E. H. Renner & Sons, Inc. v. Primus

• Decision Date: 19 January 1973
• Docket Number: No. 43543,43543
• Citation: 295 Minn. 240,203 N.W.2d 832
• Parties: E. H. RENNER & SONS, INC., Respondent, v. Lee B. PRIMUS and Maude H. Primus, d.b.a. Ski-Tonka, Appellants. E. H. RENNER & SONS, INC., third-party plaintiff, Respondent, v. JACUZZI BROTHERS, INC., third-party defendant, Respondent.
• Court: Minnesota Supreme Court

Page 832

203 N.W.2d 832

295 Minn. 240

E. H. RENNER & SONS, INC., Respondent, v. Lee B. PRIMUS and Maude H. Primus, d.b.a. Ski-Tonka,

Appellants.

E. H. RENNER & SONS, INC., third-party plaintiff, Respondent, v. JACUZZI BROTHERS, INC., third-party defendant, Respondent.

No. 43543.

Supreme Court of Minnesota.

Jan. 19, 1973.

Syllabus by the Court

In a counterclaim for negligence, where the evidence in the record and the specific evidence on causation are in the nature of an expert's opinion that there are several possible causes for the damage claimed and that of the three most probable, one is more probable than the others, if there is no direct evidence preferring any one over the other, the jury cannot be allowed to speculate as to whether actionable negligence exists and whether there is causal connection by engaging in speculation and conjecture. In such a situation the action of the trial court in dismissing defendants' counterclaim and ordering judgment for plaintiff will be affirmed.

Primus & Primus and John L. Tambornino, Minneapolis, for appellants.

Clifford G. Nelson, T. Robb, Van Eps & Gilmore and Duane E. Arndt, Minneapolis, for Renner & Sons.

Mordaunt, Walstad, Cousineau & McGuire, and William F. Davern, Minneapolis, for Jacuzzi Bros. Inc.

Heard before KNUTSON, C.J., and ROGOSHESKE, MacLAUGHLIN, and SCHULTZ, JJ.

HAROLD W. SCHULTZ, Justice. ^*

This is an appeal from a judgment of the district court which dismissed the counterclaim of defendants, with prejudice, and granted plaintiff judgment in the requested amount of $468.81.

The trial court found insufficient evidence of a causal connection between any act or omission on the part of plaintiff and the damage to defendants. The issue presented on this appeal is whether the trial court erred in directing a verdict in favor of plaintiff on defendants' counterclaim.

Defendants, who operate a ski resort, requested plaintiff to install a pump for the water to supply their snow-making equipment. The pump was installed in August or September 1966. It operated properly until December 1967 when the motor shorted, apparently because of moisture in the electrical junction box. The motor was repaired by plaintiff, resulting in the claim for $468.81. At the trial the parties stipulated that the plaintiff's claim in the amount of $468.81 was proper. Plaintiff never worked on the pump again after February 1968. The pump operated properly through the remainder of the snowmaking season of 1968 and until 1971.

On January 6, 1971, it was found that the pump was vibrating and leaking. The Bergerson-Caswell Company removed the pump and repaired it at a cost of $1,919.53. The pump was not used for snow making for the remainder of that season. Defendants then counterclaimed for $25,000, claiming a loss of income by reason of the failure of the pump.

The defendants offered the testimony of an expert witness, Mr. Thomas B. Caswell of Bergerson-Caswell. Caswell testified that extreme wear was shown on the line shaft of the pump which could have been caused by one of three reasons: (1) a sprung shaft, (2) improper lubrication, or (3) improper tension on the cover tube. Defendants' attorney, in a hypothetical question, asked the expert to assume that lubrication was proper. The expert further testified that a sprung shaft was a 'rather slight probability.' He then concluded that the probable cause of the wear, assuming proper lubrication, was insufficient tension on the cover pipe. Defendants' expert further testified that tension is put on the cover pipe when first installed by tightening the stretch nut and that if the installation is done correctly, the tension should not change. Caswell concluded that the wear on the pipe would develop within a minimum of 200 hours. The witness never testified that improper tension was, in fact, put on the cover pipe at the time of installation. Nor did he even speculate that the cause of the pump's failure was improper installation.

The trial court concluded that defendants had failed to prove a prima facie case as to causation, there being no direct evidence as to whether the installer did or did not put correct tension on the pipe. The jury would have been left to speculate as to the causal relation between the acts of plaintiff and the damages to defendants. The trial court, after long discussion with counsel in chambers and in reviewing the evidence, found that no testimony had been produced, either directly or by opinion, that plaintiff had not put correct tension on the cover pipe. The court stated that improper installation by plaintiff was only one possible inference among many.

The sole question then is...