Bohrer v. Clark
| Citation | 35 St.Rep. 1878,590 P.2d 117,180 Mont. 233 |
| Decision Date | 15 January 1979 |
| Docket Number | No. 13880,13880 |
| Parties | Seymour M. BOHRER, Plaintiff and Respondent, v. Steve CLARK et al., Defendants and Appellants. |
| Court | Montana Supreme Court |
Schulz, Davis & Warren, Carl M. Davis (argued), Dillon, for defendants and appellants.
Poore, McKenzie, Roth, Robischon & Robinson, Urban L. Roth (argued), Butte, for plaintiff and respondent.
Plaintiffs sued several defendants for damages based on the latters' negligence in causing a fire which destroyed plaintiffs' home and its contents. The jury returned a verdict for plaintiffs in the sum of $30,500 and judgment was entered thereon. Plaintiffs moved that the judgment be amended to award them the sum of $60,542.64 or in the alternative for a new trial on the issue of damages. The District Court ordered the judgment amended to award the homeowner $50,614.93 damages. One of the defendants appeals for reinstatement of the jury's damage award or for a new trial on all issues. Plaintiffs cross-appeal, seeking a further increase in the damage award to $60,542.64.
In the spring of 1973 plaintiff Seymour Bohrer, a native of New York who had never visited the west before, purchased a tract of land in a recreational subdivision near Ennis, Montana, for the purpose of constructing a vacation home thereon for his family.
After the purchase of the land, plaintiff asked the seller about building a house there. The seller informed him that he had a dealership arrangement with Levitt Construction Systems, Inc., a California based manufacturer of modular homes, and that several such homes were being constructed on other nearby homesites. Plaintiff arranged for his wife to go to California and meet with an interior decorator who the seller had indicated was handling the furnishing and equipping of several of the other homes. Mrs. Bohrer subsequently visited the factory where the homes were manufactured, selected a model she wanted, and together with the interior decorator began ordering the furniture, decorations and other items for the home.
Among the items that plaintiffs wanted included in their home was a fireplace, but Levitt Construction did not have any models including that feature. Levitt Construction therefore, at plaintiffs' request, ordered a free-standing metal fireplace manufactured by the Majestic Company and placed it, still in its shipping carton, inside the modular home to be transported to Montana.
In early August, 1973, Morgan Drive Away Trucking Company delivered the Levitt home to the homesite. Several local firms in Ennis, Montana, were then hired to perform the work necessary to convert the package into a functional vacation home. Defendant Steve Clark a construction contractor, was employed to lay a foundation for the unit, join the two halves of the home together, and otherwise perform the work necessary to "set up" the modular home on the building site. Clark also added an extra room and deck onto the house at plaintiff's request. Another local firm, Shaefer Plumbing & Sheet Metal, Inc., was employed by plaintiff to make repairs to plumbing which had been damaged in transit and to replace the furnace with a larger model.
In mid-August, 1973, Mr. Bohrer visited the homesite to check on the progress of the construction. He noted that the fireplace was unattached and spoke with defendant Clark about installing it. Defendant informed him that a flue, a length of pipe to go through the ceiling, was needed and that someone with sheet metal knowledge and experience would be required to handle the job. After further discussion, plaintiff returned home with the understanding that between defendant Clark and Shaefer Plumbing & Sheet Metal, Inc., the installation of the fireplace would be completed.
The record is unclear whether plaintiff himself requested Shaefer Plumbing to order the flue or whether defendant Clark told Shaefer to order it for plaintiff. In any event, the flue arrived at Shaefer Plumbing in early September. Shortly thereafter Shaefer Plumbing directed its employee, Jonathan Todd, to accompany defendant Clark to the homesite and install the flue. Between the two of them the flue was installed and hooked up to the fireplace. The Majestic Company provides with each of its fireplaces a detailed set of installation instructions requiring that a protective noncombustible floor covering should be placed under the fireplace. Defendant Clark did not see any instructions with the fireplace. The fireplace was installed standing on the bare, unprotected carpet.
On December 24, 1973 plaintiffs arrived to spend Christmas in their new vacation home. Mr. and Mrs. Bohrer planned to spend a week in Montana and then go to California to spend New Year's and the following week. They therefore had brought with them a considerable wardrobe for themselves and their two children.
