Federal Ins. Co. v. Public Service Co.

• Decision Date: 26 September 1977
• Docket Number: No. C-1093,C-1093
• Citation: 194 Colo. 107,570 P.2d 239
• Parties: FEDERAL INSURANCE COMPANY, Sentinel Publishing Company, Inc., the St. Paul Fire and Marine Insurance Company, Transamerica Insurance Company, Kelley Brothers Rewind Company, d/b/a H & M Electric Motor Service, Marvin L. Miller, Wanda O. Miller, Mesa Feed & Farm Supply Co., Grain Dealers Mutual Insurance Company, Colorado Farm Bureau Mutual Insurance Co., and Insurance Company of North America, Plaintiffs-Appellants, v. The PUBLIC SERVICE COMPANY of Colorado, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 239

570 P.2d 239

194 Colo. 107

FEDERAL INSURANCE COMPANY, Sentinel Publishing Company Inc., the St. Paul Fire and Marine Insurance Company Transamerica Insurance Company, Kelley Brothers Rewind Company, d/b/a H & M Electric Motor Service, Marvin L Miller, Wanda O. Miller, Mesa Feed & Farm Supply Co., Grain Dealers Mutual Insurance Company, Colorado Farm Bureau Mutual Insurance Co., and Insurance Company of North America, Plaintiffs-Appellants, v. The PUBLIC SERVICE COMPANY of Colorado, Defendant-Appellee.

No. C-1093.

Supreme Court of Colorado, En Banc.

Sept. 26, 1977.

Rehearing Denied Oct. 31, 1977.

Traylor, Palo, Cowan & Arnold, Charles J. Traylor, Davis L. McKinley, Grand Junction, for plaintiffs-appellants, Sentinel Pub. Co., Inc., The St. Paul Fire & Marine Ins. Co., Transamerica Ins. Co., Kelley Brothers Rewind Co., d/b/a H & M Elec. Motor Service, Marvin L. Miller and Wanda O. Miller, and co-counsel for Federal Ins. Co.

Cummins, White & Breidenbach, James O. White, James R. Robie, Los Angeles, Cal., for plaintiff-appellant Federal Ins. Co.

Graham & Dufford, Hugh D. Wise, Grand Junction, for plaintiffs-appellants, Mesa Feed & Farm Supply Co., Grain Dealers Mut. Ins. Co., Colo. Farm Bureau Mut. Ins. Co., and Ins. Co. of North America.

Kelly, Stansfield & O'Donnell, Richard W. Bryans, Denver, Younge, Hockensmith, Griffin, Robb & Rider, James M. Robb, James S. Casebolt, Grand Junction, for defendant-appellee, The Public Service Co. of Colo.

ERICKSON, Justice.

We granted certiorari prior to judgment in the court of appeals to review the judgment entered against appellants in favor of appellee, Public Service Company of Colorado (Public Service). C.A.R. 50. We reverse. The only issue addressed in this opinion is whether the trial court erred in refusing to give certain jury instructions tendered by appellants concerning the standard of care by which Public Service's conduct was to be judged.

On April 9, 1974, electrical "arcing" was observed at the Mesa Feed & Farm Supply Company in Grand Junction. Public Service responded to an emergency call be sending a crew to the Mesa Feed location. Shortly thereafter, a unit of the Grand Junction fire department arrived at the scene. A Public Service supervisor told the fire chief that everything was under control. He advised the fire chief that the power to the building had been shut off and said that there was no need for the firemen to enter the building. Both the firemen and the Public Service crew then left the scene. Thirty minutes later, a fire was observed at the Mesa Feed building. Efforts to contain the fire were unsuccessful, and the fire spread to the buildings of the other appellants.

The appellants filed suit against Public Service to recover for the property damage caused by the fire. Trial to a jury resulted in a verdict in favor of defendant Public Service. After appellant's motion for a new trial was denied, a notice of appeal was filed in the court of appeals. Appellants simultaneously petitioned this court for a writ of certiorari, which was granted. C.A.R. 50, 51.

The trial court's refusal to give plaintiffs' Instructions A, B, D, and E is assigned as error. Instructions A and E were substantially similar and stated that a company engaged in furnishing electricity must exercise the highest skill and most consummate care, caution, and foresight according to the best known methods of the state of the art. Instruction B stated that an electric company is presumed to possess special knowledge and skill in electricity which it must utilize for the protection of its patrons. Instruction D stated that in determining whether a person has exercised reasonable care and caution, the jury must be aware that the required care increases as the danger increases; that when a business is by its nature perilous, as is the transmission of electricity, the duty of those conducting and supplying it is to exercise the utmost care.

Instead of instructing the jury in accordance with the tendered instructions, the trial court submitted Colorado Jury Instruction (CJI) 9:3 to the jury, which provides:

"Reasonable Care Defined

"Reasonable care is that degree of care which a reasonably prudent person would use under the same or similar circumstances."

The following explanation was given for refusing the appellants' instructions:

"The court has refused A and B, the designated letter instructions Mr. Traylor referred to, on the grounds that the court feels that ordinary care is the proper construction when modified as in 9:3 by a reference to 'under the circumstances,' the surroundings, and that gives them a place to argue the dangerousness of the situation and the high degree of care that they think should be exercised by a person dealing with that kind of dangerous instrumentality.

"The court feels that in adopting these instructions in C.J.I. by the Supreme Court, that they specifically recognized that they want the use of ordinary care in all these kinds of cases and did not want special standards for special utilities and, therefore, the result came out of it, namely 9:3, as what should be given."

Trial courts are directed to utilize the instructions found in CJI by C.R.C.P. 51.1. However, an examination of that rule makes it clear that those instructions are not to be used if they do not reflect the prevailing law.

"(C.R.C.P.) 51.1 Colorado Jury Instructions. (1) In instructing the jury in a civil case, the court shall use such instructions as are contained in Colorado Jury Instruction (CJI) as are applicable to the evidence and the prevailing law.

"(2) In cases in which there are no CJI instructions on the subject, or in which the factual situation or changes in the law warrant a departure from CJI instructions, the court shall instruct the jury as to the prevailing law applicable to the evidence in a manner which is clear, unambiguous, impartial, and free from argument, using CJI instructions as models as to the form so far as possible."

CJI itself, in its "general directions for use," emphasizes that it is neither a restatement nor an encyclopedia of the prevailing law. The instructions do not, and could not, cover every possible legal principle which may be applicable in a given case. A hardworking, scholarly committee attempted to cause the instructions to reflect the prevailing law. However, the scope of the task undertaken by the drafting committee was such that not every legal rule or exception could be addressed. The trial court still has the duty to examine the prevailing law to determine whether a CJI instruction is applicable to the facts of the particular case and states the prevailing law.

Notwithstanding C.R.C.P. 51.1, Public Service insists that no error occurred, since its duty is to exercise only reasonable care as instructed. Appellants' position, as reflected in their tendered instructions, is that defendant Public Service must exercise the "highest degree of care." Both...