United States Fire Insurance Co. v. Milner Hotels, 15716.
Decision Date | 01 April 1958 |
Docket Number | No. 15716.,15716. |
Citation | 253 F.2d 542 |
Parties | UNITED STATES FIRE INSURANCE COMPANY, a corporation of New York, and Western Fire Insurance Company, a corporation organized in the State of Kansas, Appellants, v. MILNER HOTELS, Inc., a North Dakota corporation, Appellee. |
Court | U.S. Court of Appeals — Eighth Circuit |
P. W. Lanier, Sr., Fargo, N. D. (Lanier, Lanier & Knox, Fargo, N. D., with him on the brief), for appellants.
J. Gerald Nilles, Fargo, N. D. (Nilles, Oehlert & Nilles, Fargo, N. D., with him on the brief), for appellee.
Before GARDNER, Chief Judge, and JOHNSEN and VOGEL, Circuit Judges.
Appellants are fire insurance companies. They had issued policies upon a restaurant located in the Earle Hotel at Fargo, North Dakota. The restaurant space was leased by the insured from appellee, which was the owner and operator of the hotel. The building, including the restaurant, was destroyed by a fire, which occurred on December 13, 1951.
The loss to appellants' insured from the fire was $19,975, which they paid to him under their policies. They took subrogation receipts and later brought suit against appellee to recover the amount of their payments, on the ground that the fire and their insured's loss had been occasioned by appellee's negligence.
The jury returned a verdict for appellee, and appellants seek reversal here, urging as error the trial court's denial of their motion for a directed verdict and of their motion for judgment notwithstanding the verdict.
It is their contention that the evidence required the holding as a matter of law that appellee was guilty of lack of due care in having allowed the electric wiring system of the hotel to remain in its existing condition, and further that this condition necessarily had been the cause of the fire.
There was evidence showing, without dispute, that the Fargo Fire Department had made periodical inspections of the hotel, as of all the buildings in the downtown section of the city, and routinely called to the manager's attention any general or special conditions throughout the building which they felt should be corrected or noted. None of the inspections occurring prior to October, 1951, are of special significance here, except perhaps in relation to the criticism orally voiced to the manager about drop cords which had been attached to the ceiling fixtures in many of the rooms and their seeming use by the tenants for appliance purposes, as indicated by the presence of a heater plate, or a coffee pot, or a toaster, etc., in some of the rooms. The manager was on each of the inspection occasions requested generally to see that the tenants did not put the drop cords to such use. There were no other outlet sockets in the rooms, to which appliances could be connected.
Ordinarily, a letter was also sent to the manager after each inspection, with general, precautionary recommendations, conventional to other business buildings as well, such as that "a licensed electrician be hired to check all the wiring"; that "a check be made to determine if the circuits are overloaded"; and that "if the circuits are overloaded, additional circuits be installed".
In October, 1951, however, following a regular inspection, the Assistant Fire Chief, who was the head of the Fire Prevention Bureau, made the direct recommendation, in his letter to the hotel manager, that "sufficient out-let sockets be installed to eliminate the improper use of extension cords".
No demand was made for any concrete or immediate action on the part of the hotel. Under the ordinances of the city, such a demand could legally be made by the city electrical inspector, for a 48-hour correction of any hazardous electrical condition which he should find to exist in a building, and with authority in him to cut off the supply of electricity, if the correction was not so made.
In November, 1951, the city electrical inspector, presumably at the request of the fire department, purported to make a general inspection of the wiring system of the hotel. Under date of November 27th, he addressed a letter to the manager of the hotel, stating that his examination convinced him that "the entire electric wiring system within said hotel is unsafe as well as inadequate regarding the safety of occupants and adjacent property"; that he should have to officially insist that "all deteriorated wiring be replaced"; and that he would "appreciate your co-operation on this matter at the earliest possible date".
The next day, November 28th, he sent another letter to the manager, in which he specifically ordered that correction or replacement be made of a "60 ampere disconnect" switch, the circuit of which was feeding the outlets in some of the rooms on the second and third floors of the hotel. It was on the third floor that the fire which occurred on December 13th was discovered.
The letter made no other express requirement than that the particular switch be corrected or replaced. As produced from the files of the fire department, the letter was in form a "public demand", stating as to the "60 ampere disconnect" referred to, as follows: .
The testimony of the city inspector on the witness stand could, however, be viewed by the jury as not being as impressive or authoritative with respect to the situation as his two letters had purported to be. Thus, he admitted, in relation to his first letter, that he had not intended, nor did he state to the manager, that there had to be a whole new wiring system for the hotel. What he primarily desired done, he said, was to have some additional circuits put in, with the electrical contractor who might be employed being left free to exercise his judgment and make use of whatever parts of the old system "he deemed satisfactory for use". And as to his demand of the following day, for correction of the "60 ampere disconnect" condition, he stated that his purpose was to get a 60 ampere cartridgefuse installation, which he had found existing, replaced by a panel of 15 ampere plug fuses. This was because of the fact that the general wiring system of the hotel consisted of No. 14 wire, for which the testimony showed that the proper fusing was 15 amperes. So far as the evidence indicates, all the rest of such circuits in the hotel were thus fused, and the "60 ampere disconnect", which was made the subject of demand, was the only one that required correction or reinstallation in this respect.
The "public demand" letter of November 28th, to have the improperly fused switch-installation...
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