New Zealand Insurance v. Brown

FOX, J.

Plaintiffs seek to recover from decedent’s estate, on the theory of subrogation, the money paid the owner to cover the damages to an apartment caused by fire. From a judgment of nonsuit plaintiffs appeal.

The fire occurred about 2 a. m., in a bedroom on the first floor. The apartment was locked, making it necessary for the firemen to force the doors to gain entrance. The only occupant was the decedent, Mary Williams Rosoff, who was 34 years of age and who later passed away from causes unrelated to this fire. The firemen found her on the floor, face down and unconscious, in a hall about 3 feet from the closed but unlocked door to the bedroom where the fire originated; she was barefooted but had on a nightgown or slip; she was burned on both hips and on both buttocks. In response to a question at the police station as to how she got burned she replied, “By the fire.” The door from the hall to the bedroom consisted of three panels, the upper one of which was “almost entirely burned away” permitting flames to come out through that opening. There was no flame in the hallway except that coming through this upper panel of the door.

There were two windows in the bedroom. A bed had been placed diagonally between them. “The bed was almost completely destroyed, only a small portion of the four corner posts and head and tail were left. The fire had burned through the floor and burning material had fallen under the house.” The other furniture was “badly charred and blistered from heat. ’ ’

[413]

An examination of the premises disclosed that the insulation of the electrical wiring had been burned externally due to the heat of the fire causing a short circuit which blew two fuses. Neither an electric blanket nor a heating pad was found in the bedroom. In the apartment there were numerous ash trays containing cigarette butts but none were found in the bedroom. Two empty liquor bottles and one full bottle were in the apartment. There is testimony that Mrs. Rosoff was inebriated upon her arrival at the receiving hospital.

In passing on a motion for nonsuit the court must accept and treat as true every piece of evidence which tends to establish plaintiff’s ease and disregard all contrary evidence. Also, every reasonable inference must be indulged in plaintiff’s favor, and if two reasonable inferences may be drawn from the evidence, one of which is favorable to the case of the plaintiff and the other unfavorable, the inference which is favorable must be accepted and the inference which is unfavorable rejected.