Summary
In Arledge v. Scherer Freight Lines, 269 Wis. 142, 68 N.W.2d 821 (1955), the parties occupied separate portions of a warehouse.
Summary of this case from Fibber's Paint Body Shop v. ReedOpinion
February 7, 1955 —
March 8, 1955.
APPEAL from a judgment of the circuit court for Milwaukee county: GUSTAVE G. GEHRZ, Circuit judge. Affirmed.
For the appellant there was a brief by Dougherty, Arnold Philipp, and oral argument by James T. Murray, all of Milwaukee.
For the respondent there was a brief by Lines, Spooner Quarles, attorneys, and James C. Mallien of counsel, all of Milwaukee, and oral argument by Mr. Mallien.
This is an action commenced on October 15, 1951, by James G. Arledge, sole trader doing business as Arledge Transfer Company, as plaintiff, against Scherer Freight Lines, Inc., a foreign corporation, as defendant, to recover damages arising from a fire loss sustained by the plaintiff and allegedly caused through negligence of the defendant. Trial of the action was begun before the court and a jury on June 1, 1954. When the plaintiff at the close of its evidence rested its case, the defendant offered no evidence, rested, and moved for a directed verdict dismissing the complaint. The motion was granted. Judgment was entered in favor of the defendant and against the plaintiff dismissing the complaint upon its merits with costs.
In its complaint the plaintiff in part alleged that:
"Par. 11. . . . Upon information and belief, the plaintiff alleges that the said fire was caused by a stove owned by the defendant, and set up in that part of said premises occupied by the defendant, which said stove was under the exclusive management and control of the defendant, its agents, servants, and employees at the time of the said fire, and for a long time prior thereto.
"Par. 12. Upon information and belief, the plaintiff alleges that the said fire was caused by the negligence of the defendant in the following respects:
"(a) The stove was in a defective condition at the time of said fire;
"(b) The stove was defectively installed;
"(c) The stove was installed and operated in violation of the ordinances of the city of Milwaukee, Milwaukee county, Wisconsin, and the rules and regulations of the fire department of the city of Milwaukee;
"(d) The defendant failed properly to inspect the said stove;
"(e) The defendant failed properly to maintain the said stove.
"Par. 13. Upon information and belief, the plaintiff alleges that the spreading of the said fire from the portion of the said premises occupied by the defendant to the portion of the said premises occupied by the plaintiff was caused by the negligence of the defendant, its agents, servants, and employees, in failing promptly to notify the fire department of the city of Milwaukee, of said fire; at the time said fire was discovered it was confined wholly to one room occupied by the defendant, which said room was some distance from that portion of the premises occupied by the plaintiff; had the fire department been notified promptly, the said fire could have been confined to that part of the said premises occupied by the defendant; the spread of the said fire from the portion of the said premises occupied by the defendant to the portion of the said premises occupied by the plaintiff, was caused by the negligence of the defendant, its agents, servants, and employees, in failing to notify the fire department of the city of Milwaukee of the said fire in time to permit the said fire department to put out the said fire before it reached that portion of the premises occupied by the plaintiff."
It is undisputed that the plaintiff, James G. Arledge operating as Arledge Transfer Company, is engaged in an interstate trucking business. The defendant, Scherer Freight Lines, Inc., is licensed to transact a trucking business in the state of Wisconsin and is engaged in such enterprise. On February 14, 1950, the parties were lessees and in possession of separate portions of a warehouse located at 518 Clybourn street in the city of Milwaukee and owned by Chicago, North Shore Milwaukee Railway Company. Other concerns also leased space upon the premises.
The plaintiff's evidence indicates that the building was 250 feet in length and extends in a north-south direction. There were truck-loading docks on the east side of the warehouse with 29 loading doors. There were no loading doors on the north or south ends of the building, although there were such doors on the west side. The east side was used for truck loading, the west side for train loading. Chicken-wire partitioning divided the space of the various lessees. Defendant's space was in the extreme north end of the warehouse. Adjoining it to the south, was the space of Allied Trucking. Immediately south thereof were the facilities used by the plaintiff.
In the northernmost part of the quarters occupied by the defendant were two small rooms, one occupied as an office and the other as a "warm" room. A wall with a glass window separated these rooms. In each room there were doors leading to the warehouse and to the outside of the building. The defendant maintained an oil stove (victrola type) in each of said rooms. The stove in the "warm" room was about 4 1/2 feet in height. It was customary to dismantle the stoves in the summertime. During the autumn preceding the fire, the stove in question had been assembled and examined.
