Keyser Canning Co. v. Klots Throwing Co.
| Decision Date | 17 March 1925 |
| Docket Number | 5231. |
| Citation | 128 S.E. 280,98 W.Va. 487 |
| Parties | KEYSER CANNING CO. v. KLOTS THROWING CO. |
| Court | West Virginia Supreme Court |
Submitted March 4, 1925.
Rehearing Denied June 10, 1925.
Syllabus by the Court.
Where there is substantial evidence on one of several theories on which recovery is sought, the trial court may not properly instruct the jury that unless they find from the evidence facts warranting a recovery on one or more of the other theories pleaded and relied on, they should find for the defendant.
The decision of this court on a particular point on a former hearing will be regarded as the law of the case on a second appeal, unless new pleadings and new evidence adduced on the subsequent trial call for a different judgment.
Where the question before the court and jury is as to the origin of the fire causing the damages sued for, expert witnesses should not as a rule be allowed to give their opinions thereon except upon hypothetical questions covering all the facts which the evidence tends in an appreciable degree to establish.
An answer by a superintendent of a manufacturing company in proofs of loss, as to the origin or cause of the fire, "unknown, presumably due to steam lines in dry room," should not be admitted as a positive admission against interest, that the fire causing the damages sued for was in fact so caused.
But where the defendant on the trial of a case puts a witness on the stand to prove a material fact in issue, he is bound on a subsequent trial of the same case by the answer of the witness, and such admission may be introduced in evidence by the plaintiff on a subsequent trial as proof of the fact so admitted.
An assignee of a claim for damages arising out of tort, as distinguished from one arising out of contract, cannot maintain an action against the tort-feasor in his own name or as assignee. The suit should in such cases be in the name of the assignor, for the use of the assignee. Reaffirming the same proposition enunciated in Barkers Creek Coal Co. v Alpha-Pocahontas Coal Co. (W. Va.) 123 S.E. 803.
If an accidental fire originates on one's premises and does damage to his neighbor, he is not liable therefor unless he has failed to use ordinary care and skill to extinguish it or to provide adequate means of doing so, the degree of care required depending on the facts and circumstances; the greater the danger, the greater will be the degree of care required to guard against it.
Error to Circuit Court, Mineral County.
Action by the Keyser Canning Company against the Klots Throwing Company. Judgment for defendant, and plaintiff brings error. Judgment reversed, verdict set aside, new trial awarded.
Harry G. Fisher, of Keyser, for plaintiff in error.
Charles N. Finnell, of Keyser, and H. P. Whitworth, of Westernport Md., for defendant in error.
This case was here on a former writ of error, prosecuted by plaintiff, when the adverse judgment against it was reversed and the case remanded for a new trial. 94 W.Va. 346, 118 S.E 521, 31 A.L.R. 283.
After the case went back, and before the new trial, plaintiff was permitted to file a fourth amended declaration, making all prior declarations parts thereof, and on which defendant joined issue. This new declaration contains but two counts, but in substance it embodies the same averments of facts, with slightly changed relation, and in addition charges certain specific omissions of alleged duty which defendant owed plaintiff, in order to provide against the dangers of fire resulting in the destruction of plaintiff's property and the property of its assignor, Charles W. Siever, their common landlord, viz.: (1) Failure to install and keep in position a thermometer showing the degree of heat in the dry kiln; (2) failure to maintain a sprinkler system in the dry kiln, properly constructed and connected with the town water system and water tank on the building; (3) failure to have a hose connection with the water system on the premises; (4) failure to provide adequate fire extinguishers, buckets, barrels, with which the fire might have been put out by its servants or others; and (5) failure to equip the steam pipes leading into the pipes under the dry kiln with a valve or mechanism by which the amount of steam going into the radiator, and the temperature, could be controlled and the fire prevented.
