Uhlig v. Barnum
| Decision Date | 17 January 1895 |
| Docket Number | 5728 |
| Citation | 61 N.W. 749,43 Neb. 584 |
| Parties | MAX UHLIG v. EDWIN BARNUM |
| Court | Nebraska Supreme Court |
ERROR from the district court of Phelps county. Tried below before GASLIN, J.
Rhea Bros., for plaintiff in error, cited: 2 Rapalje, Law Dictionary, p. 854; Aultman v. Stout, 15 Neb. 586; Sycamore Marsh Harvester Mfg. Co. v. Sturm, 13 Neb 210; Herring v. Skaggs, 62 Ala. 180; Sanborn v Herring, 6 Am. Law Reg., n. s. [N. Y.], 457; Walker v. Milner, 4 F. & F. [Eng.], 745; Passinger v Thorburn, 34 N.Y. 634; White v. Miller, 71 N.Y 118; Milburn v. Belloni, 39 N.Y. 53; Wolcott v. Mount, 36 N.J.L. 262; Flick v. Wetherbee, 20 Wis. 392; Barradarle v. Brunton, 8 Taunt. [Eng.], 535; Maynard v. Maynard, 49 Vt. 297; Brown v. Edgington, 2 M. & G. [Eng.], 279; Hayster v. Owen, 61 Mo. 270; Smith v. Tunno, 1 McCord [S. Car.], 443; Thurston v. Ludwig, 6 Ohio St. 1; Grimson v. Russell, 11 Neb. 469.
McPheely & St. Clair, contra.
The defendant in error, who was plaintiff in the district court, alleged in his petition that from the 13th of November, 1889, he had been the owner of certain land in the town of Loomis, in Phelps county, and that up to the 25th of March, 1891, he had on said premises a frame hotel building then worth $ 2,000, and personal property within said building worth $ 1,200; that in December, 1889, he entered into a written contract with the defendants in the district court, Grable & Uhlig, whereby the defendants, in consideration of $ 162, undertook to construct and put into said hotel building a furnace for the purpose of heating said building, and that all work connected with said furnace should be done in a good and workmanlike manner, safe and suitable for the purpose intended; that the defendants did not construct said furnace in a safe or workmanlike manner, but negligently, and that the cold air boxes were carelessly constructed and placed so as to be dangerously exposed to the heat generated by the furnace, said boxes being constructed of wood, and that by reason of the negligent and unworkmanlike construction of said furnace and cold air box said box took fire, which fire was communicated to the hotel building, whereby it was burned, to plaintiff's damage in the sum of $ 3,200, for which sum the plaintiff prayed judgment. Grable answered setting up a dissolution between him and Uhlig before the transaction complained of took place, and denying all connection therewith; whereupon the plaintiff dismissed as to Grable. Uhlig answered by a general denial. There was a trial to a jury, and a verdict and judgment for the plaintiff for $ 500. The defendant prosecutes error.
It appears from the record that a single instruction was given by the court at the plaintiff's request. This instruction does not appear in the transcript, but by the clerk's certificate it would seem that the instruction was never returned by the jury, and has not been, since the jury retired, in the custody of the clerk, or with the record. One of the assignments of error is that the court erred in rendering judgment after the loss of the instruction. Grimison v. Russell, 11 Neb. 469, 9 N.W. 647, is cited in support of that assignment. In Grimson v. Russell judgment was entered against the objection of the defendant after all the pleadings were lost and without the record containing substituted pleadings. Except where judgment is rendered by consent it was said that the record must always disclose at least the petition upon which the judgment is based, and that even in the case of a judgment by consent the judgment or something in the nature of a petition must disclose the cause of action, in order to protect the defendant against further litigation upon the same cause. Attention was called to the defect in the record before the judgment was entered, no substitution was made of copies for the lost pleadings, and the entry of judgment against defendant's objection deprived him of all opportunity to have the case reviewed upon its merits. In this case no objection was made in the motion for a new trial, or otherwise, to the entry of judgment, on account of the loss of the instruction. The defendant seeks to excuse this by saying that the loss was not known to him at that time. But he had the means of knowledge, and was certainly as much bound to know of the loss as either the court or the adverse party. This is a court of review, and the question raised not having been presented to the district court will not be here considered.
The most serious assignment of error relates to the sufficiency of evidence to sustain the verdict rendered. It appears that in November, 1889, a written contract was made, as follows:
On the trial no question was made as to Johnson's authority or as to the fact that while the contract was made in the name of Grable & Uhlig it was in fact made on behalf of Uhlig alone. The furnace was put in under the supervision of Johnson. Barnum, who was a brick-mason, made the excavation and laid the foundation, but he acted under Johnson's direction. Men employed by Barnum about the construction of the hotel built the cold air boxes, but in so doing they too acted entirely under the direction of Johnson. A cold air box was constructed from the outer wall about on a level with the top of the furnace to a point near the furnace where an elbow was placed and the box continued downwards parallel with the furnace to its base. The upright portion of the box was within a very few inches of the furnace. Barnum complained that this construction might be dangerous, whereupon Johnson said that he would put asbestos paper over the box and that it would then be safe. The exposed portion of the box was covered with asbestos paper and some tin was used. The furnace was completed in February, 1890, and used to a certain extent that spring. It was also used during the winter of 1890 and 1891. During this time complaints were made to Uhlig that it did not properly heat the building. On March 13, 1891, the cold air box referred to was discovered to be on fire inside. It was broken open, the fire extinguished, the boards partly replaced and some galvanized iron also used; in what manner does not appear. Barnum continued to use the furnace, but immediately wrote Uhlig, and Uhlig came to Loomis and another contract was entered into as follows:
On the morning of March 25th Barnum arose about 6 o'clock, went to the cellar, found a low fire in the furnace, shook out the ashes, put on coal and returned upstairs. A snow storm was then prevailing accompanied by a strong northeast wind. In about an hour smoke was discovered coming through a register. Barnum attempted to go down cellar, but found it so filled with smoke that it was impossible to enter. From the stairs, however, he could see a blaze at the base of the cold air box. The house with a portion of its contents was destroyed.
The plaintiff in error contends that in order to make out a cause of action it was necessary for Barnum to prove that the furnace was not constructed in a skillful and workmanlike manner; that the fire broke out and was communicated by reason of such improper construction and resulted from some latent defect in the apparatus itself and not to improper use thereof by Barnum. There can be no doubt of the general application of these propositions, but we think the evidence was such as to justify the jury in finding that such conditions existed. It is true that all the expert testimony was to the effect that the mode of construction adopted was proper. But on the other hand it must strike any person of ordinary observation that the placing of wooden boxes within a few inches of a furnace intended to be kept hot is a hazardous proceeding. Whether the use of asbestos paper was a sufficient safeguard against communication of fire was debatable and a proper question for the jury. The evidence showed that this material would be destroyed by long exposure to intense heat; that when heat was applied to it to a sufficient degree it became incandescent. A witness for the defendant testified that if he had in his possession a piece of asbestos...
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