Fischer, Inc. v. Standard Brands, Inc.

• Decision Date: 21 February 1973
• Docket Number: No. 55217,55217
• Citation: 204 N.W.2d 579
• Parties: FISCHER, INC., a corporation, et al., Appellants, v. STANDARD BRANDS, INC., a corporation, Appellee.
• Court: Iowa Supreme Court

Page 579

204 N.W.2d 579

FISCHER, INC., a corporation, et al., Appellants, v. STANDARD BRANDS, INC., a corporation, Appellee.

No. 55217.

Supreme Court of Iowa.

Feb. 21, 1973.

Clausen, Hirsh, Miller & Gorman, Chicago, Ill., and Reynolds, Kenline, Roedell, Breitbach & McCarthy, Dubuque, for appellants.

Klauer, Stapleton, Ernst, Sprengelmeyer, & Schrup, Dubuque, for appellee.

Heard before MOORE, C.J., and MASON, RAWLINGS, REYNOLDSON and McCORMICK, JJ.

MOORE, Chief Justice.

Plaintiffs, property owners, business operators and insurance carriers, appeal from judgment on jury verdict denying their damage claims resulting from spread of fire from defendant's building.

In division I of their combined petition plaintiffs alleged five specifications of negligence. In division II they alleged general negligence under the doctrine of res ipsa loquitur. The trial court sustained defendant's motion to strike and withdraw division II from the jury. The allegations of division I, including four of the pleaded specifications, were submitted to the jury. Verdicts in favor of defendant on the claim of each plaintiff were returned.

On this appeal plaintiffs jointly assert the trial court erred in (1) not striking the opinion of defendant's expert given in response to a hypothetical question, (2) striking that portion of plaintiffs' petition premised upon the doctrine of res ipsa loquitur, (3) denying the motion to amend their petition to conform to the proof and (4) refusing to grant a new trial on the ground of jury misconduct.

The printed record of 503 pages of course can only be summarized as necessary to consider the assigned errors. In April 1965 plaintiff, Fischer, Inc., and defendant, Standard Brands, Inc., occupied separate portions of an installation known as 'Fischer Complex', located on the Mississippi riverfront between the Third and Sixth Street extensions in Dubuque. The two buildings separated only by a wall in the complex were separately owned, operated and maintained by Fischer and Standard. The other plaintiffs owned or insured various products stored in Fischer's cold storage operation. Fischer provided the ammonia cooling system for the entire plant, including the egg-cooler room of Standard. Otherwise the two companies ran completely separate operations. The electric power company ran separate lines to Fischer and Standard. There was no pooling of resources or employees between the companies.

Standard's premises were used as an egg-processing plant. The raw product was received in an enclosed dock and then moved into Standard's egg-cooler room before being transferred to the breaking and processing room. Upon completion of Standard's processing the eggs were taken through a door to Fischer's sharp freezer room for storage.

The loading dock was normally heated by two Reznor suspended gas heaters. There were several electrical outlets on the dock. The dock and egg-cooler room had overhead lights. On the night of the fire the gas to the heaters had been shut off.

The fire here involved broke out in the early morning hours of April 23, 1965. The egg-cooler room and the receiving dock were the areas immediately involved. At that time the Fischer Complex was completely surrounded by flood waters from the Mississippi River. The water on the loading dock was two or three feet deep and was being held out of the egg-cooler room by sandbags, plastic sheeting, roofing tar and two dewatering pumps, one electric and the other a new Sears Homart gasoline engine-driven pump. Standard had completely halted its egg-processing operation. Only a small crew remained to protect the building from the flood. One of those in Standard's area was Richard Swartz an employee of Creamery Package Manufacturing Company. He had earlier set up the electric pump to remove flood water seepage. The night of the fire he was voluntarily engaged in aiding Standard.

There was water no more than ankle deep in the egg-cooler room, caused by seepage. Some 6000--8000 empty egg crates were stored in the cooler room, resting on pallets eight inches above floor level and thus out of the water. The rows of egg crates were stacked eight to ten crates high. The bottom crates had absorbed some moisture, were damp and bulging slightly.

