Providence-Washington Ins. Co. v. Iowa Telephone Co.

• Citation: 154 N.W. 874,172 Iowa 597
• Decision Date: 24 November 1915
• Docket Number: 30409
• Parties: PROVIDENCE WASHINGTON INSURANCE COMPANY, Appellant, v. IOWA TELEPHONE COMPANY, Appellee
• Court: Iowa Supreme Court

154 N.W. 874

172 Iowa 597

PROVIDENCE WASHINGTON INSURANCE COMPANY, Appellant, v. IOWA TELEPHONE COMPANY, Appellee

No. 30409

Supreme Court of Iowa, Des Moines

November 24, 1915

Appeal from Scott District Court.--HON. A. P. BARKER, Judge.

ACTION for damages against the defendant Telephone Company for alleged failure to deliver promptly a fire call to the fire department of the city of Davenport, whereby the plaintiff's assignor suffered a fire loss which might otherwise have been prevented. At the close of plaintiff's evidence, there was a directed verdict for the defendant. The plaintiff appeals.

Affirmed.

Ely & Bush, for appellant.

Parker Parrish & Miller and Cook & Balluff, for appellee.

EVANS J. DEEMER, C. J., WEAVER and PRESTON, JJ., concur.

OPINION

EVANS, J.

The plaintiff is an insurance company, which had issued an insurance policy to one J. T. Haller against damage by fire to his automobile. The automobile was destroyed by fire. In pursuance of the policy, the plaintiff paid the loss to the amount of $ 2,750, and took an assignment from Haller of his alleged cause of action against the defendant for negligent delay in transmitting the fire call. The fire call reached the fire department at 11:30 P. M. The record of the telephone company shows also that this was the time of the receipt of the call from Haller. The claim of Haller, however, is that he sent in the call within a few minutes after 11 o'clock, and that there was a gross delay in transmitting the same. The following excerpts from his testimony will indicate the general nature of it:

"I live at 730 East Fourteenth Street and was living there June 23, 1913. I had a fire in the barn back of my house. Fourteenth Street runs east and west and I live on the north side of the street. The barn was north of the house. It faced to the south with the doors opening toward my house. . . . Five minutes or so after eleven o'clock, I first saw this fire. I didn't think it was more than 5 minutes after 11 at the time when I first saw it. It was under the rear end of the machine. I set down the can I had in my hand and jumped over the front end and got into the barn, went into the house and telephoned. I picked up the receiver; when I got a response, I told the girl there was a fire at Fourteenth and Grand Avenue. I took the receiver off and that called central automatically. Then someone at central answered and I told her there was a fire at my place at Fourteenth and Grand Avenue. She didn't say anything when I told her that that I remember. Then I hung up the receiver and went out in the back yard and watched the fire. There was a fire under the back end of the machine, a kind of a bluish flame that hadn't taken hold of the automobile itself. Then I waited quite awhile and walked out toward the front of the house and was listening for the fire bells."

CROSS-EXAMINATION.

"I ran the auto into the barn from the driveway in the yard. It had double doors on the south side and was partitioned into one large room to the east and some box stalls and a large room toward the west. I used the west room for storage of the machine. It was about four or five feet longer than the machine and not quite twice as wide. The machine had a hundred and thirty inch wheel base and must have been fifteen or sixteen feet long and the room four or five feet longer than that. The front end of the machine was about as far north as it would go--drove it up to a lot of old crates in there. The gasoline storage tank was underground outside of the barn and the pipe from that storage tank came into the room where I kept the machine.

"Beside the double door, there was a small door toward the north end that communicated with the east half of the barn. There was no outside door except the double doors that I drove the machine through. I had been out to take a lady caller home. The machine was standing outdoors alongside the house and she had been calling on my wife and I took her home, running about five blocks in all.

"I did not pay particular attention to just what the hour was with any degree of exactness. When I returned I ran the machine into the barn and undertook to fill the tanks. The big tank at the rear of the machine held between twenty-five and thirty gallons. I used a kerosene tail light to fill the tank. I do not remember any other lamps burning. I filled the big tank so that it was full and overflowing. I got the gasoline from the storage tank, pumping it into a can like a large milk can, holding nine or ten gallons. I do not know that there was any gasoline spilled in pumping. When I filled the big tank, it filled quicker than I expected and ran over. I have no way to fix the amount spilled. I used a specially constructed funnel that would hold a gallon and a half probably. I have no clear impression about how much gasoline there was in the funnel when it started to overflow. I don't remember whether it was the second or third can. I had put at least one can full into the tank. I think there was more than a quart that run over, maybe more than a gallon. What was left in the can I undertook to pour into an emergency tank under the seat holding not over ten gallons. My can was perhaps half full.

"I was standing on the sideboard, wedged between some old furniture crates and then I noticed that this became ignited on the floor under the machine. Whether I was in the act of pouring I do not remember.

"The funnel was in there. After the rear tank overflowed, I did not screw the cap on that. It was left open and the ten gallon tank under the seat was open with the funnel sticking in, as I remember it, and I had perhaps half a gallon of gasoline which I was either pouring or preparing to pour into the little tank, and at that time noticed a flame under the rear axle almost directly under the big tank. I knew there was forty or forty-five gallons of gasoline open there. I was interested in the can I had in my hand. It and the big tank on the rear and the little tank under the seat were all subject to ignition. I did not stop to investigate, but left. All I know of the flame under the rear of the car is that there was not enough flame to help me when I got into the other part of the barn where the box stalls were. There wasn't enough to illuminate the place to give me a chance to see where I was going. There was one door into the alley that I had never used and I tried to get out there, but that was locked; and there was a little passage way and a door near the house and it was dark in there and I could not see much, so there wasn't enough illumination near the machine to throw any rays of light into this other part of the barn. That was cut off by the partition, and there wasn't enough light came through the doorway to show me my way. There is a partition in the middle of the barn and I got over the front of the machine in some way and I finally got out of this little doorway which is shown on the picture at the south side of the barn. It was dark in there. It didn't take long for me to get out of the barn but the door was closed and I could not see the light in the kitchen, I remember that, so I didn't know but what the door had been locked on the...