Bismarck Baptist Church v. Wiedemann Industries, Inc.

• Decision Date: 30 August 1972
• Docket Number: No. 8723,8723
• Citation: 201 N.W.2d 434
• Parties: BISMARCK BAPTIST CHURCH and Church Mutual Insurance Company, Plaintiffs and Appellants, v. WIEDEMANN INDUSTRIES, INC., et al., Defendants and Respondents. Civ.
• Court: North Dakota Supreme Court

Page 434

201 N.W.2d 434

BISMARCK BAPTIST CHURCH and Church Mutual Insurance Company Plaintiffs and Appellants, v. WIEDEMANN INDUSTRIES, INC., et al., Defendants and Respondents.

Civ. No. 8723.

Supreme Court of North Dakota.

Aug. 30, 1972.

Rehearing Denied Nov. 1, 1972.

Syllabus by the Court

1. Where the appellant served and filed notice of appeal and undertaking prior to the effective date of the repeal of the de novo statute, demand for trial de novo was timely made.

2. In a negligence action, the plaintiff has the burden of proving by a preponderance of the evidence that the defendant was responsible for some act or omission and that such negligent act or omission was the proximate cause of the plaintiff's injuries and damages.

3. Proximate cause may be proved by circumstances, if such circumstances will permit a reasonable inference of a cause of injury for which the defendant is responsible and at the same time exclude equally reasonable inferences of other causes for which the defendant is not responsible.

4. If from the plaintiff's evidence it is as probable that the injury and damage of which the plaintiff complains resulted from a cause for which the defendant is not responsible as it is that such injury and damage resulted from a cause for which the defendant would be responsible, a primafacie case of proximate cause has not been made and the plaintiff cannot recover.

5. Where the plaintiff adduces evidence of experts who testify that in their opinion the cause of a fire was the malfunctioning of an electric switch, and where it is shown that after the fire in which such switch was badly burned it nevertheless functioned properly, and where the trial court from such evidence found that the cause of the blaze had not been established by the plaintiff, such finding of the trial court will not be set aside by this court on appeal.

6. Where, after the close of all the evidence, the plaintiff moves for permission to amend its complaint under Rule 15(b), North Dakota Rules of Civil Procedure, which rule provides that when issues not raised by the pleadings are tried by express or implied consent of the parties they shall be treated as if they had been raised in the pleadings, and where it appears that if such motion to amend is granted further evidence will be required to support such new issues raised by the amended pleadings, the trial court's denial of permission to so amend will not be reversed on appeal.

7. For reasons stated in the opinion, judgment dismissing the complaint of the plaintiff as to all of the defendant and the order denying the plaintiff's motion for permission to amend the complaint under Rule 15(b) are affirmed.

Thompson, Lundberg & Nodland, Bismarck, for plaintiff and appellant Bismarck Baptist Church.

Frederick E. Saefke, Jr., Bismarck, for plaintiff and appellant Church Mutual Insurance Co. Pearce, Engebretson, Anderson, Schmidt & Thames, Bismarck, for defendant and respondent Wiedemann Industries, Inc.

Zuger, Bucklin, Kelsch & Zuger, Bismarck, for defendant and respondent Honeywell, Inc.

Conmy, Conmy, Rosenberg & Lucas, Bismarck, for defendants and appellants Froeschle Sons, Inc., and Hulm Electric, Inc.

Fleck, Mather, Strutz & Mayer, Bismarck, for defendant and respondent Froeschle Sons, Inc.

STRUTZ, Chief Justice, on reassignment.

This action was brought by the plaintiff to recover damages to its new church caused by a fire which damaged the baptistry and an area surrounding it. Whenever the word 'plaintiff' is used in this opinion, it refers to the plaintiff church, and not to the insurance company which later was joined as a plaintiff by motion.

At the time of the fire, which occurred in the early morning of January 17, 1967, the building had not been officially delivered to or accepted by the plaintiff. A small amount of work remained to be done, including some minor finishing on kitchen cabinets and laying of carpeting on the stairs leading to the balcony. The building itself had been occupied and used for all church services since the middle of the previous October. Dedication services had been held November 4 to 6, 1966, more than two months before the fire. Construction of the church, to all intents and purposes, had been completed and the building had been in constant use for three months prior to the fire.

