Before DUFFY and CASTLE, Circuit Judges, and MERCER, District Judge.
Plaintiff, The Hearst Corporation and the defendant, Aetna Insurance Company, appeal from a judgment entered against them upon the verdict of a jury finding the issues in favor of the defendant, Cuneo Press, Inc. Hereafter, for convenience, the terms appellants, Hearst, Aetna and Cuneo are used to denote the respective parties to this appeal.
This litigation grew out of a fire on September 27, 1957, at Cuneo's printing plant, at Kokomo, Indiana. On that date, and for a number of years prior thereto, Cuneo printed the periodicals, Cosmopolitan and Good Housekeeping, for Hearst, using paper supplied by Hearst. A substantial part of that printing was done at Cuneo's plant in Kokomo, Indiana. At the time when the fire occurred Hearst paper was in storage on Cuneo's Kokomo premises of a value in excess of $820,000. The fire resulted in water damage to a substantial part of the stored paper, which the parties agree had a value of approximately $400,000.
There is no dispute as to the immediate cause of the fire. Three of Cuneo's employees were engaged in the hot-patch repair of leaks in the roofs of several buildings upon Cuneo's premises. They were using steep asphalt in molten form as a patching agent. In the repair work, one employee was stationed on the ground operating a kerosene burner with which the asphalt was heated and melted, while the other two worked on the roofs being repaired. After the asphalt was heated, it was drawn to the roof of the buildings as needed and mopped onto the spots which needed repairing.
At about 3 P.M., on September 25, a heated bucket of asphalt was drawn to the roof of a building which the roof-top employees were then using as their base of operations. Cuneo's foreman in charge of the roof repair operation proceeded to pour the heated asphalt from the hoist bucket into a second and cold bucket. As he poured the hot asphalt into the cold bucket, the asphalt flashed and spontaneously ignited, igniting the foreman's clothing. He dropped the bucket and the flaming asphalt flowed down a valley in the roof upon which the men were standing, igniting fires on the roofs of several buildings on the Cuneo premises. The heat of the fire set off the sprinkler system in warehouses in which Hearst's paper was stored causing extensive damage as hereinabove related.
Hearst filed this suit against Cuneo. In its third amended complaint, Hearst stated claims upon three theories of action for the damage which resulted to the paper. The first count of the complaint alleged eleven specifications of negligent conduct upon Cuneo's part which were alleged to have proximately resulted in the damage to the paper. The second count was based upon the res ipsa loquitur doctrine, upon the theory that the fire would not have occurred had Cuneo exercised ordinary care in its roof-patching operation. The third count prayed damage upon the theory that Cuneo had breached its contract for the bailment of the paper by its negligent failure to return the paper to Hearst, or apply it to Hearst's account, in as good condition as when the same had been delivered to Cuneo.
By its answer Cuneo, for its first defense, denied generally, the material allegations of negligence and breach of contract. Ultimately, the cause was submitted to the jury upon the issues thus raised and upon Cuneo's affirmative defenses of partial payment for the loss and accord and satisfaction. Other pleaded defenses were removed from the case either upon motion to strike or by peremptory instructions against Cuneo.
Shortly prior to the trial, the trial judge, sua sponte, ordered that Aetna be made a party defendant to the suit. Thereafter Aetna answered, admitting all allegations of the third amended complaint, and averring that any judgment recovered by Hearst in the action was subject to a constructive trust in favor of Aetna to the extent of $334,399.00 thereof.
At the close of all the evidence, the court submitted the case to the jury upon the issues as hereinabove schematized. With respect to Aetna's claim of a constructive trust, the court instructed the jury that if it found the issues for Hearst and against Cuneo, it should also render a verdict in favor of Aetna and against Hearst to the extent of $334,399.00. The court further instructed the jury that should they render a verdict in favor of Cuneo and against Hearst, that they also should render a verdict against Aetna in favor of Hearst.
Neither of the parties requested that the jury be required to return a special verdict. Neither submitted to the court, nor requested, special interrogatories to be given to the jury. After deliberation, the jury returned its general verdict for Cuneo. This appeal followed.
Cuneo contends that the judgment must be affirmed upon the principle that a general verdict upon multiple issues must be sustained if one of such multiple issues is amply supported by the evidence. It argues that appellants concede by failing to question the fact that the jury could have found from all the evidence that the fire did not result from actionable negligence and that it must be assumed that the general verdict rests upon that finding even though other issues were erroneously submitted to the jury.
Cuneo's basic contention is supported by Arnstein v. Porter, 2 Cir., 154 F.2d 464, 474; Betts v. Gahagan, 4 Cir., 212 F. 120, and Citizens Sav. Bank of Columbus, Ohio v. Halstead, 42 Ind.App. 79, 84 N.E. 1098, 1099, among other cases, but the contention is not applicable to the case at bar. As we observed in McCarthy v. Pennsylvania R. Co., 7 Cir., 156 F.2d 877, 882, an instruction upon an issue which is not supported by any evidence may require a reversal of a judgment based upon a general verdict if the instruction was inclined to lead the jury to attach to a part of the evidence a significance which such evidence lacked. See, generally, 53 Am.Jur., Trial, §§ 579, 580. A similar situation is presented on this appeal in which appellants principally contend that the court submitted questions of law to the jury for decision. If those contentions be sound, the general verdict may rest upon the jury's decision of a question of law erroneously submitted to it, and a reviewing court could not say that decision of the factual issues, irrespective of the weight of supporting evidence, was not affected by the error of permitting the jury to determine both the issues of fact and issues of law. Cuneo's contention is, therefore, rejected.
Turning then to appellants' contentions, they contend first, that the court erred in submitting to the jury as an issue of fact the question whether the bailment of the paper was gratuitous or for mutual benefit. Appellants took the position that the character of the bailment is fixed by the terms of a written printing contract, and requested the court to instruct the jury, as a matter of law, that the bailment was one for mutual benefit requiring the exercise by Cuneo of ordinary care. That request for an instruction was refused. Instead. the court instructed the jury that it would have to determine from all of the evidence whether the bailment was gratuitous or whether for mutual benefit - that if the jury found that the bailment were gratuitous, Cuneo was required to use ...