Hagan & Cushing Co. v. Washington Water Power Co.

• Decision Date: 04 November 1938
• Docket Number: No. 8737.,8737.
• Parties: HAGAN & CUSHING CO. v. WASHINGTON WATER POWER CO.
• Court: U.S. Court of Appeals — Ninth Circuit

99 F.2d 614 (1938)

HAGAN & CUSHING CO. v. WASHINGTON WATER POWER CO.^*

No. 8737.

Circuit Court of Appeals, Ninth Circuit.

November 4, 1938.

Maurice H. Greene, of Boise, Idaho, and J. H. Felton, of Moscow, Idaho, for appellant.

John P. Gray and W. F. McNaughton (of Gray & McNaughton), both of Coeur d'Alene, Idaho, and A. E. Russell and Alan G. Paine, both of Spokane, Wash., for appellee.

Before GARRECHT and HANEY, Circuit Judges, and ST. SURE, District Judge.

HANEY, Circuit Judge.

This is an appeal from a judgment in favor of appellee in a suit brought by appellant to recover damages for destruction of its packing plant by fire alleged to have been caused by appellee's negligence.

Appellant is an Idaho corporation, organized in 1909 to carry on a meat slaughtering and packing business at Moscow, Idaho. The cost of its buildings which had been constructed from 1909 to 1936 was $48,727.47, and the cost of machinery and equipment in the plant on December 31, 1935, was $38,015.28.

Appellee is a public utility, engaged in the generating, sale and distribution of electrical current. Appellant was a user of such current for many years prior to 1936, and in addition, had employed appellee to install wiring in the plant, and make repairs in electrical equipment. About 1934, appellee abandoned the sale and installation of electrical equipment in Moscow.

At appellant's plant there was a compressor room, constructed of concrete with a reinforced floor and ceiling. In that room two compressors, or ice machines, were located, which were operated by belts from two motors in the motor room. The motor room had a concrete floor and a wood frame work, covered with galvanized iron. There were three motors in the motor room. There was an opening in the wall between the two rooms, through which ran the belts from the motors to the compressors. The opening was large enough to permit passage of a person. Two of appellee's employees had been in the compressor room, installing a new meter within a month prior to August 22, 1936.

Two of the motors were three phase, ten horse power capacity motors, and were used to operate the compressors. The other motor was a stored motor. About 3:30 p. m. on August 22, 1936, one of appellant's employees examined both of the motors, found them running smoothly, moderately warm as usual, without bearing knocks, and then oiled them. The plant closed that afternoon about the usual time. The motors were left operating the compressors, as usual, after the plant closed.

About 7 p.m. on August 22, 1936, some of the electric lights in Moscow began to flicker and die down, and finally went out. After about twenty or thirty minutes thereafter electric service was restored, and some people saw smoke arising from appellant's plant. The fire was discovered in the motor room. Thereafter, the fire destroyed practically the whole plant.

This action was commenced on September 24, 1936, to recover $136,368.46. The amended complaint alleged that appellee "negligently and carelessly carried over its wires, in the circuit which supplied current to the said packing house, a current of electricity which was unsuited to the operation of the motors therein contained"; that the "improper condition of electrical current herein complained of immediately and proximately caused the two motors * * * to become greatly overheated"; and that such "overheating continued to a point where the motors burst into flames, and the fire was promptly communicated to the building, and resulted in the destruction of it together with its contents". It was also alleged that appellee "was further negligent in this, that having full knowledge of the emergency, it failed to turn off the current, or warn the packing company, or to correct the disturbed condition, until such time as the packing plant was afire and the peril was no longer avoidable".

Appellee's answer denied that it was negligent, and alleged affirmatively that appellant was guilty of contributory negligence "in that it maintained in its plant motors that were old and out of repair, improperly connected, without the proper or any oil necessary to proper operation of the same".

At the conclusion of all the evidence, appellee moved for a non-suit, which was denied, and then moved for a directed verdict, which was granted. Judgment was entered for appellee on May 24, 1937. Appellant then brought this appeal.

Both parties concede that the cause of action pleaded was based on the doctrine of res ipsa loquitur. Appellant here contends that under that doctrine it was entitled to a full and complete explanation as to why its motors should have caught fire, and that there was no such evidence.

The law of Idaho governs here. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487; Ruhlin v. New York Life Insurance Co., 304 U.S. 202, 58 S.Ct. 860, 82 L.Ed. 1290; Rosenthal v. New York Life Insurance Co., 304 U.S. 263, 58 S.Ct. 874, 82 L.Ed. 1330; New York Life Insurance Co. v. Jackson, 304 U.S. 261, 58 S.Ct. 871, 82 L.Ed. 1329; Hudson v. Moonier, 304 U.S. 397, 58 S.Ct. 954, 82 L.Ed. 1422. In Idaho the doctrine of res ipsa loquitur means that "the circumstances attendant upon an accident are of themselves of such character as to justify a jury in inferring negligence as the cause of the accident". Wilson v. St. Joe Boom Co., 34 Idaho 253, 200 P. 884, 888. See, also, Warner v. Pittsburgh-Idaho Co., 38 Idaho 254, 220 P. 492, 494; Martin v. Brown, 56 Idaho 379, 54 P.2d 1157, 1158. Under that rule, while the jury may draw the inference of negligence, it is not compelled to do so, and if the doctrine of res ipsa loquitur is applicable at all, the case should have been submitted to the jury.

In Brunell v. Mountain States Power Co., 9 Cir., 81 F.2d 305, 308, this court held that the res ipsa loquitur doctrine was not applicable where there was intervention of a third party. There appears to be no decision on that point in Idaho, and we therefore believe the rule laid down by this court should be here followed.

There is no conflict in the evidence regarding the fact that the motors were burned because appellee's transmission line thereto delivered electricity to the motors by single phase current, rather than by three phase current, and that the "single phasing" was caused by an automobile which was driven against a pole, some distance away from appellant's plant, which caused one of the three transmission lines to wrap around another. Therefore, under Brunell v. Mountain States Power Co., supra, the doctrine of res ipsa loquitur is not applicable.

The question is raised by appellant as to whether there is any substantial evidence that appellee was negligent in the transmission of power.

Appellee's power source to Moscow consisted of three lines carrying 60,000 volts. That current passed through an air switch, which is manually operated, through expulsion fuses (one on each line) which operate to open the line when, due...