# Appendix — Fortenberry v. New York Life Insurance > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1270%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1972 - **Citation:** 409 U.S. 981 ## Text + - IN THE WICHAEL ROO AL 1873 SUPREME COURT OF THE UNITED STATES October Term, 1972 NO. 72-277 HENRY C. FORTENBERRY, father of GARY C. FORTENBERRY, deceased, Petitioner, NEW YORK LIFE INSURANCE COMPANY, Respondent . APPENDIX TO PETITION FOR REHEARING PETER L. NILES, 1209 South Peninsula Drive, Daytona Beach, Florida 32018, Attorney for Petitioner. LAW PRINTERS. P. ©. Box 277. Knoxville, Tennessee, Phone 525-4202 _ — [466 F.2d 179 (1972)] FIREMAN'S FUND INSURANCE COMPANY, a Corporation, et al., Appellants, Vv. AALCO WRECKING COMPANY, INC. ; a Corporation, Appellee. No. 20552. United States Court of Appeals, Eighth Circuit. Submitted Oct. 18, 1971. Decided Aug. 7, 1972. Rehearing and Rehearing En Banc Denied Sept. 26, 1972. Dissenting Opinion from Denial of Rehearing En Banc Oct. 16, 1972. Dale [. Larson, Adolph K. Schwartz, Hullverson, Richardson & Hullverson, St. Louis, and Robins, Davis & Lyons, Minneapolis, Minn., for appellants. Edward D. Weakley, Boyle, Priest, Elliott & Weakley, Howard Elliott, St. Louis, Mo., for appellee. Before LAY, HEANEY and STEPHENSON, Circuit Judges. A. 1 466 F.2d 179 (1972) LAY, Circuit Judge. Plaintiff insurance companies initiated this subrogation action to recover the damages to their assureds arising from a fire loss at the Shapleigh Warehouse Complex in St. Louis, Missouri, on August 4, 1965. Plaintiffs re- ceived a jury verdict against the defendant, Aalco Wrecking Company, Inc., who was engaged in demolition work at the complex; however, on post trial motions the district court granted defendant's motion for judgment n.o.v. and alternatively under Federal Rule of Civil Procedure 50(c) defendant's motion for new trial. Plaintiffs now appeal this judgment. We reverse with direction to enter judg- ment for the plaintiffs in accordance with the original verdict . In August 1965 the defendant Aalco conducted demolition work on a group of buildings in downtown St. Louis. In the early morning hours of August 4, 1965, a blaze was discovered in the buildings. At the time of discovery the fire had reached three to five alarm proportions. Soon after the fire department arrived the fire spread out of control damaging the assureds’ personal property which was stored in an adjacent building. The cause of the fire was unknown. Plaintiffs claim that the delay in the detec - tion of the fire caused the extensive destruction and resulted from defendant's failure to have a watchman on the premises. Plaintiffs assert that the defendant did not and could not secure the demolition site from intruders and did not maintain a watchman at the site to protect the buildings and notify the fire department of any fires. The trial court submitted the case to the jury under the following instructions: =~ A.3 466 F.2d 179 (1972) “Your verdict must be for the plaintiffs if you believe: First, a fire started in the area being demolished by the defendant and spread to adjacent property, including that occupied by the insured tenants mentioned in evidence, and Second, the buildings being demolished by defendant were not secured against transients or vandals and it was not reasonably possible to do so, and defendant provided no watchman while the demolition was not in progress, and Third, defendant's failure to employ a watchman was negligence, and Fourth, as a direct result of such negligence there was a delay in discovering and reporting the fire to the fire department, and Fifth, as a direct result of such delay the fire spread to property occupied by the tenants and caused damages to them and losses to the plaintiffs ." {1] We find substantial evidence to sustain the jury's finding of negligence and proximate cause arising from defendant's failure to employ a watchman. Although there was conflicting testimony, substantial evidence was presented to establish that at the time the fire was originally discovered it was burning in the area demolished by the defendant, and from there it spread to the adjacent property. Considerable evidence was offered to prove that de- fendant did not and could not secure the buildings being razed and that defendant had not employed a watchman. The Building Code of the City of St. Louis §2116.2(9) provides: i A.4 466 F.2d 179 (1972) “All buildings to be razed three stories in height or greater shall be kept secure against entry of transients or vandals. If security is not possible, watchman shall be provided during the hours wrecking is not being accomplished." Defendant's witnesses agreed that if the buildings could be secured, there was no need for a watchman on the dem- olition site. Implicit in this testimony was the premise that if the buildings were not secure, it was customary within the construction trade in St. Louis to provide a watchman. Thus, one of the focal issues turned on the factual question whether the buildings could be made secure. On the basis of the record presented this court cannot say substantial evidence did not exist to support the jury's finding as to the lack of security in the building complex. Captain Klein of the St. Louis fire department visited the demolition site on August 3, 1965, the evening before the fire. His testimony reads: “A. No, I don't recall a single instance where we had to force a door or anything else. Most of the times the doors were hanging open, and we just walked right through. "Q. Did you normally walk through the buildings? “A. Right. "Q. On the evening of August 3, 1965, did you have occasion to observe whether the fire doors, many of waich-are exposed and showing as little brown card- board spots on this model, were open or closed? “A. I'd say for the most part they were either open or gone entirely. : "Q. All right, sir. Now, in prior visits when you went into the building, Captain, or the buildings, did NEARS G! ee - : ~ ag --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1270%3A4. Public record. Not legal advice.