Hippe v. Duluth Brewing & Malting Co.

• Decision Date: 31 July 1953
• Docket Number: No. 35937,35937
• Parties: HIPPE et al. v. DULUTH BREWING & MALTING CO. et al.
• Court: Minnesota Supreme Court

Page 665

59 N.W.2d 665

240 Minn. 100

HIPPE et al. v. DULUTH BREWING & MALTING CO. et al.

No. 35937.

Supreme Court of Minnesota.

July 31, 1953.

Syllabus by the Court.

1. The doctrine of Res ipsa loquitur is not applicable where the instrumentality causing the harm is not within the exclusive control of the defendant.

2. Where no defect in the chattel itself is shown to have caused the harm and the negligence, if any, was in the manner in which the chattel was left when its installation was not completed, liability in tort cannot be predicated upon the theory that the defendants were the suppliers of a defective chattel.

3. In actions for death by wrongful act and the recovery of damages for the destruction of a building and personal property by reason of fire, evidence considered and Held to permit a finding of negligence in connection with the installation of an electric transformer and a neon sign on plaintiffs' premises; therefore, it was error for the trial court to direct a verdict against plaintiffs on the grounds that there was insufficient evidence of negligent conduct.

4. A company which assumes the responsibility of installing, through its own employee, an instrumentality likely to cause harm if not installed properly, impliedly professes to have the requisite skill and is bound to know the ordinary characteristics of the instrumentality. Assuming, as defendant produce company contends, that it engaged the services of a licensed electrician to install the transformer on plaintiffs' premises, it, nevertheless, must be charged with knowledge of the characteristics of the transformer in view of the facts and circumstances presented in the instant case.

5. The essential basis of a principal's liability to a third party is his right to control his agent's physical conduct in carrying out the latter's work. Evidence considered and Held that defendant brewing company could not be found liable as a principal for defendant produce company's negligence in failing to complete installation of electric transformer and neon sign on plaintiffs' premises and in leaving the transformer in the condition disclosed by the evidence; therefore, trial court properly directed verdict in favor of defendant brewing company.

6. Evidence considered and Held sufficient to justify a finding that the fire inquestion was proximately caused by the transformer's being energized and high voltage current sparking from the secondary wires; therefore, a jury could find that defendant produce company's negligence in not completing the installation and leaving it in the condition it did was the sole and proximate cause of plaintiffs' injury and damage.

7. Evidence considered and Held that plaintiffs' contributory negligence presented a question of fact for the jury.

Erlandson & Erlandson, Brainerd, Ryan, Ryan, Ryan & Ebert, Brainerd, for appellants.

Thos. P. Welch, Buffalo, for Litchfield Produce Co.

Richards, Janes, Hoke, Montgomery & Cobb, Minneapolis, Reavill, Jenswold, Neimeyer & Johnson, Duluth, for Duluth Brewing & Malting Co.

CHRISTIANSON, Justice.

Plaintiffs appeal from an order of the district court denying their motion for vacation of the verdict in favor of defendants returned under direction of the court and for a new trial. Four actions were consolidated in the district court for trial and are consolidated here on appeal. Three of the actions are for the wrongful deaths of Delbert, Delores, and Donald Hippe, which resulted from a fire allegedly caused by defendants' negligence, and are brought by Emie Hippe, as administratrix of the estates of the three decedents, for the benefit of herself and Ben Hippe, as parents and next of kin of the three decedents. The fourth action is brought by Ben Hippe to recover damages for destruction of a building and personal property by the same fire. Defendants in all four actions are the Duluth Brewing & Malting Company and the Litchfield Produce Company.

The building destroyed by the fire was divided into three main sections. It was a large frame building with a south or front wall approximately 122 feet long. The first section, on the east end of the building, occupied about 12 feet of frontage and extended some 34 feet toward the rear. It contained a bedroom, dining room, and kitchen on the first floor and three bedrooms on the second floor, and it was used as living quarters by the Hippe family and two employees. Adjoining the living quarters immediately to the west was the center section of the building, which housed a combined general store and tavern. This section was also two stories high, the upper story being unfinished, and it occupied some 40 feet of frontage and was about 76 feet deep. The remaining 70 feet of frontage was taken up by a combined dance hall and roller skating rink, which was a single-story section extending about 34 feet toward the rear.

