National Fire Ins. Co. v. Denver Consol. Elec. Co.

• Decision Date: 11 February 1901
• Citation: 16 Colo.App. 86,63 P. 949
• Parties: NATIONAL FIRE INS. CO. et al. v. DENVER CONSOL. ELECTRIC CO. et al.
• Court: Colorado Court of Appeals

63 P. 949

16 Colo.App. 86

NATIONAL FIRE INS. CO. et al. v. DENVER CONSOL. ELECTRIC CO. et al.

Court of Appeals of Colorado

February 11, 1901

Appeal from district court, Arapahoe county.

Action by the National Fire Insurance Company and others against the Denver Consolidated Electric Company and others. From a judgment in defendants' favor, plaintiffs appeal. Affirmed.

R.W. Barger, Platt Rogers, and Percy Wilson for appellants.

I.N Stevens and F.W. Lienau, for appellees.

BISSELL P.J.

This is a case without a prototype. We have been cited to none at all similar, nor to any precedent which in our judgment even remotely tends to uphold the cause of action stated. This neither demonstrates nor tends to demonstrate that the plaintiffs have suffered no wrong, nor that they are without a remedy for that stated, but it leads the court to be somewhat critical in the examination of the positions which the appellants have assumed.

The suit was begun by some ten or a dozen insurance companies against the Denver Consolidated Electric Company to recover the amount which they had paid to the depot company for a loss. In March, 1894, fire broke out in the Union Depot, and pretty nearly destroyed one end of the building, and the insurance companies were compelled to pay some $60,000 for the loss. After paying it they brought this suit against the electric company for reimbursement. Disregarding any discussion of the query whether the insurance companies could maintain such a suit under any circumstances, even though the electric company had been responsible for the fire, we shall put the affirmance on the precise ground that they failed to make any proof or offer any evidence which tended, save most remotely, to establish the cause of the fire. The companies likewise failed to prove or offer to prove, or submit evidence which tended to prove, that the electric company was in any wise responsible for the loss. In other words, they wholly failed to produce any proof which would lay the responsibility for the fire on the electric company. The complaint stated several causes of action, but we shall dismiss the first two because no evidence was offered about them. These related to the careless and negligent manner of the wiring, the unsafe and dangerous character of the wire used, and charged that the fire was caused by this negligence. When it came to proof, however there was nothing tending to show that the electric company had anything to do with the wiring or with the inspection of the wires, or that it made any contract or entered into any engagement to keep the wires in good repair and in a safe and proper condition. Evidence was offered to the effect that the building was wired in 1888 by the firm of Baxter & Spicer, of Philadelphia, under an employment by the Union Depot Company, and that the electric light company was not a party to the agreement, and did not execute it. What was done was done by the depot company at their own expense and on their own responsibility. The electric light company, under a contract with the depot company, connected their system with the wiring, and delivered a current for use. This was the extent of the connection between the two companies, and it was simply a delivery of a current for lighting purposes by one, and the payment of an agreed price therefor by the other. Whatever, therefore, may have been the character of the wiring or the nature of the work, it was a matter with which the electric light company was not chargeable. If it was negligently done, the negligence was the negligence of the depot company which put it in, or of the firm which that company hired, whose negligence would, of course, be the negligence of the depot company. There was a total absence of evidence which sustained or which tended to sustain any knowledge on the part of the electric light company of the character of this wiring. The only evidence which they presented on this subject was that of Stern, who testified that in 1888, when this wiring was put in by Baxter & Spicer, he was the superintendent of construction for one or more of the companies which by consolidation became the Denver Consolidated Electric Light Company; that casually, from time to time, he saw this work as it was done by Baxter & Spicer,--saw the nature of the wiring and the method of its attachment. He was not very precise or positive in regard to its character. In other words, at the time the wiring was put in he does not appear to have been particularly impressed with any negligence on the part of Baxter & Spicer, nor with the defective character of the wiring, or the unskillful method of its attachment. At all events, if he was so impressed he said nothing about it. There was no evidence that he stated what he saw to any of the officers or directors of the electric light company. So far as we can see, he was an employé occupying perhaps a controlling position with reference to other workmen in the service of the electric light company, being the superintendent of construction; but he was not an officer of that company, nor was he a director in the corporation. He never examined the building to determine whether the wiring was adequate, nor whether it was properly put in. His observation was simply casually made as he went about the city looking after the construction of the plant of the electric light company, and the connections which were to be made with the various buildings in the process of construction. There was also a good deal of evidence offered, and some offered which was refused, tending to show that the wiring was, at the time of the trial, at least, and possibly at the date when it was put in, inadequate and unsafe. It was what is known as "underwriter's wire," which the experts testified was not the best kind of wire to be used about a building of that sort, though it is entirely safe if perfectly insulated. There was evidence which tended to show that the wires were run through holes in the rafters, and then along laths or slats, and had more or less connection with the woodwork. There was testimony which tended to show that, after the wiring had been put in, the wires had been unduly loaded with lights, which, as the experts say, tends to concentrate the heat to the largest wire, and has a tendency to unduly increase the heat at given points, and, if at those points it strikes the wood, may char and ultimately cause a fire. We have not attempted to state all the evidence in this direction, but this is substantially the purport and tendency of the proof which was offered.

There is another basis on which the appellants attempt to rest their cause of action,--the circumstances of the fire. There was proof that in the evening, along about 11, a chandelier which was unlighted in the ladies' waiting room fell. The depot master immediately telephoned the electric light company to send a man down. For what purpose, and what sort of a person he wanted sent, the evidence does not disclose. There was nothing to show that he called for an electrical expert, or a man who was competent to determine whether the condition was a dangerous one. A man reported, presumably and ostensibly from the electric light company. He examined the chandelier, and went up into the upper story, and found the fuse had burned out which furnished the light in that section of the depot. He apparently made no extensive examination of the condition of the wiring. He was not requested by the depot master to do otherwise than to ascertain the cause for the fall of the chandelier and the trouble with the lights and to see that in this respect everything was rendered safe. When he came downstairs the depot master inquired of him whether there was any danger, and he replied "No," and stated that it would be difficult to make the repair that night, but he would come down in the...