Centennial Mills, Inc. v. Benson

• Decision Date: 19 June 1963
• Parties: CENTENNIAL MILLS, INC., Appellant, v. Chester S. BENSON and Dorothy L. Benson, Respondents.
• Court: Oregon Supreme Court

Page 103

383 P.2d 103

234 Or. 512

CENTENNIAL MILLS, INC., Appellant, v. Chester S. BENSON and Dorothy L. Benson, Respondents.

Supreme Court of Oregon, Department 1.

Argued and Submitted May 3, 1963.

Decided June 19, 1963.

James H. Clarke, Portland, argued the cause for appellant. With him on the briefs were Koerner, Young, McColloch & Dezendorf.

Edwin J. Peterson, Portland, argued the cause for respondents. With him on the brief were Tooze, Powers, Kerr, Tooze & Morrell and Earle P. Skow, Portland.

Before McALLISTER, C. J., and ROSSMAN, SLOAN, GOODWIN, and LUSK, JJ.

LUSK, Justice.

Plaintiff was a lessee of a portion of a building in the city of Portland owned by the defendants, its lessor. On January 3, 1961, a water pipe underneath the building burst and portions of the leased premises were flooded and rugs, drapes, and other personal property of the plaintiff were damaged. Plaintiff brought this action to recover its damages from the defendants. The jury returned a verdict for the defendants and plaintiff has appealed, assigning errors in the instructions of the court.

The complaint alleged that the 'water pipe was out of repair or was in a defective condition', but that '[t]he exact nature of said defect in said pipe or the manner in which it was out of repair is unknown to plaintiff.' But plaintiff made no attempt to prove the cause of the occurrence; its sole reliance was res ipsa loquitur.

There is no dispute about the facts. The eight-inch pipe passed from the street under a room in the leased premises used by the plaintiff as a laboratory. It served an automatic sprinkler system in other parts of the building. It was embedded some three or four feet beneath a concrete floor, which was six inches thick. The pipe could not be seen and could not be inspected without breaking through the concrete floor.

Defendants acquired ownership of the building in 1957 and no change was made in the pipe thereafter nor had there ever been any difficulty with it.

On the morning of January 3, 1961, an employee of plaintiff, on entering the building, discovered that the concrete floor of the laboratory had buckled and the floor of the laboratory and other portions of the leased premises were covered with water, sand, silt and other debris, damaging the rugs and other personal property of the plaintiff. The damage was caused by the breaking of the pipe. It was described as a 'clean break.'

The court submitted the case to the jury with an instruction on res ipsa loquitur in language requested by the plaintiff. ¹ Plaintiff, however, assigns as error the court's refusal to give the following instruction requested by it:

'If you should find that the defendants have come forward with evidence in an attempt to rebut or explain away the inference of their negligence, then, I instruct you that it is your duty to weigh such evidence as the defendants have brought forward in connection with explaining the inference of negligence upon their part and to make an ultimate determination of where the evidence preponderates, in accordance with the instruction relating to burden of proof which I have already given to you.'

The instruction is faulty because it is phrased so as to imply that the inference of negligence from the occurrence is compelled rather than merely permissive, Ritchie v. Thomas et al., 190 Or. 95, 112, 224 P.2d 543; Guthrie v. Muller, 213 Or. 436, 445, 325 P.2d 883. But apart from this criticism, the court was not required to give the instruction.

Plaintiff cites as authority for its request Fink v. New York Central Railroad Company, Ohio App., 56 N.E.2d 931, aff'd 144 Ohio St. 1, 56 N.E.2d 456, and Leone v. Rutt's Hut, Inc., 55 N.J.Super. 485, 151 A.2d 44.

Fink v. New York Central Railroad Company did not involve any question of instructions. A railway mail clerk sued the railway company for personal injuries caused by the derailing of the train in which he was riding. The defendant offered evidence tending to show that the accident was caused by the overturning of an automobile on the track and the engineer was unable in the exercise of reasonable care to see the obstruction in time to stop the train and avoid hitting it. The trial judge in his charge withdrew the issue of res ipsa loquitur on the theory that, as he said: '[A]fter all the evidence was concluded [the case] lost the characteristic * * * of a res ipsa loquitur means * * *.' 56 N.E.2d at 934. The court of appeals held this to be reversible error, saying:

'Neither the inference resulting from the application of this rule or the inference of care to be drawn from the evidence showing an explanation are conclusive upon either party. The evidence developing the inferences present[s] a factual issue for the trier of the facts, but certainly the jury should be advised that it is permitted, yes, required to weigh the effect of such respective inferences. * * *' 56 N.E.2d at 935.

The Supreme Court affirmed the court of appeals. The question decided was, as the Supreme Court stated:

'Did the trial court err in determining as a matter of law that the inference of negligence arising from the derailment of the train had been overcome by the explanation offered by the defendants?' 144 Ohio St. at 10, 56 N.E.2d at 460.

In Leone v. Rutt's Hut, Inc., plaintiff sued defendant for wrongful death and other injuries caused by defendant's wooden sign falling on the automobile of plaintiffs' decedent. Defendant sought to show that the sign was caused to fall by an act of God, to wit: Hurricane Hazel. The Superior Court of New Jersey, Appellate Division, reversed a judgment for the defendant because the trial judge refused to give the following requested instruction:

'Even if the defendant comes forward and presents evidence as to the cause of the occurrence, the inference of negligence on its part which may be drawn from the doctrine of res ipsa loquitur remains in the case and should be considered by you together with all other evidence in the case.' 55 N.J.Super. at 492, 151 A.2d at 47.

The court cited as authority Galbraith v. Smith, 120 N.J.L. 515, 1 A.2d 34, which presented no question of instructions but was a case tried by the judge without a jury. The trial judge in that case had rendered a judgment for the defendant on the theory that when the defendant's explanation of the cause of the accident came in the inference from its happening was dispelled. The Supreme Court reversed, saying that the inference remained and should be considered by the trier of the facts.

Of course this is the law, but the question here is whether the judge must so inform the jury in an instruction such as the defendants requested. Upon that precise question the only authority which the plaintiff has brought to our attention is a decision of an intermediate appellate court of New Jersey.

In the instant case it is to be noted that the defendants offered no explanation of the bursting of the pipe to rebut the inference of negligence which the jury could draw from the occurrence. They simply testified that they knew nothing about it. To that extent Leone v. Rutt's Hut, Inc., is distinguishable, because the instruction there held to have been erroneously refused was related to the defendant's explanation of the cause of the occurrence. Putting this to one side, we hold that it was not reversible error for the court to decline to give the instruction in the case at bar because we think it clear that the jury must have understood from the charge that they were to weigh the inference along with the other evidence in this case. Indeed, on the issue of negligence the inference and the defendants' duty to rebut it were substantially all that was submitted to the jury for...