Rehearing Denied July 7, 1959.
[86 Ariz. 60] Lewis, Roca, Scoville & Beauchamp, John P. Frank, Phoenix, and Richard Duffield, Tucson, for appellant.
Udall & Udall, and Charles E. Ares, Tucson, for appellees.
PHELPS, Chief Justice.
This is an appeal from the orders and judgments of the superior court entered herein against plaintiff and in favor of defendants on December 28, 1956, and from its judgment entered herein against plaintiff, and in favor of Bruce Dusenberry on January 16, 1957.
This litigation arose out of a transaction wherein Madeleine Anderson (hereinafter called plaintiff) entered into a written contract with the City Van & Storage Company, Inc., at Tucson, Arizona, (hereinafter called defendant) for the storage of certain household goods on a monthly rental
basis. These goods consisted of furniture, some of which was antique, carpeting, draperies, chinaware, sterling silver, clothing and other personal effects, all of which she testified would cost $18,000 to replace.
The contract contained a clause limiting liability of defendant to thirty cents per pound if it should be destroyed by fire or otherwise lost (except by accident). Plaintiff claims she did not read the contract which, of course, is no defense to an action on contract. She testified that defendant represented to her on different occasions that his building was fireproof, which induced her to enter into the contract with him, and that he stated insurance was unnecessary, and as a result of said representation she was not concerned about fire damage. Although she states after she was back in New York she received a contract from defendant for her signature, in which her name had been changed from that of her husband (from whom she had just been divorced), to that of Madeleine Anderson. She thinks she signed the original contract and returned it to defendants although she is not sure she did. She testified that in this contract there was a place provided for her to indicate if she desired insurance coverage on any part of the goods she had stored with defendant, and that she indicated therein that she desired coverage of $2,000 on the three barrels which she testified contained china and silverware and other personal effects. She further testified, however, that because of the representations of Bruce Dusenberry that the storage building was fireproof she was not concerned with fire coverage but the reason she signed that contract was that she wanted[86 Ariz. 61] this insurance for all-purpose breakage or theft insurance.
Regardless of whether Bruce Dusenberry, president and manager of defendant corporation, made any representations to plaintiff concerning the fireproof character of the warehouse, which she claims induced her to store her household goods and furnishing with defendant, and regardless of her allegation that she notified defendant after the fire occurred of her cancellation of such contract, these allegations appear to be merely incidental to laying a predicate for an action based upon negligence. There can be no doubt that the case was tried upon the theory of negligence.
Plaintiff first assigns as error the refusal of the trial court to direct a verdict for her and against defendant and to enter a judgment in her favor, notwithstanding the verdict. On the question of a directed verdict the limit of the court's authority in this case would be to direct the jury that the defendant was guilty of negligence as a matter of law and submit to it only the question of the amount of the damages to be awarded.
Viewing the first assignment in this light it will be necessary to examine the evidence bearing upon the question of negligence, and in doing so we must view it in the light most favorable to sustaining the verdict of the jury which, in this case, consisted of answers to interrogatories. So far as we were able to determine from a careful reading of all of the evidence there are no material conflicts in it relating to the question of negligence.
The evidence discloses without contradiction that the defendant's building was not fireproof. It further discloses that it was not a class I fire resistance structure. In fact, the undisputed testimony of the witness Herreras, architect and structural engineer, is to the effect that it does not meet all of the specifications of a class III building of this type. There were no partitions in the attic separating each 2,500 square feet of space. He stated a class III type business or any type used as a commercial or industrial building requires the attic spacing of each 2,500 square feet with partitions of one-half hour fire resistance. Neither was the ceiling nor any of the partitions inside the building made of material with a one hour fire resistance required in a class III type building. The glass blocks in the walls of the building he stated had a maximum fire resistance of only fifteen minutes, depending on the intensity of the
fire. He stated that the partitions in the building consisted of flexboard on one side of two by four studs. The flexboard itself would have a fire resistance of twelve to fifteen minutes.
The evidence of Mr. Herreras is further to the effect that the incinerator was homemade and did not conform with standard requirements adopted by the Board of Fire [86 Ariz. 62] Underwriters, and 'the Uniform Building Code which is published by the Pacific Building on official conference and the trade catalogue known to the profession as Sweet's Catalogue, which is made of manufacturers' catalogues and specifications.' He testified that these publications are generally accepted in this country as being the right way to build incinerators.
He pointed out many departures from standard construction, chief among which were that the doors were too large and did not provide for any control of the doors being kept closed. It was not built to provide for any adjustment of air for combustion. There was no screen or spark arrester, nor were there any baffles or chambers to take care of sparks or any particles as generally used in commercial incinerators. He testified that there had been a wire mesh screen originally inserted in the brick joints four to six inches from the top of the flue, which was just an ordinary piece of screen wire that had burned out and had been replaced by a heavy screen mesh 1/8 to 3/16 inches in width and 5/8 to 3/4 inches in length, laid on top of the remaining burned ...