Swartz had been in the cooler room about 2:45 a.m. on April 23 checking the pumps. He visually checked the electric and gasoline pump which were operating, some distance apart, in the cooler room. Both were pumping water through hoses made of polyvinylchloride, a material which, if burnt, smells like overheated electrical wires. Both pumps were functioning normally. There was no fire or disturbance at that time. Swartz went to the plant office to finish a cup of coffee, then went back near the cooler room. He smelled smoke like from an overheating electric motor. He went into the cooler room to check the electric pump. It was cool. He heard a crackling sound like a fire and started toward the gasoline pump. When about halfway there he observed burning egg crates in the vicinity of the gasoline pump. The flames obscured the pump and its connections from his vision. Swartz ran for help and on his return in a few minutes found the cooler room filled with dense black smoke. Soon thereafter, with others, including Fischer employees, Swartz left the complex in a boat. As the fire spread, flames shot 40 to 50 feet in the air, electrical lines were melted, steel beams twisted and concrete walls between Fischer and Standard crumbled. Both parts of the complex and their contents were badly damaged before the city firefighters brought the fire under control. The amounts of plaintiffs' damages are not an issue on this appeal.

Plaintiffs' fire investigation expert, Henry S. Morton, made an on-site inspection of the premises approximately four months after the fire. It was his opinion the fire was caused in one of several fashions: creeping or walking of the gasolinepowered pump putting it in contact with the egg crates; the collapse of some of the egg crate stacks causing one or more to fall upon the gasoline pump engine; overheating of the pump or a fuel system malfunction.

Defendant's fire investigation expert, Jay Trexler, in response to a hypothetical question expressed the opinion the fire was caused by some electrical malfunction. He theorized the electric fans on the Reznor suspended gas heaters being thermostatically controlled had continued to run, had overheated and shorted out the wiring causing a fire which reached the egg crates. He described the electrical outlets along the dock and opined the flood water could have been a factor in the electrical malfunction.

I. Plaintiffs-appellants first argue the trial court erred in overruling their motion to strike Trexler's answer to the hypothetical question. Trexler had not visited the site until the building had been restored to substantially its original condition. He listened to the trial testimony and examined the many exhibits which had been received in evidence. After stating in detail his education and experience in fire examinations and fire causes, he was asked a lengthy hypothetical question. He was asked to assume many, if not all, of the facts referred to in the evidence. The printed question set out in the record covers 14 pages. No useful purpose would be served by setting it out in this opinion.

When Trexler was asked to state his opinion plaintiffs' counsel stated:

'For the record purposes, the plaintiffs are making no objections to this question at this time, reserving the right to move to strike the opinion at a later time after cross-examination of the witness, without waiver of the basic objections which might be demonstrated upon cross-examination as to the qualifications of the basis of the witness's opinion.'

Trexler testified:

'My opinion would be that this fire was caused by some malfunction of an electrical nature in the northwest corner of the cooler, north and west of the fire area, and that is my opinion.'

On further direct examination he stated in detail the facts on which he based his opinion. He gave his reasons why he disagreed with the opinion of plaintiffs' expert.

Trexler was then subjected to thorough exhaustive cross-examination regarding facts assumed and his reasoning. The report thereof covers 146 pages of the record and took most of one full trial day.

At the close of cross-examination plaintiffs' counsel moved to strike Trexler's answer to the hypothetical question first for lack of qualifications (not pursued on appeal):

'* * * and secondly, because the answer to the hypothetical question has now been indicated by the cross-examination of this witness to have been given in fact upon innumerable assumptions not contained in the hypothetical question, assumptions which in turn necessarily are mere opinions and conjectures so that not only is the opinion given in answer to the hypothetical question not based upon the facts submitted in the hypothetical question, but is also now clearly based conjecture upon conjecture upon conjecture, and as a result would be an incompetent opinion and conclusion even if it were not beyond the scope of the hypothetical question.'

We are committed to a liberal rule on the admission of opinion evidence. The matter rests largely within the discretion of the trial court. The liberal rule does not mean opinion evidence is admissible over proper objection where there has been no proper foundation as to the qualifications of the expert or the form and content of the questions asked. Karr v. Samuelson, Inc., Iowa, 176 N.W.2d 204, 209, and citations. See also 19 Drake L.Rev. 245, Opinion Evidence in Iowa at page 270. The trial court will be reversed only on a clear showing of abuse of discretion. Rasmussen v. Thilges, Iowa, 174 N.W.2d 384, 387; Dougherty v. Boyken, 261 Iowa 602, 607, 155 N.W.2d 488, 491 and citations.

Here the thrust of plaintiffs' contention is that their cross-examination...