writ of error seeking a reversal of the judgment.
The complaint charges that a building and the contents thereof owned by plaintiffs were completely destroyed to their damage as above stated by reason of the fact that defendants maintained a fire in said building and negligently operated, maintained and cared for the same. Defendants in their answer set forth three defenses: 1. Denied negligence; 2. damage proximately caused by unavoidable accident, and 3. damage proximately caused by the carelessness and negligence of the plaintiffs in the construction and maintenance of the building.
The evidence discloses that on October 27, 1951, plaintiffs permitted Art L. Haarhues the use of a shop on plaintiffs' premises for the purpose of repainting his trailer, the painting to be done by Jones, an employee of Haarhues. Plaintiffs testified that the shop was structurally in good condition; the electric wiring therein was good, and that the stove used to heat the shop in inclement weather was likewise in good condition. Jones kindled a fire in the stove, and while engaged in painting the trailer, found the shop on fire, which completely destroyed it and its contents. It is for the value of the building and its contents that plaintiffs seek damages in the amount of $6,850.27. After the fire the stove was found to be full of live coals, the door thereto closed, and in an undamaged condition.
There is no evidence in the record to establish how the fire started or what occasioned it. The acting fire chief of the Fort Morgan Fire Department, who was present with his equipment trying to extinguish the fire, stated that he could not definitely determine the cause of the fire, but he assumed it was the overheated stove. However, on cross-examination he testified that the overheated stove was the only assumption 'we would have for the fire.' He further stated that this assumption would be a guess on his part and that there could have been other causes for the fire, although he was not called upon to state what other causes could have occasioned it.
At the conclusion of all of the evidence, defendants, as we have said, moved for a dismissal, basing their motion upon two grounds: 1. That there was no evidence that any act of defendants, or either of them, was the proximate cause of the fire, and 2. that there was no evidence of any negligence on the part of defendants, or either of them, which was a proximate cause of the fire. After argument the court stated:
'I think, under the circumstances, that the Motion to Dismiss should be sustained and it is accordingly so ordered.
'Mr. Kripke: May our exceptions to the ruling of the Court be noted, your Honor?
'The Court: Your exceptions are noted and let the record show that a Motion for a New Trial is dispensed with for the reason that if the same were filed, it would undoubtedly be overruled as serving no useful purpose, and the plaintiffs may have sixty days within which to tender the Reporter's transcript.
'Mr. Kripke: May execution be stayed for a like period?
Pursuant to the court's order, the only record pertaining thereto is the following:
'In The District Court In And For The County Of Morgan And
(Copied from Civil Order)
'Be It Remembered, That heretofore and on to wit, the 22nd day of July, A.D. 1954, the same being one of the regular juridical days of the March, A.D. 1954 term of Court, the following proceedings, inter alia, were had and entered of record in said Court, to-wit:
Art L. Haarhues and Roy N. Jones, Defendants}
Order Of Court (Judge Raymond L. Sauter)
'On this day come the plaintiffs in person and by Robert E. McLean, Waino W. Johnson and Kenneth N. Kripke, Esq., and come also the defendants in person and by their attorneys, J. Corder Smith, and Mr. Hall of January and Yegge, Esq.
'The following jurors were selected and sworn to try this cause:
'1 Edwin Matzner
2 Ivy D. Mengel
3 Clara A. Kronlow
4 Harry A. McMahan
5 William O. Lathrop
6 Fred J. Martensen
'The Court now instructed the jury to not discuss this case with anyone nor among themselves at this time.
'Mr. Kripke made the opening statement to the jury on behalf of the plaintiffs.
'Dorothy French was sworn and testified
'Edward L. French was sworn and testified.
'Exhibits A, B, and C. were identified and it was stipulated that they be received and admitted, and the Court ordered that Exhibits A, B, and C be admitted. Exhibits were passed to the jury for inspection.
'Exhibit D was identified by Edward L. French and offered in evidence, objected to by defendants; the court overruled the objections and ordered that Exhibit D be admitted.
'William A. Pischel sworn and testified. Frank Berman was sworn and testified. Herman Dickman was sworn and testified. Exhibit E was identified and offered to which defendants objected and objections sustained. Mr. French was recalled as to Exhibit E which was then again offered and admitted, as corrected. Objection of defendants noted. Mr. Dickman was recalled as to item 38 in Exhibit E.
'Plaintiffs called Roy N. Jones, Defendant, as adverse witness under statute. Mr. Jones was sworn and testified and identified Exhibit 'F'--Exhibit F then offered to which defendants object--objections sustained.
'Exhibits D and E were passed to jury for their inspection.
'Plaintiffs rest.
'Jury was again cautioned to not discuss this matter with any one nor among themselves, and a recess was ordered 9:00 A.M. July 23, A.D. 1954.
'At this time Mr. Hall moved the Court to dismiss the complaint and enter judgment in favor of the defendants on the following grounds:
'1. That there is no evidence whatsoever that any act on the part of the...
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Nutter v. Wright
...127 Colo. 180, 254 P.2d 862; Cable v. Smith, 130 Colo. 337, 275 P.2d 945; Horlbeck v. Walther, Colo., 279 P.2d 434; French v. Haarhues, Colo., 287 P.2d 278. In French v. Haarhues, supra, Chief Justice Alter aptly stated in language that is plain and explicit: 'The entry of a judgment upon t......
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Alexander v. First Nat. Bank in Fort Collins
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...v. Larsen, 117 Colo. 229, 185 P.2d 1012 (1947); Horlbeck v. Walther, 131 Colo. 36, 279 P.2d 434 (1955). French v. Haarhues, 132 Colo. 261, 287 P.2d 278 (1955); Nutter v. Wright, 132 Colo. 304, 287 P.2d 655 (1955); Abbott v. Poynter, 153 Colo. 147, 385 P.2d 120 (1963). Failure to include jud......
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Rule 50 MOTION FOR DIRECTED VERDICT.
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Rule 10 RECORD ON APPEAL.
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