NEWARK INSURANCE COMPANY v. Davis
| Decision Date | 23 March 1956 |
| Docket Number | Civ. A. No. 764. |
| Citation | 139 F. Supp. 396 |
| Court | U.S. District Court — Southern District of West Virginia |
| Parties | NEWARK INSURANCE COMPANY, Plaintiff, v. Jack W. DAVIS, Defendant. |
John E. Jenkins (Jenkins & Jenkins, Huntington, W. Va., on brief), for plaintiff.
E. A. Marshall (Fitzpatrick, Marshall, Huddleston & Bolen, Huntington, W. Va., on brief), for defendant.
Here the plaintiff insurance company seeks to recover from the defendant the amount it has paid to its assured under a fire insurance policy on the theory that the building was set on fire by reason of the negligence of the defendant.
The fire occurred on the premises of the Evans Grocery Company at 2445 Third Avenue in the City of Huntington, West Virginia, on the evening of August 18, 1954. The defendant is a construction contractor and at the time of the fire was engaged in constructing an addition or an enlargement to the existing building. The plaintiff had insured Evans Grocery Company against damage occasioned by fire, and upon payment of the damages is subrogated to the rights of Evans Grocery Company in this action. The case was tried by the court in lieu of a jury. There is much conflict in the evidence, a conflict which can only be resolved by disregarding much of the testimony of some of the witnesses as untrustworthy. After hearing the testimony and observing the demeanor of the witnesses, the court makes the following findings of fact and conclusions of law:
Findings of Fact.
It appears that during the construction work it was necessary to weld steel plates to the stringers, or I-Beams, and the trusses of the existing building. To do this the edge of the roof was rolled back exposing the area where the welding was to be done and creating an opening from the outside of the building into the attic. At the end of the day on August 18, 1954, one Cornell, an employee of defendant, had been welding in the opening at the edge of the roof and on the second column from the front of the building. Cornell was called as a witness for the plaintiff. He testified that he welded with his torch pointed straight into the building; that his welding torch gave off white hot sparks which went into the loft of the building in a steady stream of sparks in an area where there was wood sheathing and paper covered rock wool; that the sparks were flying in and around the sheathing; that during this welding operation he used a board shield, but that he knew it was not the proper type of shield in that it was not notched so as to fit tightly against the curvature of the "I" beams and prevent sparks from entering the loft of the building; that he remarked to a fellow employee (whose name he did not recall) that it would cause a fire; that properly notched boards were made and given to him the morning after the fire; that he knew the building might catch fire and that if he had had a properly notched shield it would have prevented the sparks from entering the building loft; that it was customary for welders and contractors to take greater precautions with respect to fire; and that he left the job at quitting time about four o'clock P. M. without making any inspection or looking for fire. The fire was discovered by a neighbor who saw smoke coming from the place where the welders were last working and gave an immediate fire alarm, which was received by the fire department at 5:06 P. M.
The evidence shows clearly that the origin of the fire was at the place where Cornell was last working. There was no wiring in the area of the seat of the fire which could have caused the fire. From the char found at the seat of the fire it was a smouldering type of fire at first and had been smouldering about one-half hour to two hours. The fire was in existence when the defendant's superintendent made his inspection and a careful inspection would have revealed the fire much earlier. This testimony of the three disinterested firemen as to physical conditions is worthy of belief. In response to a hypothetical question which fairly assumed the probative facts contained in the record tending to support plaintiff's theory on the question as to the origin of the fire, all stated in their opinions the fire was caused by the welding sparks.
The defendant called three witnesses to contradict some of Cornell's testimony, Erskine, Dick and Miller. There is much inconsistency and actual contradiction in their own testimony. Erskine testified that he sent Dick to the welding scaffold once or twice for a total of ten minutes on the day of the fire to see if the shields were in place. Dick testified that he was on the scaffold from 8:30 A. M. until noon, and from 12:30 P. M. until 4:00 P. M. every minute they were welding; that he was there continuously during the day holding the shields. But Miller testified it was he who took care of putting the shields in place, that Dick didn't do it and that it...
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Desco Corp. v. Harry W. Trushel Const. Co.
...1987 plaintiff would suffer a destructive fire as a probable result of his breach of contract."8 Desco cites Newark Insurance Co. v. Davis, 139 F.Supp. 396 (S.D.W.Va.1956), as supporting its position. We disagree. In Davis, the court held that because the owner had no knowledge that a contr......
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