T. & C. Insurance Company v. Fouke

• Citation: 127 S.W. 461,94 Ark. 358
• Parties: T. & C. INSURANCE COMPANY v. FOUKE
• Decision Date: 28 March 1910
• Court: Supreme Court of Arkansas

127 S.W. 461

94 Ark. 358

T. & C. INSURANCE COMPANY v. FOUKE

Supreme Court of Arkansas

March 28, 1910

Appeal from Miller Circuit Court; Jacob M. Carter, Judge; affirmed.

Action by the T. & C. Insurance Company and others against G. W Fouke and others. From a judgment for defendants plaintiffs have appealed.

Judgment affirmed.

Frank S. Quinn and R. M. Mann, for appellant.

It was error to admit evidence to show that the lamp was used carefully. 55 S.W. 534; 13 S.E. 459; 11 S.E. 499. As to whether it was used carefully was a question for the jury. 81 Ark. 591; 110 S.W. 99; 67 Ark. 371. It is error to admit evidence of the general skill and competency of an employee. 85 F. 353; 115 F. 268; 76 Ark. 302; 58 Ark. 454; 3 L.R.A 363; 54 N.W. 208; 48 S.W. 835. Ordinary care in all cases is proportioned to the danger to be apprehended. 61 Ark. 381; 65 Ark. 255; 84 Ga. 420; 11 S.E. 499; 94 U.S. 454; 69 N.E. 557; 80 S.W. 429; 166 U.S. 617; 89 S.W. 324; 86 Ark. 329; 89 Ark 522. It is error to submit question to the jury about which there is no evidence. 78 Ark. 553; 72 Ark. 440; 88 Ark. 20.

Webber & Webber, for appellee.

The witness' statement that the lamp was carefully used was properly admitted. Thom. on Neg., § 7750, 7751, 7752, 7753. The onus probandi is upon appellant throughout. 163 N.Y. 447; 57 N.E. 751; 82 N.E. 1025; 16 L.R.A. (N.S.) 527. On the doctrine of res ipsa loquitur, see 15 L.R.A. 33; 184 Pa.St. 519; 39 L.R.A. 842; 41 L.R.A. 478; 21 L.R.A. 256.

OPINION

FRAUENTHAL, J.

This was an action to recover damages done to a frame dwelling in the city of Texarkana caused, as it was alleged, by the negligent setting out of fire. The house was owned by F. W. Hill, one of the plaintiffs below, and at the time of the fire it was insured against loss or damage from such cause by the other plaintiff, T. & C. Insurance Company, who, under the terms of the policy of insurance, having paid the damage to the house, became subrogated to all rights and claims which said Hill had against the defendant, and joined said Hill in this suit.

The owner employed the defendants to repaint the dwelling, and they agreed to steel brush and sand paper said building to a smooth surface before repainting it. They proceeded with the work, and claimed to have completed same in accordance with the contract. The owner claimed that a portion of the house had not been properly repainted, but made full payment to the defendants for the work. The defendants agreed to repaint this portion of the house, but told the owner that it could only be done by burning off the paint already put on that portion of the house, and the owner assented to the work being done in that manner. In order to remove the paint, it was necessary to burn it off with a blow lamp. This was done by applying the flames to the paint on the surface of the wood and following it with a knife and scraping off the paint while thus heated by the flames. The defendants sent one of its employees to do the work, and while he was thus engaged the house caught fire. At this time the house was occupied by a tenant who had built a fire in his stove in the house on the same day. There was a conflict in the testimony as to the manner in which the fire occurred. The plaintiff contended that it was caused by the flames from the blow lamp, and the defendants claimed that it was caused by a defective flue in the house. There was sufficient evidence introduced to sustain a finding that the fire had occurred from either cause.

Upon its own motion the court gave the following instruction to the jury:

"B. Under the pleading and evidence in this case the burden is on the plaintiff to show by a preponderance or greater weight of the evidence that the defendants, through agents or employees, set out the fire that caused the destruction of the property in question. If you fail to find that from a preponderance of the testimony, your verdict will be for the defendants. But if you find from a preponderance of the evidence as heretofore told you that the defendants did, through their agents in the execution of this work, set out the fire that caused the destruction of the property in question, then you will find for the plaintiff, unless the defendants have shown, either from their own testimony or from all the testimony in the case, that they used ordinary care in the execution of the work to prevent the setting out of the fire. What is meant by the term 'ordinary care' in the foregoing instruction is that the defendants used such care as an ordinary prudent man would use in the execution of similar work under similar circumstances."

At the request of the plaintiffs it gave the following amongst other instructions:

"6. You are instructed that if you believe from the evidence that the employee of defendants, in burning the paint off said dwelling house mentioned in plaintiff's complaint with a lighted blow lamp, failed to use such care as the nature of the employment and the situation and circumstances required of an ordinarily prudent person, having had experience and skill in such work, and that by reason thereof the said house was set on fire, by which said house was destroyed or damaged, you will find for the plaintiffs."

At the request of the defendants the court gave the following instruction:

"3. If you believe from the evidence that the house was set on fire by the use of the blow lamp in the hands of defendants' employee, but that said employee was a competent man, and used due care in the use of said lamp, and that such fire was the result of causes beyond his knowledge and control, your verdict should be for the defendants."

The jury returned a verdict in favor of the defendants, and the plaintiffs prosecute this appeal.

The plaintiffs do not contend that there was not sufficient evidence adduced in the trial of the case to sustain the verdict; but they urge that errors were committed by the trial court in the admission of certain testimony and in the giving and refusing certain instructions. The employee of the defendant who was engaged at the work at the time of the fire was a witness in the case. He described in detail the manner in which he was using the lamp and doing the work. The work required skill and expertness in the handling of the lamp and in obtaining the proper heat when the flames were applied to the wood surface. He testified that he had twenty years' experience in the work, and was skillful in the performance of the duties of the undertaking. Over the objection of plaintiffs, he was asked by counsel for the defendants whether "the lamp was used carefully at the time," to which he replied that it was. Counsel for plaintiffs urge that this testimony was inadmissible because it was but the opinion of the witness. We do not think that the admission of this testimony was erroneous. The witness had testified in detail as to the manner in which he handled the lamp and did the work in order to show the care with which it was done. It was difficult, if not almost impossible, to present the manner in which the lamp was manipulated, as it was done with quick movements; the witness had given all the details to which he could give expression, and these facts were presented to the jury so that they understood that this inference of the witness was based upon these facts that they were to pass on themselves, and they could not have been misled thereby. It is true that ordinarily the opinion of a witness as to whether or not an act was done carefully is not admissible. But "where the facts are of such a character as to be incapable of being presented with their proper force to any one but the observer himself, so as to enable the tryers to draw a correct or intelligent conclusion from them, without the aid of the judgment or opinion of the witness who had the benefit of personal observation, he is...