Phoenix Ins. Co. v. Cook

In this case the plaintiff, appellant herein, as subrogee and assignee of its insured, seeks to recover from the defendant the amount which it paid to the insured because of damage by fire to insured property. The basis of the claim is that the fire was caused by the defendant's negligence while he was using a soldering torch in repairing the tin roof of the property.

At the conclusion of the plaintiff's evidence, the court sustained the defendant's motion for an instructed verdict and later entered judgment on the verdict for the defendant.

An examination of the bill of exceptions leaves little, if any, doubt that the fire resulted from the heat of the molten metal, developed in the act of soldering of the tin joints.

The evidence shows also that this tin roof or gutter rested upon wood and that it is a question of fact whether a reasonably prudent person would not foresee the likelihood of the heat igniting the wood. Thus, the evidence raises the question of whether reasonable prudence did not require that precautions should be taken. The record shows that the defendant, through his employees, applied this heat and immediately left, apparently without taking any precautions.

We find that the facts in this case differ in no essential respect from the facts in the case of Reliance Ins. Co. ofPhiladelphia v. Pohlking, 60 Ohio App. 156, 19 N.E.2d 906, and that the reasoning there employed is equally applicable to this case, and requires a reversal of this judgment.

For these reasons, the judgment is reversed, and the cause is remanded for further proceedings according to law.

Judgment reversed.

MATTHEWS, P. J., ROSS and HILDEBRANT, JJ., concur.