U.S. v. DeRose Industries, Inc., 75-1300
| Citation | 519 F.2d 1066 |
| Decision Date | 19 September 1975 |
| Docket Number | No. 75-1300,75-1300 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. DeROSE INDUSTRIES, INC., Defendant-Third-Party Plaintiff-Appellant. v. AMERICAN STANDARD, INC., et al., Third-Party Defendants. Summary Calendar. * |
| Court | U.S. Court of Appeals — Fifth Circuit |
Timothy E. Kelley, Dallas, Tex., for defendant-third-party plaintiff-appellant.
Roby Hadden, U. S. Atty., Houston Abel, Asst. U. S. Atty., Tyler, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Eastern District of Texas.
Before COLEMAN, AINSWORTH and SIMPSON, Circuit Judges.
The only issue presented by this case is whether the trial judge erred in denying defendant's motion for a new trial. Since we find no error we affirm.
The plaintiff, United States (Government), sued DeRose Industries, Inc. (DeRose) for breach of contract and breach of warranties stemming from a fire which destroyed a government building that DeRose had constructed. The Government alleged that the fire was caused by an improperly installed hot water heater which was placed too close to a flammable wall in violation of the clearance specifications of the contract between the Government and DeRose. DeRose denied that the fire resulted from heat being conducted from the water heater to the adjacent wall. Alternatively, appellant argued that the Government's acceptance of the completed construction was conclusive except as to "latent defects, fraud or gross mistakes" and that if the water heater was improperly installed it was a patent defect. On appeal, DeRose has abandoned its contentions concerning the patency of the defect and now relies on the sole ground that the jury made an "irrational" finding in concluding that the fire could have been caused by the close proximity of the water heater to a flammable wall.
On July 22, 1965, the Government contracted with DeRose to build some prefabricated trailers for use as dormitories for a Job Corps Conservation Center in Ottawa, Ohio. DeRose erected two of the dorms, which were completed November 22, 1965. The Government inspected the trailers, accepted them as substantially complete and allowed the Job Corpsmen to occupy them as of February 2, 1966. On March 7, 1966, the Government made final payment to DeRose for constructing the dormitories. However, on April 5, 1966, Dormitory 2 caught fire and was totally destroyed with damages being stipulated at $101,693.79.
The jury found specifically that the fire in question was caused by the close proximity of the hot water heater to the adjacent wall of the hot water heater closet. The District Judge denied DeRose's motion for a new trial and from this denial the appeal contends that the jury verdict was irrational and based on false information for three reasons: (1) because the water heater in question was insulated and incapable of sufficient external heat to cause a fire; (2) because wood cannot possibly ignite at 180o F., which was the maximum rated temperature for the water heater; and (3) because the opinion of the Government's expert witness was formulated after testing a wall material which was not found in the heater closet.
DeRose's first contention that the jury verdict is irrational is based on the belief that the outside jacket of the water heater was incapable of reaching 180o because the water heater was insulated. The only support for this contention is the testimony of a wholesale plumbing dealer who was shown a picture of a water heater made by the same manufacturer and stated that he assumed it would be insulated 1 and in his opinion would never get hot enough to cause a fire, 2 and the testimony of defendant's expert witness who was of the opinion that the heater was insulated. 3 To the contrary, the Government's expert testified that the heater in question was not insulated, although he admitted that h...
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