Byars v. Arizona Public Service Co.

• Decision Date: 26 August 1975
• Docket Number: No. 1,CA-CIV,1
• Citation: 24 Ariz.App. 420,539 P.2d 534
• Parties: Virginia N. BYARS, Surviving mother of Lawrence Eugene Daniel, aka Gene Byars, Appellant, v. ARIZONA PUBLIC SERVICE COMPANY and El Paso Natural Gas Co., Appellees. 1958.
• Court: Arizona Court of Appeals

Page 534

539 P.2d 534

24 Ariz.App. 420

Virginia N. BYARS, Surviving mother of Lawrence Eugene Daniel, aka Gene Byars, Appellant, v. ARIZONA PUBLIC SERVICE COMPANY and El Paso Natural Gas Co., Appellees.

No. 1 CA-CIV 1958.

Court of Appeals of Arizona, Division 1, Department C.

Aug. 26, 1975.

Rehearing Denied Oct. 17, 1975.

[24 Ariz.App. 422] Westover, Keddie, Choules, Shadle & Bowen, by Ted B. Bowen, Yuma, for appellant.

Snell & Wilmer by H. William Fox, Kent E. Turley, Phoenix, for appellee Arizona Public Service.

Maupin & Wilson by Harold J. Maupin, William G. Fairbourn, Phoenix, for appellee El Paso Natural Gas Co.

OPINION

WREN, Judge.

This is an appeal from a summary judgment which dismissed plaintiff's action to recover damages for the wrongful death of her son. We find that it was properly granted.

The complaint filed by plaintiff, Virginia N. Byars, alleged that defendants, Arizona Public Service Company (APS) and El Paso Natural Gas Company (El Paso), were negligent in failing to odorize, or to properly odorize, natural gas supplied to the apartment which the decedent, Gene Byars (Byars), was occupying at the time of his death. It further alleged that as a result thereof, Byars was unaware of escaping gas in the apartment, and was fatally injured when he struck a match, causing an explosion.

It is plaintiff's contention that a genuine issue of fact as to defendants' negligence was presented, and hence it was improper for the court to grant the motion for summary judgment against her.

In determining whether this case was a proper one for summary adjudication, we note that neither the trial court nor the appellate court may weight the evidence, and that all matters presented must be considered in their most favorable aspect to the party opposing the motion. Hall v. Motorists Insurance Corp., 109 Ariz. 334, 509 P.2d 604 (1973). It is a well established rule in appellate consideration of summary judgment that it should not be granted when there is an issue of fact, or where there is the slightest doubt as to the facts. Biondo v. General Motors Corp., 5 Ariz.App. 286, 425 P.2d 856 (1967).

The facts essential to our disposition of this appeal are as follows: APS supplied natural gas to the apartment where Byars resided. In turn, the natural gas was supplied to APS by El Paso. The gas distributed was required to be odorized in accordance with standards set by the Arizona Corporation Commission. The purpose of the required odorization was to make it readily detectable if it escaped into the atmosphere.

On April 23, 1969, at approximately 8:45 a.m., Byars responded to a knock on his door from a co-worker of the store where Byars worked, and said that he would go to the store right away. A few minutes later, there was an explosion and a flash fire. Byars was seen diving out the door of his apartment with his hair, arms, and clothing on fire. He was rushed to a hospital with second and third degree burns on his abdomen, chest, neck, face and upper extremities. Approximately two weeks later, he died.

According to the deposition of Robert Bivin (Bivin), chief investigator for the Phoenix Fire Department, the explosion and resultant fire were due to a concentration of natural gas in the apartment, and that the explosion occurred when Byars lit a match.

It is plaintiff's contention that the trial judge disregarded certain evidence from which negligence on the part of the defendants in failing to odorize or to properly odorize their natural gas could be inferred. In support of this assertion, she points to the court's refusal to consider as an 'excited utterance', a statement made by Byars after his admission to the hospital.

The investigation reports of Bivin established that he interviewed Byars in the hospital within an hour after the explosion. According to Bivin, Byars stated that he arose from his bed after 8:30 a.m., dressed himself, sat on the bed, lit a match for a cigarette, and the explosion occurred. Byars further told Bivin that it was natural gas, but that he did not know where it came from.

The rationale for the 'excited utterance' exception to the hearsay rule lies in the special reliability regarded as being furnished by the excitement or external circumstances of physical or mental shock which suspend the declarant's power of reflection and fabrication. Keefe v. State of Arizona, 50 Ariz. 293, 297--298, 72 P.2d 425, 427 (1937); McCormick, Laws of Evidence § 297 at 704 (1972).