Of the 40-foot section of the south wall that made up the front of the store-tavern, about 30 feet were taken up by windows. In the southwest corner of the store-tavern were two doors, one in the south wall leading outside to the area in front of the store-tavern and the other in the west wall leading into the adjoining dance hall. Just north of the latter door on the west wall of the store-tavern was a double toggle switch on a single wall plate. The electric wires from one switch led to an outdoor yard light. During remodeling of the store-tavern, the wires from the other switch had been run behind the wall surface over the two doors to a point above the front windows where they were to be connected to an electric neon Karlsbrau beer sign.

Karlsbrau beer, manufactured by defendant Duluth company, was one of the items carried by plaintiffs in their store-tavern in 1940. It was sold to plaintiffs by defendant Litchfield company, the local distributor of Karlsbrau beer, who bought the beer wholesale from the Duluth company and delivered it to its retail customers in its own trucks. In May or June of that year, plaintiffs asked Clarence Froehle, who had charge of the Litchfield company's beer business, to obtain a neon sign for the windows of the store-tavern. Froehle asked for and received from the Duluth company three signs and the electric transformers necessary to their operation; the Litchfield company in turn delivered one sign and transformer to plaintiffs.

The transformer operated on standard 110-120-volt house current, for which plaintiffs' store-tavern was wired. The current entered the primary or low side of the transformer and emerged from the secondary or high side as 12,000-volt current, which was necessary to light the neon sign. An experienced sign contractor testified that this high-voltage, low-amperage current was not dangerous to human life but had a high propensity to spark between the two wires leading from the high side of the transformer, or between one wire and another part of the same wire, or between one wire and certain other substances. The witness testified that the spark could jump up to one and one-quarter inches and that, if the power were left on for several hours, the spark could even eat through insulation and then jump that distance.

There is a dispute in the testimony regarding who installed the transformer. Plaintiffs testified that Froehle himself installed it; Froehle testified that the Litchfield company hired a licensed electrician to install it and was reimbursed for the cost by the Duluth company. The transformer was installed above the front windows where the ceiling and front wall came together, about nine or ten feet from the floor, and was connected to the wires running to that point from one of the switches on the west wall near the door leading to the dance hall. Two wires hung down about 18 inches from the high side of the transformer to be connected to the neon sign. After the transformer was installed, it was discovered that the none sign was cracked and could not be used. Froehle said that he would replace the sign later, and the transformer was left in position with the two secondary wires hanging down below the top of the window, each bare of insulation for about two inches on the end. No other sign was ever delivered.

During the Christmas season of 1940, following installation of the transformer, plaintiffs hung crepe paper decorations in the front windows of the store-tavern. One night Mrs. Hippe operated what she thought to be the switch to the outdoor yard light and went out into the yard. The yard light was not on and when she returned the decorations in the vicinity of the exposed secondary wires were burning. The fire was extinguished without difficulty and the decorations were removed. Mrs. Hippe testified that she then realized she had mistakenly operated the wrong switch, energizing the transformer instead of turning on the yard light. The following day plaintiffs' son Donald, then 14 years old, covered the bare ends of the transformer wires with friction tape and bent the wires up so that they no longer hung below the top of the window.

Some seven years passed without further incident. Then, on the evening of May 12, 1948, Mr. Hippe had to go out into the yard to attend to some customers' wants at about 10 o'clock. As he went out he operated one of the wall switches, intending to turn on the yard light, but he is not sure which switch he in fact operated. When the customers left, Mr. Hippe went to bed in the downstairs bedroom where Mrs. Hippe was already asleep. The three Hippe children and the two employees were sleeping in the upstairs bedrooms. Mrs. Hippe was awakened about 4 o'clock the next morning by screams from overhead and other noises. She woke Mr. Hippe and, when they went into the store-tavern, they saw flames in an area surrounding the transformer and going up through the ceiling above the transformer. They summoned aid but were unable to control the fire. The building and its contents were completely destroyed. One...