Honey Creek Corp. v. WNC Development Co.

• Decision Date: 23 July 1975
• Docket Number: No. 1--874A124,1--874A124
• Citation: 331 N.E.2d 452,165 Ind.App. 141
• Parties: HONEY CREEK CORPORATION et al., Appellants-Defendants, v. WNC DEVELOPMENT COMPANY, Appellee-Plaintiff, and Sears, Roebuck & Co., Appellee-Defendant.
• Court: Indiana Appellate Court

Page 452

331 N.E.2d 452

165 Ind.App. 141

HONEY CREEK CORPORATION et al., Appellants-Defendants, v. WNC DEVELOPMENT COMPANY, Appellee-Plaintiff and Sears, Roebuck & Co., Appellee-Defendant.

No. 1--874A124.

Court of Appeals of Indiana, First District.

July 23, 1975.

Rehearing Denied Aug. 28, 1975.

Robert H. Hahn, Jeffrey R. Kinney, Banberger, Foreman, Oswald & Hohn, Evansville, for appellants-defendants.

Robert S. Ratcliffe, Dix, Patrick, Ratcliffe & Adamson, Terre Haute, for WNC Development Co.

James L. Crawford, Cox, Zwerner, Gambill & Sullivan, Terre Haute, for Sears, Roebuck & Co.

LOWDERMILK, Judge.

This case arose when the cooler unit of an air conditioning system was damaged because it failed to stop operating after the stop button was pushed by an employee of defendant-appellee, Sears, Roebuck & Co. (Sears and/or Tenant), a tenant in Honey Creek Square Shopping Center of Terre Haute. Due to the sale of the shopping center, a corporate merger, and a corporate name change, a complicated fact situation arose as to the party who would ultimately have to bear the loss. To the credit of all the parties involved, it was stipulated that the original landlord, defendant-appellant North Park Apartments, Inc., (North Park) was liable unless North Park could show that Sears was negligent in the operation of the system under the following clause of its lease agreement:

'Tenant agrees that Tenant will, at its own expenses, make all repairs and replacements to or upon the demised premises which become necessary during Tenant's occupancy of said premises, by reason of the fault or neglect of Tenant or of Tenant's employees. . . .'

As a result of the stipulation, the trial was essentially a dispute between the two named defendants, North Park Apartments, Inc., and Sears, Roebuck & Co.

The jury found that Sears was not negligent in the operation of the air conditioning system, and judgment was subsequently entered against North Park. North Park appeals from the negative judgment, contending Sears was negligent as a matter of law and that the judgment entered by the trial court was therefore contrary to law. North Park also claims error in the failure of the trial court to give North Park's instructions numbered 2, 5, and 8, and, further, that these and other errors deprived North Park of a fair trial. The award of attorneys' fees is also challenged.

The facts most favorable to Sears are as follows. On the night of June 7, 1971, the credit manager of Sears, Joseph Munoz, began the customary procedure for the nightly closing of the Sears store. These duties rotated among the four top management personnel at the Sears store; Mr. Munoz had completed this same procedure a few dozen times before.

One of the first tasks completed each night in closing the store was the shutdown of the air conditioning system. Mr. Munoz's uncontradicted testimony was:

'Q. How long did it take the wind-down of the chiller?

A. No more than, I would say, thirty seconds to a minute; it always--by the time I had finished with the other switches--was just about wound down completely.

Q. Thirty seconds for the chiller wind-down, a minute or so for the pump to kick out?

A. Approximately--I would say that's correct.

Q. And you were taught by Mr. Schulz to listen for these sounds and to wait until you had heard them before leaving the premises?

A. That was part of the instructions, yes.

Q. Whether you did that, sir, on the evening of June 7, 1971.

A. Yes, I did.

Q. Are you stating to this Court and Jury now that the chiller went through this process of thirty seconds winding down?

A. It's exactly the way I remember it, yes; nothing happened any different than any other night.

Q. You say that's the way you remember it?

A. Yes, sir.

Q. Well, don't you know as a fact, sir, that the chiller did not stop that night but continued to operate?

A. No, I don't know that.'

'Q. And you testified, I believe, that the first procedure you initiated on June 7, 1971 was to push a stop button or an off button?

A. Yes.

Q. What happened then with respect to any of the lights on the panel there near the stop switch?

A. A green light immediately went out and a red light went on.

Q. I believe you also stated that you pushed two off buttons on the circulating pumps and then you pushed an off button on the cooling fan and that you shut off a chemical--or a lime feeder--chemical?

