Kerr v. Great Atl. & Pac. Tea Co.

• Decision Date: 20 March 1930
• Citation: 149 A. 618
• Parties: KERR et al v. GREAT ATLANTIC & PACIFIC TEA CO.
• Court: Maine Supreme Court

149 A. 618

KERR et al

v. GREAT ATLANTIC & PACIFIC TEA CO.

Supreme Judicial Court of Maine.

March 20, 1930.

Exceptions from Supreme Judicial Court, Cumberland County.

Action by James H. Kerr and another against the Great Atlantic & Pacific Tea Company. Verdict for plaintiffs. On exceptions and motion of defendant.

Exceptions and motion overruled.

Argued before PATTANGALL, C. J., DUNN, STUUGIS, and BARNES, JJ., and MORRILL, A. R. J.

Frank P. Preti, of Portland, for plaintiff.

Hinckley, Hinckley & Shesong, of Portland, for defendant.

PATTANGALL, C. J.

On exceptions and motion. Action in tort to recover damages alleged to have been caused by negligence of defendant, resulting in the destruction by fire of certain property of plaintiffs. Verdict for plaintiffs. Damages assessed at $14,636.36, which amount by special finding of the jury "includes all claims for machinery and all other property in dispute."

Plaintiffs were partners doing a general contracting business and occupying a large storehouse in which was kept their equipment, including a very substantial quantity of machinery and tools.

Defendant occupied two buildings in close proximity to plaintiffs' storehouse, which were used as storerooms for crates, boxes, barrels, and paper. Between its buildings and that of plaintiffs, defendant maintained a large metal cylindrical incinerator in which it burned such rubbish as accumulated from the storehouses mentioned and from its branch stores. This incinerator was in operation on July 8, 1929, during a period of protracted heat and drouth, on a day when a high westerly wind prevailed.

Plaintiffs' property was on that day destroyed by fire under circumstances which led them to conclude that sparks from the incinerator, negligently operated as they claimed, caused the damage. Suit was brought, trial was had, and a jury agreed with that conclusion. There was evidence sufficient to warrant such a finding.

In support of its motion, defendant relies upon the fact that the jury included in its estimate of damages the value of certain property in plaintiffs' possession and in use by them at the time of the fire, which it claimed was not the property of the partnership but belonged personally to one of the partners.

This property was valued at $6,700 and defendant argues that the inclusion wrongfully of so large an amount in the computation made by the jury ought not to be corrected by a remittitur but should be sufficient evidence of prejudice to warrant setting aside the entire verdict and ordering a new trial.

That argument might be entitled to weight if the $6,700 had in fact been wrongfully included in the verdict. But the right of plain-tiffs to recover on the items making up that amount did not rest, as defendant apparently assumes, upon the question of whether or not the partnership had title to the property enumerated in this schedule. It would be entitled to the same amount in damages if it held the property as bailee as though it had been owner. Little v. Fossett, 34 Me. 545, 50 Am. Dec. 671; Vining v. Baker, 53 Me. 544; Boston & M. R. R. Co. v. Warrior Mower Co., 76 Me. 251. There was evidence from which the jury would have been justified in finding the partnership bailee if not owner, and both propositions were submitted to it.

The exceptions, fourteen in number, relate to the admission and exclusion of certain testimony, and to the refusal to instruct the jury as requested.

The first three exceptions concern testimony offered by Percy H. Richardson, an engineer, who explained a plan of the locus, including the position of the incinerator. His observation of the premises occurred some three weeks after the fire. The condition of the incinerator at the time of the...