Maryland Cas. Co. v. Jolly
| Decision Date | 06 June 1960 |
| Docket Number | No. 6655,6655 |
| Parties | MARYLAND CASUALTY COMPANY, Plaintiff-Appellee, v. F. E. JOLLY, d/b/a Jolly's Welding Service, Defendant-Appellant. |
| Court | New Mexico Supreme Court |
Hammel Carrell, Lovington, for appellant.
Joseph O. Walton, Hobbs, for appellee.
Maryland Casualty Company, plaintiff-appellee, issued a comprehensive policy of insurance on a bus owned by E. D. Pearce covering among other things, damage or destruction by fire. The casualty company also issued a comprehensive liability insurance policy on the appellant Jolly's Welding Service, owned by appellant F. E. Jolly. The bus in question was damaged by fire on the premises of Jolly's Welding Service.
The casualty company paid Pearce according to its contract for the damage caused by the fire, and brought this action as subrogee to recover the amount paid Pearce on the damage claim, alleging negligence on the part of the appellant in permitting the bus to catch fire. Appellant pleaded in defense contributory negligence on the part of an employee of Pearce, and also counterclaimed that the casualty company was liable as insurer of appellant for the damage sustained and attorney fees. The trial court held for the casualty company on both counts, and this appeal resulted.
The trial court found the facts to be as follows:
Raymond Briscoe, at the instance of Pearce, his employer, transported the bus to the welding shop for the purpose of repairing a leak in one of the gas tanks. Briscoe agreed to drain the gas tank as best he could before delivery to the appellant and in carrying out his purpose, he drove the bus on the appellant's premises, parked it, and removed the leaking tank, attempting to drain the gas from it. The bus has an alternate gasoline tank on which it could operate, and although Briscoe was free to remove the bus from the premises after the leaking tank had been removed, he did not do so. Thereafter, Barbee, a welder employed by appellant, ran water into the tank in an attempt to empty the remaining gasoline and in so doing caused approximately 20 gallons of gasoline to be spilled upon the ground in and around the gas tank and under the bus. Briscoe left the premises while the tank was being welded, leaving the keys in the bus. Barbee took a portable acetylene torch and began welding the tank, but in so doing the gasoline which had spilled from the tank caught fire and endangered the bus. Before the bus caught fire, there was ample time for appellant or his employee to have removed the bus but they did not so do. Briscoe was not present at the time and therefore could not have removed the bus. Although appellant and his employee may not have known that the keys were left in the bus and it could have been moved from the danger area, no attempt was made to ascertain that fact and therefore made no effort to prevent the bus from catching fire. The policy of insurance covering the appellant contained the express provision excluding liability of the casualty company with respect to property in the care, custody or control of the appellant, or any property over which the appellant for any purposes exercised physical control.
From these findings, the court concluded that the appellant was negligent, that Pearce and his agent were in no way contributorily negligent, and rendered judgment for appellee. The court also concluded, on the counterclaim, that the bus was in the care, custody or control of appellant, or appellant exercised and had physical control thereof, and therefore appellee was not liable on its policy of insurance with appellant under the express exclusion clause of said policy.
Appellant alleges that the trial court erred in its conclusions because there is no substantial evidence or record to support the findings (1) that Pearce, through his agent Briscoe was not contributorily negligent or (2) that the bus was in the care, custody or control of appellant or appellant exercised and had physical control thereof.
Findings of fact by the trial court, if supported by substantial evidence, are conclusive on appeal, and such findings will not ordinarily be set aside regardless of whether this court agrees with the trial court. In this regard, all disputed facts are resolved in favor of the successful party and all reasonable inferences indulged in to support the findings and the evidence and inferences to the contrary will be disregarded. Totah Drilling Co. v. Abraham, 1958, 64 N.M. 380, 328 P.2d 1083.
With this principle in mind, we shall answer the questions in the order presented.
On the question of contributory negligence, the partinent portion of Briscoe's testimony is as follows:
'Q. What did you do when you took the tank off? A. Well, I laid it down on the ground, and one of the welders came out there and helped me pull it over so he could put water in it.
'Q. Was water put in it? A. Water was put in it.
'Q. Did you notice whether or not there was gasoline coming out of the tank when water was being put in? A. Yes, there was water and gas coming out together.
'Q. Did you make any comment to this welder with reference to that gasoline? A. Well, I said, 'It looks like that'd be pretty dangerous that gas around here like that if he starts welding,' and I don't know whether he heard me or not. He didn't say.
'Q. Did he have any comment to make on it? A. He didn't say anything so I couldn't say if he heard me or not.
'Q. What did you do then? A. Well, after he started putting water in the tank, I went across the street. My car was parked over there and I started to go home, and I heard the fire whistle, so I run back across the street and a blaze was blazing up. Somebody hollered, 'Move the bus.' The blaze looked like it was too dangerous, like I couldn't get in there without getting burned so I didn't take a chance on getting in there and getting burned so I didn't move it.
'
Ordinarily, the question of whether a certain type of conduct constitutes contributory negligence is one for the trier of fact, and only where it can be said that reasonable minds could not differ will this court disturb a contrary finding. Sandoval v. Brown, 1959, 66 N.M. 235, 346 P.2d 551. Also, whether the damage complained of was proximately caused by the negligence, if any, of the plaintiff is an ultimate fact or inference drawn by the trier of fact from the evidence and only becomes a question of law when the facts regarding causation are undisputed and all reasonable inferences that can be drawn therefrom are plainly and consistently in favor of...
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