Defendant's employee, Clarence A. Best, tended the stoves. On the morning of February 14, 1950, he filled the stove in the "warm" room. Approximately an hour thereafter fire was discovered in the "warm" room, — "right under the stove" according to one witness, and "at the bottom of the stove" as described by another. The stove rested on a metal sheet. There was no combustible material on the floor near by. Four of defendant's employees hastened from the warehouse into the "warm" room. Two of these used extinguishers in an attempt to put out the fire. One of the extinguishers became broken after it had been pumped once or twice. A third employee threw a blanket (padding as used in moving vans) over the stove in an effort to "smother" the fire. One employee, Robert Ward, went to the office to place a telephone call for the fire department. While there, someone from the "warm" room yelled that they had the fire out. The phone call was not placed. Ward returned to the "warm" room and assisted in an effort to extinguish the fire. The blanket did not smother the blaze. Ward returned to the office and by telephone summoned the fire department. At that time the fire was still confined to the "warm" room. Plaintiff's evidence (testimony of Clarence Best) indicated that it was a half an hour from the time the fire started until the fire department's apparatus arrived. The fire spread to the office and the warehouse, and upon the arrival of the fire department, had extended about halfway in the building. The fire department's station from which equipment first responded, was about 200 feet from the situs of the fire. It took the department about twelve seconds to get out of quarters after the alarm sounded. Conrad Bach, battalion chief of the Milwaukee fire department, testified as follows:
"Q. [Plaintiff's attorney] Is it part of your duties after a fire has been extinguished to make an investigation as to the cause of the fire? A. It is.
"Q. Did you make an investigation as to the cause of this fire? A. I did, as best as I could.
"Q. Did you make a determination as to what caused the fire in question? A. I did.
"Q. What was that determination? A. I got it marked down here — `Cause: — Defective oil stove on first floor set fire to building and contents. Loading doors running from 1 to 29.'"
Goods, wares, and merchandise of which plaintiff was bailee, as well as office furniture and equipment owned by the plaintiff, were damaged or destroyed as a result of the fire. This action was instituted to recover the value of such damage.
Two questions are raised by appellant. They are:
1. Did not the plaintiff establish a cause of action under the doctrine of res ipsa loquitur?
2. Did not plaintiff's evidence establish that the defendant was negligent in handling the fire and in reporting it to the fire department?
"Although, as a general rule, the mere occurrence of a fire with resultant injuries does not raise a presumption of negligence either in the kindling or the management of the fire, and the doctrine of res ipsa loquitur is ordinarily held inapplicable at least in other than exceptional instances, the doctrine [of res ipsa loquitur] has been held to apply where the circumstances under which the fire originated and spread are such as to show that defendant or his servants were negligent in connection therewith." 65 C.J.S., Negligence, p. 1038, sec. 220 (12); 22 Am. Jur., Fires, p. 644, sec. 78.
The following decisions support the proposition that the mere occurrence of a fire with resultant injuries does not permit a presumption or inference of negligence: Implement Dealers Mut. Fire Ins. Co. v. Golden (1950), 257 Wis. 532, 44 N.W.2d 264; Dodge v. McFall (1951), 242 Iowa, 12, 45 N.W.2d 501; Lezotte v. Lindquist (1927), 51 S.D. 97, 212 N.W. 503; Smith v. Gilbert Yards (1944), 70 S.D. 246, 16 N.W.2d 912; Grand Rapids Indiana R. Co. v. L. Starks Co. (1912), 172 Mich. 270, 137 N.W. 551, 33 Ann. Cas. 632; Menth v. Breeze Corp. (1950), 4 N.J. 428, 73 A.2d 183; Edmonds v. Heil (1948), 333 111. App. 497, 77 N.E.2d 863; Hendricks v. Weaver (Mo. 1944), 183 S.W.2d 74; Kapros v. Pierce Oil Corp. (1930), 324 Mo. 992, 25 S.W.2d 777, 78 A.L.R. 722; Watenpaugh v. L. L. Coryell Son (1939), 135 Neb. 607, 283 N.W. 204; Texas Hotel Co. of Longview v. Cosby (Tex. Civ. App. 1939), 131 S.W.2d 261; Emigh v. Andrews (1948), 164 Kan. 732, 191 P.2d 901.
In the instant matter the gravamen of the complaint consists of alleged negligence of the defendant with respect to one or more of several specifications, viz.: That the stove was in a defective condition; that it was defectively installed; that it was not properly inspected and maintained; that the fire was permitted to spread through fault of defendant's employees.
An analysis of the evidence adduced by the plaintiff indicates that negligence was not established in relation to any of the particulars charged. Plaintiff contends, however, that the facts in this case are within the exception to the general rule, and that the application of the res ipsa loquitur doctrine was warranted here. That doctrine has been expressed as follows:
"`. . . where the thing is shown to be under the management of the defendant or his servants, and the accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.'" Ryan v. Zweck-Wollenberg Co. (1954), 266 Wis. 630, 638, 64 N.W.2d 226.
The conditions that must generally concur in order that the doctrine of res ipsa loquitur may be properly invoked are:
"`. . . (1) The accident must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.'" Ryan v. Zweck-Wollenberg Co., supra (p. 639).
