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KILGORE et al. v. NASWORTHY et al.
EVANS, Judge.
Action for damages. Cobb State Court. Before Judge White.
1. The evidence does not demand a judgment as to liability against the defendants, even though the defendants failed to provide protection such as fire extinguishers, asbestos cloth and a stand-by watch or other measures as would insure a fire-free job in the performance of their subcontract on the building which was destroyed by fire. The evidence is insufficient to show that defendants alone caused the loss although it may have authorized such a finding.
2. The language "burning or welding adjacent to, near or over combustible materials" is not clear in its meaning as to whether it would apply to a plumber sweating or soldering copper pipes through wooden studs on a construction job site. The language "stand-by watch or other measures as will insure a fire-free job" are likewise ambiguous as to what is intended by this language. See Code Ann. 20-704 (2, 3); Branch, Sans & Co. v. Palmer, 65 Ga. 210, 214; Williamson, Inman & Co. v. Thompson, 53 Ga. App. 821 (187 SE 194). The lower court did not err in allowing testimony by members of the building trades as to the meaning of certain phrases in the contract. Whenever there is any matter of fact involved as to the meaning of an obscure word, the jury should make a finding of fact thereon.
3. A letter report was made by an expert witness to defendants' counsel with reference to interrogatories and answers of certain other experts in regard to the meaning of "burning or welding." Same does not show any contradictory statements of the expert witness' testimony, so as to authorize the letter to be admitted in evidence, to impeach him (Code 38-1803; Johnson v. Roberson, 88 Ga. App. 548 (7) (77 SE2d 232); California Ins. Co. v. Blumberg, 101 Ga. App. 587 (1) (115 SE2d 266); Henry Grady Hotel Corp. v. Watts, 119 Ga. App. 251 (5) (167 SE2d 205)); nor does it show his feelings toward the parties' or his relationship or bias, so as to authorize it to be admitted in evidence in rebuttal.
4. A memorandum from the Cobb County Fire Marshal to all builders and construction companies, which is dated and issued after the fire loss occurred, is totally irrelevant, and the court did not err in excluding it.
5. The charge as a whole with reference to proximate cause was sufficient, and the court did not err in refusing to charge a request that the defendants were guilty of negligence in that they contributed to the fire.
6. There was no direct proof here that defendants caused the fire loss, the proof offered being circumstantial in nature. Therefore the court did not err in charging that the evidence must be sufficient to establish a reasonable inference that the fire originated as claimed by the plaintiffs, and that if it raises only a mere conjecture as to whether the fire was or was not so occasioned. no recovery could be had. The charge was not subject to the complaint that it was argumentative. Gainesville, J. & S. R. Co. v. Edmondson, 101 Ga. 747 (29 SE 213); Southern R. Co. v. Scott, 215 Ga. 739, 742 (113 SE2d 459); Georgia A. S. & C. R. Co. v. Collins. 117 Ga. App. 254 (1) (160 SE2d 441). We do not find the charge peculiarly favorable to one side over the other as was the case in Baucom v. Harper, 176 Ga. 296. 303 (168 SE 27). This specification of error is not meritorious.
This case is on appeal by the plaintiffs from the overruling of their motions for new trial and judgment notwithstanding the verdict. The plaintiffs sued the defendants for damages arising from a fire which destroyed a building in an apartment complex owned by the plaintiffs. The complex at the time of the fire was still under construction, having numerous and various employees of the contractor and subcontractors located about the premises. The defendant is a plumbing subcontractor whose employees were working in the destroyed building, sweating copper pipes with acetylene torches shortly before the fire was discovered. The petition is in two counts, complaining that the defendants were responsible for the fire, either because of misfeasance or nonfeasance. Count 1 charges the defendants with negligence in performing certain plumbing work, i.e., soldering of copper pipes near wooden studs. Count 2 charges the defendants with a failure to provide or perform certain contractual safeguards to assure a fire-free job in the performance of the subcontract. The pertinent language of the contract on which the plaintiffs rely is as follows: "24. Important! When doing any burning or welding adjacent to, near or over combustible materials, the subcontractor is responsible for providing such protection such as fire extinguishers, asbestos cloth, stand-by watch or other measures as will insure a fire-free job. Job superintendent should be consulted when doubt or question prevails as to the extent or method of protection required." Much of the testimony during the trial revolved around the meaning of the phrase "burning or welding adjacent to, near or over combustible materials" in the above covenant, as understood in the building trades. There was testimony by plumbers and other experts as to whether or not soldering or sweating of copper pipes through wooden studs by the use of an acetylene torch amounts to "burning or welding adjacent to, near or over combustible materials." Attention is also called to the evidence that there were a number of warming fires in tar-pots in the area of the building, maintained and built by carpenters, roofers, and others working at the job site. In addition, there was conflicting testimony as to where the fire started, in that some witnesses testified it began in the area where the plumbers were working, and others testified that it began away from this area. A witness by the name of John Hawkins, who did the work in the area which allegedly burned, and who was performing the sweating stated that he thoroughly checked the area in which he had been working prior to departing for lunch, and that there were no scorched places or burned spots on the wood adjacent to the area where he
had been sweating joints on the day of the fire; that he checked his work twice before departing the area in which he had been working, found no smoke, no heat, and no danger of fire, and that on returning from lunch, he observed the fire from some distance away and that same was not in the area of his work. The superintendent of framing, who might be said to be the "job superintendent" testified that soldering or sweating is not welding or burning, even though heat is required; that there were warming fires on the premises maintained by various people such as block masons, brickmasons and framing carpenters, and that in his 30 years experience in the construction business he had never known of a fire occurring in a building under construction as a result of sweating joints or plumbing; that he was familiar with the paragraph of the contract referring to subcontractors in regard to "burning or welding," and as an employee of plaintiffs, he did not consider that defendants were under any duty to satisfy the requirements of that particular item, such as the maintenance of "fire extinguishers, asbestos cloth, stand-by watch or other measures as will insure a fire-free job." At least six other witnesses, who were plumbers, testified that sweating or soldering joints was not welding or burning metals, and that there is nothing that plumbers do in the nature of welding or burning, which is carried on by members of a different trade.
Plaintiffs' motion for rehearing recites: "This court overlooked the fact that the plaintiffs moved for a directed verdict as to breach of damages only thereby leaving to the jury the question of causation in damages. " (Emphasis supplied).
This misrepresents the record, which at p. 529 shows as follows: "Mr. DeRieux: Your Honor, we wish to move for a directed verdict on Count 2 of plaintiffs' petition as to liability with the question of damage left to the jury to be assigned." (Emphasis supplied).
Custer, Brennan & Smith, Lawrence B. Custer, Swift, Currie, McGhee & Hiers, W. Wray Echl, for appellees.
Greene, Buckley, DeRieux & Jones, Burt DeRieux, William M. Rich, James A. Eichelberger, for appellants.
Friday May 22 15:58 EDT

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