Arledge v. Scherer Freight Lines

• Decision Date: 08 March 1955
• Citation: 68 N.W.2d 821,269 Wis. 142
• Parties: James G. ARLEDGE, d/b/a Arledge Transfer Co., Appellant, v. SCHERER FREIGHT LINES, Inc., Respondent.
• Court: Wisconsin Supreme Court

Page 821

68 N.W.2d 821

269 Wis. 142

James G. ARLEDGE, d/b/a Arledge Transfer Co., Appellant, v. SCHERER FREIGHT LINES, Inc., Respondent.

Supreme Court of Wisconsin.

March 8, 1955.

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 employee, 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 defenant to the portion of the said premises occupied by the plaintiff, was caused by the negligence of the defendant, its agent, 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 and 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 nearby. 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 has been pumped once or twice. A third employee threw a blanket (padding as used in moving vans) over the stove in an affort to 'smother' the fire. One employee, Robert Ward, went to the office to place a telephone call for the fire department. While there, some one 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 12 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 with 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.

Dougherty, Arnold & Phillip, James T. Murray, Milwaukee, for appellant.

Lines, Spooner & Quarles, Milwaukee, James C. Mallien, Milwaukee, of counsel, for respondent.

STEINLE, Justice.

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, § 220(12), page 1038, 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 Mutual Fire Ins. Company 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, 51 S.D. 97, 212 N.W. 503; Smith v. Gilbert Yards, 70 S.D. 246, 16 N.W.2d 912; Grand Rapids & Indiana Ry. Co. v. L. Starks Co., 172 Mich. 270, 137 N.W. 551, Ann.Cas.1914C, 632; Menth v. Breeze Corporation, 4 N.J. 428, 73 A.2d 183, 18 A.L.R.2d 1071; Edmonds v. Heil, 333 Ill.App. 497, 77 N.E.2d 863, 870; Hendricks v. Weaver, Mo.Sup., 183 S.W.2d 74; Kapros v. Pierce Oil Corporation, 324 Mo. 992, 25 S.W.2d 777, 78 A.L.R. 722; Watenpaugh v. L. L. Coryell & Son, 135 Neb. 607, 283 N.W. 204; Texas Hotel Co. of Longview v. Cosby, Tex.Civ.App., 131 S.W.2d 261; Emigh v. Andrews, 164 Kan. 732, 191 P.2d 901.

In the instant matter the gravaman of the complaint consists of alleged...