During the early evening after plaintiffs' arrival it developed that insufficient fuel had been ordered for the propane tanks to the furnace. Plaintiff contacted several neighbors, who in turn contacted the delivery service. Several of the neighbors came over to plaintiffs' home to make sure that the propane delivery was made. After the propane arrived at about 9:30 in the evening, the neighbors stayed to visit, make sure the furnace was operating, and have a few Christmas toasts to welcome plaintiffs to Montana. Plaintiffs do not drink, but did provide Christmas cheer for their guests.
At any rate, sometime prior to the arrival of the fuel truck, a fire was started in the fireplace. It was not a roaring blaze, and shortly before 11:30 p. m. when the guests were leaving, one of the neighbors, Walter Johnson, reached into the fireplace and with his bare hands stacked the remaining embers and cinders toward the back. Plaintiffs retired shortly thereafter. Just before she fell asleep, Mrs. Bohrer thought she smelled smoke. When Mr. Bohrer went to investigate, he found the wall behind the fireplace ablaze. He attempted to beat the flames out with a blanket, but his efforts were fruitless. He evacuated his wife and children and they drove to a neighbor's for assistance. Before any firefighting efforts could be initiated, the modular home and all of its contents were destroyed by the fire.
A complaint was filed in the District Court of the Second Judicial District, Silver Bow County, on January 27, 1975. The complaint named as defendants Steve Clark, d/b/a Steve Clark Construction; Levitt Construction Systems, Inc. (the modular home manufacturer), and the Majestic Company (manufacturer of the fireplace). An amended complaint adding Shaefer Plumbing & Sheet Metal, Inc. as a party defendant was filed on February 27, 1975. A second amended complaint later added Morgan Drive Away as another defendant on the theory that the trucking company's negligence may have caused the loss of the installation instructions. The second amended complaint alleged that the negligence of one or all of the defendants had caused the destruction of plaintiffs' home and its contents.
The action was removed to federal court, subsequently remanded back to state court, and came on for trial by jury on January 24, 1977. By that time, the pleadings had been amended again to add a claim for personal injuries allegedly sustained by the Bohrer family in the fire.
During the presentation of plaintiffs' case, negotiations between plaintiffs and defendants Levitt Construction Inc., the Majestic Company, and Morgan Drive Away, Inc., resulted in an agreement whereby those defendants would pay plaintiffs $8,000 as a settlement, and in return plaintiffs would not resist their motions for dismissal and directed verdict after plaintiffs rested their case. Levitt, Majestic, and Morgan continued to participate in the trial, but pursuant to the agreement plaintiffs presented no evidence of negligence on their part. When plaintiffs rested, the unopposed motions for dismissal of Levitt, Majestic and Morgan were granted. Thereafter, the court advised the jury that three of the defendants were no longer in the case and that they would be further instructed on that matter later in the trial. Defense counsel for the two remaining defendants, appellant Clark and Shaefer Plumbing, requested that the jury specifically be advised that the dismissed parties had settled for $8,000 and that the jury was to deduct that amount from any award they might make to plaintiffs. The trial court judge chose to withhold the details of the settlement from the jury and elected to make the necessary deduction himself after the jury had returned its verdict.
On January 28, 1977 the jury returned a special verdict finding both Clark and Shaefer Plumbing guilty of negligence which caused the fire. The jury awarded no damages for personal injuries, but awarded $30,500 for property damage.
On February 8 plaintiffs moved to alter and amend the judgment or, in the alternative, for a new trial. The motion alleged that the jury verdict was contrary to the undisputed evidence at the trial. Plaintiffs contended that the evidence required an award of $60,542.64 and moved the court either to enter judgment in their favor for that sum or grant them a new trial on the sole issue of damages.
On March 11 the District Court entered an order amending the judgment to award plaintiff $50,614.93 damage. Both sides subsequently appealed; defendant Steve Clark seeks reinstatement of the original judgment or a new trial of the entire action, and plaintiffs seek a judgment increasing the damage award to $60,542.64.
The issues on appeal can be summarized in this manner:
(1) Was the District Court correct in increasing the damage award from $30,500 to $50,614.93?
(2) Can this Court on appeal increase a jury award of damages?
(3) Was the giving and refusal of certain jury instructions reversible error?
(4) Sufficiency of the evidence to...
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