Southern Ry. Co. v. Jeffco Fibres, Inc.

• Decision Date: 19 June 1979
• Docket Number: No. 7819SC704,7819SC704
• Citation: 41 N.C.App. 694,255 S.E.2d 749
• Parties: SOUTHERN RAILWAY COMPANY, v. JEFFCO FIBRES, INC.
• Court: North Carolina Court of Appeals

Page 749

255 S.E.2d 749

41 N.C.App. 694

SOUTHERN RAILWAY COMPANY, v. JEFFCO FIBRES, INC.

No. 7819SC704.

Court of Appeals of North Carolina.

June 19, 1979.

Hartsell, Hartsell & Mills by William L. Mills, Jr., Concord, for plaintiff-appellee.

Hedrick, Parham, Helms, Kellam & Feerick by Richard T. Feerick and Edward L. Eatman, Jr., Charlotte, for defendant-appellant.

CLARK, Judge.

Defendant contends that, pursuant to the lease agreement, defendant is not liable for damages to the freight depot caused by fire, unless the loss occurred "by reason of, or arises out of or is incidental to the use or occupancy of the property." Defendant contends that the court erred in denying defendant's motion for a directed verdict since plaintiff's evidence failed to establish that the loss was so caused.

A motion for directed verdict in a jury trial presents the question whether the evidence is sufficient for submission to the jury. Kelly v. International Harvester Co., 278 N.C. 153, 179 S.E.2d 396 (1971). Upon a motion for directed verdict made by defendant, all the evidence which supports its claim must be taken as true and considered in the light most favorable to plaintiff, giving him the benefit of every reasonable inference which may legitimately be drawn from plaintiff's evidence. Farmer v. Chaney, 292 N.C. 451, 233 N.E.2d 582 (1977); Ingold v. Carolina Power & Light Co., 11 N.C.App. 253, 181 N.E.2d 173 (1971).

Ordinarily, there is no direct evidence of a cause of a fire and, therefore, causation must be established by circumstantial evidence. See Stone v. Texas Co., 180 N.C. 546, 105 S.E. 425 (1920). "The cause of the fire is not required to be shown by direct and positive proof . . . . It may . . . be inferred from circumstances . . . . It is true that there must be a causal connection between the fire and its supposed origin, but this may be shown . . . from the admitted or known facts . . . ." Simmons v. Lumber Co., 174 N.C. 220, 225, 93 S.E. 736, 738 (1917). The plaintiff's evidence tends to show that highly inflammable goods were stored in the building; that employees of the defendant had smoked inside the depot and that the fire originated in the center of the building, smouldered there for some time on the floor, and then flared up. The fire was discovered at approximately 7:00 p. m. only a few hours after the defendant's employees had left work. The fire was starting to burn the roof when it was discovered. Taken in the light most favorable to the plaintiff, there is sufficient circumstantial evidence to establish that the fire originated inside the building in an area controlled by defendant, and that the loss occurred by reason of or was incidental to defendant's occupancy of the depot.

Defendant also assigns error to the trial judge's failure to define and explain the legal import of the phrases "by reason of," "arising out of," and "incidental to" which appeared in the lease agreement, and that the jury, therefore, did not know that they were required to find a causal connection between the defendant's use or occupancy of the depot and the plaintiff's loss.

The trial judge charged the jury, in pertinent part, as follows:

"Now, in this case and as to this first issue, the plaintiff, Southern Railway, has the burden insofar as these two things are concerned: First, that if the plaintiff has suffered damages and loss and second, that these damages or losses were incurred by reason of or arose out of or were incident to the occupancy or use by the defendant, Jeffco Fibres, of the premises, herein specifically the old freight depot here in the City of Concord.

Now, Members of the Jury, proof of burning alone is not sufficient to establish liability, for if nothing more appears, the presumption is that the fire was the result of an accident or some providential cause, but, in this particular case, this lawsuit, the matter of this fire is not a matter of negligence, where proof of negligence and proof of proximate cause are involved.

Here there was a lease existing between the parties. That is, plaintiff's Exhibit Number One and Defendant's Exhibit Number Two, which had a provision contained therein as to a fire loss. The lease provides, in part, section nine, the liability of the parties to this agreement as between themselves, for at the time, personal injury, property loss, and damage, which occurs by reason of or arising out of or is incidental to the use of occupancy by licensee herein, means Jeffco, the defendant, of the property covered by this agreement shall be determined in accordance with the following provisions: (a) Licensee, that is, Jeffco, the defendant, shall be solely responsible for and shall bear all cost and expenses and liability resulting from loss of or damage to property by fire, whether or not negligence on the part of the company, that is, the Southern Railway Company, may have caused to contributed to such loss or damage. . . .

So, I charge, Members of the Jury, as to this the first issue, that if you find from the evidence and by its greater weight that on or about November 14, 1973, that there existed a lease dated March 15, 1972, between the parties, and that on November 14, 1973, the freight depot building of the Southern Railway was being occupied and used by the defendant, Jeffco, pursuant to this lease and that by reason of the use or the occupancy of the building by Jeffco, or arising out of the use or occupancy of the premises by Jeffco, or incident to the use or occupancy of the building by Jeffco...