Dalager v. Montgomery Ward & Co., Inc.

• Decision Date: 05 June 1984
• Docket Number: No. C1-83-1673,C1-83-1673
• Citation: 350 N.W.2d 391
• Parties: Mark DALAGER, Paul Brenden, Stanley Panchott, and Linda Panchott, Husband and Wife, Respondents, v. MONTGOMERY WARD & COMPANY, INC., Appellant, v. Wayne R. PERRAULT, Respondent.
• Court: Minnesota Court of Appeals

Page 391

350 N.W.2d 391

Mark DALAGER, Paul Brenden, Stanley Panchott, and Linda

Panchott, Husband and Wife, Respondents, v. MONTGOMERY WARD & COMPANY, INC., Appellant, v. Wayne R. PERRAULT, Respondent.

No. C1-83-1673.

Court of Appeals of Minnesota.

June 5, 1984.

Syllabus by the Court

1. Evidence on the issue of causation of a fire which destroyed plaintiffs' property was sufficient to sustain the jury's verdict finding defendant liable for plaintiffs' damages.

2. Whether a worker is an agent or an independent contractor is a jury question. Evidence of the relationship between the worker and the defendant was sufficient to support the jury's finding of agency.

3. While the trial court may have erred in answering a question asked by the jury, the error was harmless where the jury instructions, when viewed as a whole, were not misleading.

James A. Sage, Gruesen, Peterson & Sage, P.A., Duluth, for appellant.

Michael W. Haag, Donovan, McCarthy, Crassweller & Magie, P.A., Duluth, for Dalager, et al.

Wayne R. Perrault, pro se.

Heard, considered and decided by POPOVICH, C.J., and FORSBERG and RANDALL, JJ.

OPINION

RANDALL, Judge.

Plaintiffs brought suit against Montgomery Ward and Co., Inc., alleging that its negligence proximately caused the destruction of plaintiffs' property by fire. The defendant impleaded a third party defendant. A jury found the defendant 65% negligent, the third-party defendant 35% negligent, and found that the third-party defendant was an agent of the defendant. After the court denied defendant's motion for judgment n.o.v. or for a new trial, the defendant appealed. We affirm.

FACTS

Montgomery Ward & Co., Inc. ("Wards") sold roofing to owners of a house located at 1404 East Fourth St. in Duluth, and hired a roofer to install or apply the roofing materials. The roofer entered into a written agreement with Wards entitled "Installation Contractor's Agreement." Wards applied for and received the necessary building permit, as the roofer was not licensed as a building contractor in Duluth.

The roofer hired three workers, and they began to remove the old roofing material from the house on April 20, 1980. The old roofing material, consisting of asphalt shingles and cedar shakes, was thrown to the ground and left lying in the space between the houses at 1402, 1404, and 1406 East Fourth Street, a space about three feet wide. On April 22, 1980, while the workers were working on the roof, a fire of undetermined origin started in the roofing debris, which destroyed personal property belonging to the tenants of 1404 and 1406 East Fourth.

The tenants brought an action against Wards, alleging that Wards was liable for their damages either because they negligently hired and supervised the roofer or because the roofer was the agent of Wards and Wards was thus vicariously liable. Wards impleaded the roofer, who is not a party to this appeal. The jury found the roofer 35% negligent, Wards 65% negligent, and found that the roofer was an agent of Wards. Negligence of the tenants was not at issue and was not submitted to the jury.

ISSUES

I. Was the evidence on causation and negligence sufficient to sustain the verdict?

II. Was the evidence sufficient to sustain the jury's determination that the roofer was an agent of Wards?

III. Did the trial court err reversibly in answering a question asked by the jury during its deliberations?

ANALYSIS

I

Sufficiency of evidence of causation and negligence: There was no direct evidence adduced at trial as to the actual cause of the fire. Wards alleges that, because of the lack of direct evidence, the jury's finding that Wards and the roofer were negligent was mere speculation and conjecture. However, a party need not prove his theory beyond a reasonable doubt nor demonstrate the impossibility of every other reasonable hypothesis in order to reach the jury. Evidence with respect to the origin of a fire, even though such evidence is circumstantial, presents a jury question. Trimbo v. Minnesota Valley Natural Gas Co., 260 Minn. 386, 110 N.W.2d 168 (1961).

It was uncontradicted in this case that the fire started in the debris which had been torn from the roof and tossed to the ground. One witness (Talbot) stated that he had observed the workers on the roof smoking just before the fire. The written statements of two other witnesses which were admitted into evidence indicated that they, too, had seen the workers smoking on the roof above the debris shortly before the fire started. Larry Bushey, the Duluth fire chief who investigated the fire, found no gas leaks, electrical wires, or other sources of ignition, and concluded that the only logical possibility was that the fire was caused by a cigarette dropped into the debris.

Wards attempted, on cross-examination of Chief Bushey, to elicit testimony that the fire could have been caused by any number of causes: passers-by, children playing with matches, even arson. While the Chief agreed that they were all possibilities, he reiterated that he thought the most likely cause was a cigarette dropped by a worker on the roof. Wards' expert, the fire marshall for the City of Roseville, also testified the fire could have started from any number of causes.

The burden is on the plaintiff to establish the origin of the fire, and the proof must be such as to justify an inference of fact, nor merely speculation or conjecture. Rochester Wood Specialties, Inc. v. Rions, 286 Minn. 503, 176 N.W.2d 548 (1970). However, it is not necessary for the plaintiff to rule out every other possible cause. Where the evidence sustains, with equal justification, two or more inconsistent inferences as to the cause, a defendant responsible for only one of such causes cannot be held liable. E.H. Renner & Sons v. Primus, 295 Minn. 240, 203 N.W.2d 832 (1973). Here, however, the evidence does not sustain two or more inconsistent inferences with equal justification. The other causes Wards suggested for the fire are mere speculation, and the jury was justified in rejecting them. The evidence was sufficient to sustain the jury's verdict based upon a finding that the debris was ignited by a roofer's cigarette.

Even if it were not, however, Chief Bushey testified that allowing the debris (composed of old, dry cedar shakes and asphalt shingles) to pile up to 6-8" deep in the three foot wide area between the houses was itself hazardous, and that, had the debris been stored elsewhere, the fire would not have spread so fast and damages would have been minimal. The roofers testified they took no precautions against fire even though it was a hot and windy day. From this evidence, even without evidence that a roofer's cigarette may have caused the fire, the jury could have determined that the roofers' actions were negligent. Even if the roofers' negligence in allowing the debris to pile up was not itself the cause of the fire's ignition,

The fact that the negligence was not a cause of the fire starting does not preclude a finding that [the] negligence was a proximate cause of the fire spreading and of the fire damage, for which responsibility may ensue.

Alden Wells Veterinary Clinics v. Wood, 324 N.W.2d 181, 183 (Minn.1982). Given the deference we are required to accord a jury's verdict, see, e.g. Northern Petrochemical Co. v. U.S. Fire Insurance Co., ...