The issues presented by the pleadings, as well as by the evidence adduced on the last trial were substantially the same as those presented by the record before us on the former hearing, with the exception that on the last trial, defendant introduced certain expert evidence on spontaneous combustion, one of the theories pleaded and relied on as a basis of recovery, which it is contended was sufficient to carry the case to the jury on the conflicting evidence thereon, and that the verdict of the jury being supported by the defendant's evidence, it is conclusive of plaintiff's rights based on that theory.
As on the former hearing, so on this, plaintiff relied on four theories, namely: First, that the fire was due to the application of direct heat, by means of overheated steam pipes in defendant's dry kiln, allowed to become and remain out of repair, as distinguished from the theory of spontaneous combustion generated under the conditions existing in the kiln; second, the theory of spontaneous combustion alluded to in the first proposition, and on which plaintiff mainly relied in previous trials, and emphasized in the opinion on the former hearing here; third, that defendant negligently permitted strangers and employees to enter its premises and sleep therein, knowing them to be dangerous in their habits of smoking and throwing matches and lighted cigar and cigarette stubs on the floor; and, fourth, that defendant negligently omitted to provide proper preventative fire extinguishers, as set forth in its fourth amended declaration.
We shall not, in disposing of the case on this hearing, undertake to answer all the propositions of counsel. Many of them are extremely technical, and their decision either immaterial or unnecessary to the proper determination of the present writ. Of course we would not presume to reflect on the commendable energy displayed by able counsel in endeavoring to do their duty to clients, and to aid the court. It suffices to say that the law laid down in our former opinion must be regarded as the law of this case, except in so far only as the facts not therein before us may have changed the relative rights of the parties.
On the first proposition, that the fire was the result of direct excessive heat applied to the defective and dangerous dry kiln by the steam pipes or coils, defendant's counsel say that recovery cannot be predicated on that theory, because no evidence was adduced to justify it; and by their instruction No. 6, complained of by plaintiff, they had the court tell the jury that under the pleadings and evidence they could not find defendant guilty unless they "believed from a preponderance of the evidence that the fire which destroyed the plaintiff's property was caused by the witness Thorpe smoking cigarettes in the defendant's office, or was caused by spontaneous combustion either in the dry box of the defendant or in the coil box immediately beneath it, and not then unless they further believed from the evidence in the case that the conditions which caused such spontaneous combustion to take place were known to the defendant or by reasonable care and inspection could have been known, and that they were such as to lead a reasonably prudent man operating said dry box in the manner and form as the same was operated by the defendant to believe that spontaneous combustion would likely take place therein." And by its instruction No. 13, the defendant had the court tell the jury that there was no evidence in the case that the fire which destroyed plaintiff's property was caused by excessive heat directly igniting the dry box, its contents, or the coil box located on defendant's premises as alleged in plaintiff's declaration.
In our opinion instruction No. 6, so limiting plaintiff's right of recovery, and No. 13, telling the jury there was no evidence in the case justifying recovery on plaintiff's theory that excessive heat applied directly to the dangerous kiln caused the fire, were erroneous. There was the evidence of the witness Thorpe, present in the room where the kiln was located, who swore that the fire originated in the kiln, and other witnesses on the outside who saw the fire when it first broke out, located it in the corner of the room where the dry kiln was. Besides this evidence and the physical facts existing at the time and after the fire, pertaining to the pipes, the coil and the condition of the valve, tended strongly to support the theory that the fire originated in the dry kiln, and if the evidence of defendant's expert witnesses against the theory of spontaneous combustion is to have any weight, and the fire in the kiln was not the result of spontaneous combustion, it was there and must have come from overheated pipes and direct heat applied to the inflammable parts of the kiln.
Besides this evidence plaintiff relies on the proofs of loss filed by defendant with the insurance company after the fire. They were verified by defendant's district superintendent Bernard J. Shelton, who in answer to question No. 14, as to the origin of the fire answered: "Unknown, presumably due to steam lines in drying room." Defendant's counsel objected to the introduction of this document, but the court admitted the page bearing the signature of Mr. Shelton, and showing the answer to the question referred to. Whether this was legal evidence against the defendant on this issue, as an...
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