For a statement to qualify as an excited utterance, the following requisites must be met:

'1. There must be a startling event.

2. The words spoken must be spoken soon after the event so as not to give the person speaking the words a time to fabricate.

3. The words spoken must relate to the startling event.' State v. McLain, 74 Ariz. 132, 135, 245 P.2d 278, 281 (1952).

Clearly element one has been satisfied here. As to elements two and three, it is universally held that the declarant's statement must be a spontaneous reaction to the occurrence or event, rather than the result of reflective thought. McCormick, Supra, at 704. Where the statement lacks this spontaneity, it becomes merely a narration of past events, and is inadmissible because it is not part of the Res gestae exception to the hearsay rule. Yellow Cab Company of Phoenix v. Green, 16 Ariz.App. 485, 488, 494 P.2d 385, 388 (1972).

In each case the trial judge must consider all the circumstances surrounding the particular exclamation to determine if the speaker was under the stress of nervous excitement or shock produced by the event in issue. State v. Lopez, 107 Ariz. 214, 217, 484 P.2d 1045, 1048 (1971). To frame this distinction in a different vein, the line of demarcation between admissibility and non-admissibility lies between the words Outcry and Narration, between Impulse and Reflection. Yellow Cab, supra.

Applying the foregoing principles to the facts here, we cannot agree that Byars' statement was properly excluded as a narration of past events, too far removed from the explosion to constitute a spontaneous utterance. We find it extremely doubtful that a dying man, lying in a hospital bed, with fifty-four percent second and third degree burns covering the upper part of his body from an explosion occurring only an hour before, would make any attempt at fabrication. His physical condition and the shocking occurrence insured the requisite spontaneity of his statement.

Nor can it make any difference that Byars spoke in response to questions from Bivin. An answer elicited by a question, though normally indicative of reflective thought, is not conclusive of that fact, and is only a factor to be considered in determining the spontaneity of the statement. McCormick, Supra, at 706; See State v. Woolery, 93 Ariz. 76, 378 P.2d 751 (1963); State v. McLain, supra. We find that the statement satisfied elements two and three under the McLain test; that it therefore clearly qualified as an excited utterance, and the trial court therefore abused its discretion in not considering it as such.

We must turn now to the probative value of the statement in raising a justiciable issue of fact. The words used are obviously capable of several inferences, of which not the least logical one would be that Byars recognized the presence of natural gas in his room because he smelled it. However, viewing it in a light most favorable to plaintiff, a reasonable inference would also be that Byars did not notice the odor of gas, particularly so because he lit a match. From this latter inference plaintiff urges that it is further a logical inference that Byars did not smell the gas because it was either not odorized or improperly odorized.

The latter inference must be classified as 'negative' evidence. Unquestionably under certain circumstances negative evidence has probative value, but there are certain prerequisites. The courts of this state have held on numerous occasions that mere testimony by a witness that he did not see or hear an event occur, has, in and of itself no probative force sufficient to prove that the event did not occur. Udall, Law of Evidence § 112 (1960). Such negative evidence can rise to the level of probative value only when coupled with a sufficient predicate, consisting of additional testimony or circumstances to show that the witness' position and attitude of attention were such that he probably would have heard or seen the occurrence of the event had it happened. Miracle Mile Bottling Distributing Co. v. Drake, 12 Ariz.App. 439, 471 P.2d 741 (1970); Doubek v. Greco, 7 Ariz.App. 102, 436 P.2d 494 (1968). We do not find such a predicate here.

In Shell Oil Company v. Collar, 99 Ariz. 154, 407 P.2d 380 (1965), involving negative testimony to establish that butane gas had not been properly odorized, the court reasoned that the predicate had been laid where the declarant testified that she did not have any difficulty with her sense of smell, that before lighting a match she smelled for gas and did not detect any odor, and further, that she did not hear any hissing sounds.

Here, however, there is nothing beyond the mere inference itself, except an affidavit of plaintiff, stating that she believed Byars to be possessed of a normal ability to smell. In our opinion, such evidence, while sufficient to establish an issue as to the condition of Byars' olfactory senses at the time of the explosion, was wholly insufficient to support an inference that the gas did not contain the required odorization. To analogize, a witness' statement that he did not hear a bell ring is, standing alone, not at all inconsistent with the testimony of another witness that it actually did ring. As for striking the match, the fact that a deceased drove in front of and was struck by a train is not evidence that the whistle was not blowing or that the signal lights were not flashing.

Moreover, we know nothing about Byars' activities just prior to the explosion, beyond the fact...