True, in the present situation the room where the fire started, and the stove under or upon which the fire was first observed, were managed by the defendant or its servants. However, mere control over the premises and the stove, standing alone, is not sufficient basis for the application of the res ipsa loquitur rule. As stated in Implement Dealers Mut. Fire Ins. Co. v. Golden, supra (p. 535), "If [defendants had been in exclusive control of the building], it is difficult to understand how that fact alone could make applicable the doctrine of res ipsa loquitur. It is frequent that the origin of fires cannot be determined."
Upon a motion for directed verdict the evidence is considered most favorably to the plaintiff and must be interpreted most strongly against the defendant. The court takes the plaintiff's evidence as true and gives him the benefit of every inference, presumption, or intendment on the evidence. The court is obliged to search the record for evidence to support the denial of the direction of the verdict.
Careful analysis and consideration of the plaintiff's evidence here does not reveal with any degree of certainty the origin of the fire. It may have started in, upon, under, or near the stove with or without negligence on the part of anyone. From the circumstances reflected in plaintiff's evidence it cannot be held that the fire could not or would not have occurred except for negligence. Fires frequently occur without negligence. Nor can it be held that the physical facts surrounding the fire in question created a reasonable probability that it resulted from negligence. Under a most favorable construction of the evidence presented on behalf of the plaintiff, we are not able to determine that the fire in question was of a kind which ordinarily would not or could not have occurred in the absence of negligence.
The fire department official ascribed "Defective Stove" as the cause of the fire. If the fire originated from a defect in the structure of the stove, the inquiry is: Was it a patent or a latent defect? Was it known, or in the exercise of ordinary care could or should it have been discovered by the defendant? The evidence throws no light upon these questions. Any answers thereto would clearly be predicated upon speculation and conjecture alone.
It is our opinion that the doctrine of res ipsa loquitur was not applicable to the facts herein.
The second question presented upon this appeal relates to a consideration of the spread of the fire to that portion of the warehouse occupied by the plaintiff.
The owner or occupant of a premises on which an accidental fire starts, through his act, is liable for damages resulting from his failure to use reasonable diligence to prevent it from spreading to other property after he is aware of the existence of the fire on his premises, even though the act which causes the start of the fire is not a negligent one, and his premises are in good condition. 22 Am. Jur., Fires, p. 603, sec. 13; Anno. 42 A.L.R. 821.
Plaintiff contends that the evidence presented on his behalf raises issues of fact for the jury as to whether the defendant's employees were negligent in (1) the matter of extinguishers used; (2) their attempt to smother the fire by use of a blanket; (3) the delay in calling the fire department. It appears from plaintiff's evidence that two of the defendant's employees used "hand pump" extinguishers in an attempt to put out the fire. One of the extinguishers became broken and failed of use after it was pumped once or twice. There is no evidence indicating obligation on the part of the defendant to have had adequate extinguishers available, — in fact there is no proof of requirement of use of any extinguishers. The employees were confronted with an emergency situation. It is apparent from the evidence that upon discovery of the fire they believed that they could extinguish it with the means they used. After the extinguishers had been used, it appeared to some present that the fire was out. We fail to perceive any negligence on the part of defendant's employees with reference to the use of the extinguishers.
There is nothing of record to indicate that the use of the blanket or padding in the attempt to cause the fire to die down, constituted negligence. Suppression of fire by a covering is a matter of common knowledge. The testimony indicates that smoke permeated the "warm" room after the blanket had been thrown upon the fire for the purpose of smothering it. The smoke extended into the warehouse section itself. It appears that during the period when the extinguishers were being used, one of the employees went to the telephone to summon the fire department. However, he did not complete the call for the reason that he heard someone yell that the fire was out. After the blanket had been placed upon the fire, and the smoke arose in profusion, the call for the fire department was placed. At that time flames had as yet not extended into the warehouse. The evidence indicates that because of the efforts of the defendant's employees, the fire was under control until at least shortly before the time when the blanket was placed upon it, and until it had begun to blaze anew. It was then that the fire department was summoned.
Evidence of events subsequent thereto, — before and after the arrival of the fire department's equipment, — is not relevant to the issue as to whether there was undue delay in summoning the aid of the fire department. We are unable to find evidence of negligence in the record with respect to delay in calling the fire department. No jury question with reference to this item is presented by the evidence.
We agree with the learned trial court in its decision on motion for directed verdict that "there is a fatal absence of evidence upon which a jury could possibly support findings of actionable negligence, and causation based upon any such." Had a jury verdict been rendered in favor of the plaintiff upon the evidence here as to any particular of negligence claimed, it would clearly have been based upon speculation and conjecture. A verdict to be warranted must be grounded on a reasonable certainty as to probabilities arising from a fair consideration of the evidence, not on conjecture, guessing, or possibilities. Central Wisconsin Trust Co. v. Chicago N.W. R. Co. (1939), 232 Wis. 536, 287 N.W. 699.
By the Court. — Judgment affirmed.