The record discloses that the baptistry, which the building committee of the plaintiff had selected, was one manufactured and sold by the defendant Wiedemann Industries, Inc. Because of its size, this unit of equipment had been delivered to the building site during the summer of 1966. It is not disputed that the unit was in an unprotected location where anyone could have had access to it during the period of construction. After its delivery, it was placed in the building by constructing the edifice around it. In other words, the baptistry was wholly unprotected during the early stages of the building process, until the church had reached a stage in construction where it was inclosed and could be locked, but up to that time it was accessible to anyone who, rightfully or wrongfully, was upon the building site. This baptistry unit had been accepted as complete by the architect prior to the fire, although the building itself had not been fully approved in writing by either the plaintiff or the architect, as required by the building contract.

After the plaintiff took over the church in October of 1966 for the purpose of conducting its services, all of its functions were conducted in the new building. All that remained to be done insofar as the baptistry was concerned was that it had to be filled with water.

In December of 1966, the members of the plaintiff's official board desired to test the operation of the baptistry, and put water into it. There is some question as to whether a sufficient amount of water was run into the unit at that time to activate the heating element. The evidence shows only that the heating unit failed to function and that the water failed to get warm. There is no evidence that there was any leak in the reservoir of the baptistry itself.

When the water failed to warm, the contractor was called and the electrician and the architect also were contacted. Investigation disclosed that the electic power was not going beyond the diaphragm. In order to determine how best to remedy the situation, the defendant Wiedemann Industries was called long distance. Wiedemann Industries thereupon sent a replacement switch from its factory. On receipt of this replacement, the water was drained from the baptistry and the switch was installed by the defendant Hulm Electric, Inc. Then water again was run into the tank. The record discloses that this time sufficient water was run into the baptistry to activate the controls. In any event, the pilot light then came on, indicating that all of the elements were functioning. All this took place at about ten o'clock on the morning of January 16. The water was checked from time to time during that day by the electrician who had installed the replacement switch, and by the time he left the church, at approximately three o'clock in the afternoon, there had been no noticeable change in the temperature of the water. The water still was in the baptistry at the time he departed.

On the evening of January 16, 1967, the young people of the church had a meeting in the new building, but none of them were called as witnesses. Whether any of them had been at the baptistry or in the area where the fire occurred can only be a matter of speculation.

The caretaker who had charge of the building was not called as a witness, but the parties stipulated that if he were to be called he would testify that he had left the church at about ten o'clock in the evening before the fire, and at that time everything appeared to be in proper order; that as he left the church he did not smell smoke, he heard no unusual noise in the area of the baptistry, and he saw no water on the floor or in the hall.

At about three o'clock in the morning, a police officer checking the area smelled smoke and then saw smoke coming from the building. He then turned in an alarm. This same officer had checked the building earlier that night and had found nothing wrong.

When the firemen arrived, they forced their was into the building and found water on the floor of the hall as they entered. The fire was located and was extinguished by the use of water house. Investigation revealed that a copper pipe had broken or had become disconnected at a joint, and it was believed that the water found on the floor of the hall had come from this break in the pipe. The record is silent as to whether there was any water in the baptistry at the time the firemen arrived, or whether the drain in the baptistry was open. No combustile materials were found at the point where the fire was located which might have caused spontaneous combustion.

The State fire marshal, Vance Arneson, and the fire chief of the City of Bismarck, Alvin Ode, each testified that in his opinion the fire had started because of a malfunction of the electric control on the heating unit in the baptistry, which was the low point of the fire. Arneson testified that although the low point of the fire would not absolutely determine the point of origin of the fire, it was his professional opinion that the low point in this instance, being where the electric control of the heating unit was located, was the point of origin of the fire, and that from that point the fire had traveled southeastward and upward.

After the fire, the switches or controls, with the exception of the thermostat, were found to be in working order and still functioning. By a stipulation of the parties, the functioning of these units was demonstrated in court.

After the court had completed the taking of testimony on September 17, 1969, it adjourned. Thereafter, at 10:18 a.m. on November 12, 1969, the court reconvened and announced...