A. Yes.

Q. And is that the same procedure that you had used on all occasions prior to June 7, 1971 with respect to shutting off the air conditioning system?

A. Yes, sir, it was.

Q. And was the sound of the winding down--or coasting down--you referred to the same as the sounds you had heard on each occasion as you shut off the air conditioning system prior to June 7, 1971?

A. Yes, it was.

Q. And was the sound that you refer to as the oil pump shutting off the same sound that you had heard on each occasion prior to June 7, 1971 when you shut off the system?

A. Yes, it was.'

'Q. Was it your belief when you left that machinery room on June 7, 1971 that the equipment had turned off?

A. Yes, it was.

Q. The air conditioning system?

A. Yes, it was.

Mr. Crawford: No further questions.

Redirect Examination of Joseph J. Munoz

Questions by Mr. Hahn:

Q. Well, it's not a matter of belief, is it, sir? It was off according to your testimony.

A. Yes, sir.

Q. Had stopped completely?

A. Yes, sir.'

It was stipulated that sometime that night or early the next morning the cooler unit began or continued to operate due to a defective switch. Since the lubricating pumps were not operating, the cooler soon overheated and effectively 'burned up', causing $18,720.50 damage. The red stop light was still on when the damage was discovered the following morning.

North Park contends that Sears was negligent in not instructing its employee in the proper operation of this expensive equipment. Mr. Munoz testified that he was not shown the operation manual nor instructed to familiarize himself with its provisions. The manual, which was in the equipment room and available to all personnel, contained the following notation on page 23:

'NOTE: Should the machine fail to stop, pull main circuit breaker. DO NOT restart machine until malfunction is located and corrected.' ¹

Although Mr. Munoz had a general idea as to the location and use of the main circuit breaker, he testified that he was not shown by his employer where the circuit breaker was located, nor was he instructed in its use.

It is North Park's contention that the failure of Sears to train its employee in the proper operation of the chiller unit was negligence as a matter of law. For this reason, they claim that the judgment below should be reversed and judgment entered for North Park, or in the alternative, that a new trial should be granted.

Sears contends that the issue on this appeal is whether Sears committed any act or omission of negligence which was a proximate cause of the damage in question.

A proximate cause of damage is that cause which sets in motion the chain of circumstances leading up to the damage and has been defined as that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the result complained of and without which the result would not have occurred. New York Central R.R. Co. v. Cavinder (1965), 141 Ind.App. 42, 211 N.E.2d 502; Moran v. Poledor (1926), 84 Ind.App. 266, 151 N.E. 140.

Here, North Park contends that Sears failed to train their employees, and that that failure was the proximate cause of the damage done to the chiller unit. However, it is not shown how Sears could have trained their employees so as to avoid the damage to the chiller unit.

There is sufficient evidence in the record from which the jury could find that any such alleged negligence was not the proximate cause of the damage.

It was stipulated that the pulling of the main circuit breaker would have prevented the damage. That was not, however, the usual or the recommended procedure in the day-to-day operation of the unit. While the manufacturer's manual indicated that the pulling of the main circuit breaker was the required action in the event certain problems developed, there is no indication in the manual as to how to determine that a problem does in fact exist. The only instruction in the manual is to the effect that if the unit fails to stop when the stop button is pushed, then the main circuit breaker should be pulled until the problem is corrected.

The evidence is uncontradicted that the stop light came on when the stop button was pushed, and that the machine winddown noise was heard. Further, Mr. Munoz was pushed, and that the machine wind-down stopped when he heard the circulating pumps turn off a short time later. There is evidence that this is what should have happened under normal operating conditions.

Mr. Erhardt, the Mechanical Engineering Supervisor for the Midwest Territory of Sears, testified that the wind-down noise would be heard, and the red stop light would come on, even if there was a malfunction in the system such as occurred here.

The record does not disclose any method by which the operator could discover the faulty switch in this case, so as to prevent the damage that occurred here.

North Park argues that Sears has stipulated that the chiller unit did not stop operating on the night of June 7, 1971, and should be bound by that stipulation. A careful reading of the stipulation discloses that Sears conceded only that the machine operated at some point after the shutdown procedure and caused the damage. They did not stipulate that the unit continued operating at the time of shut down, or that if it was operating, such defect would be discoverable by the operator of the unit. At most, Sears stipulated that a switch failed to disengage, but from the expert testimony it is clear that such stipulation does not necessarily contradict the testimony of Mr. Munoz.

It is clear from the above that...