John Rooff & Sons, Inc. v. Winterbottom, 49203

• Decision Date: 12 November 1957
• Docket Number: No. 49203,49203
• Citation: 249 Iowa 122,86 N.W.2d 131
• Parties: JOHN ROOFF & SONS, Inc., Waterloo, Iowa, and Iowa corporation, Appellee, v. Ralph F. WINTERBOTTOM, d/b/a Heating & Cooling Supply Co., Appellant.
• Court: Iowa Supreme Court

Page 131

86 N.W.2d 131

249 Iowa 122

JOHN ROOFF & SONS, Inc., Waterloo, Iowa, and Iowa corporation, Appellee, v. Ralph F. WINTERBOTTOM, d/b/a Heating & Cooling Supply Co., Appellant.

No. 49203.

Supreme Court of Iowa.

Nov. 12, 1957.

Kennedy, Kepford, Kelsen & Balch, Waterloo, for appellant.

Pike, Sias, Butler & Hoxie, and Swisher, Cohrt & Swisher, Waterloo, for appellee.

GARFIELD, Justice.

Plaintiff sued defendant at law upon an account stated for the balance owing plaintiff for labor and material furnished defendant in the construction of a building and other improvements. The correctness of plaintiff's claim is conceded. Defendant pleaded in his answer a setoff and, in two counts, a counterclaim for negligently causing the destruction by fire of a building owned by him. For practical purposes the setoff pleaded in the answer and the cause asserted in count 1 of the counterclaim are the same and may be so considered. In count 2 of the counterclaim defendant relied upon the doctrine of res ipsa loquitur.

Plaintiff offered no evidence upon the trial. At the close of evidence for defendant the trial court directed a verdict against him on his setoff and counterclaim. From judgment thereon he has appealed.

I. Plaintiff's motion to dismiss the appeal based on the calim defendant's assignment of errors does not comply with rule 344, Rules of Civil Procedure, 58 I.C.A., was ordered submitted with the appeal. It is true defendant's original brief does not literally comply with the rule. For one thing references to the page and line of the record as required by rule 344(a)(4) (First) are omitted. But defendant filed an amendment to his brief which fully complies with the rule. We have no difficulty in understanding defendant's complaints. Evidently plaintiff's counsel had no such difficulty since its brief, filed before its motion to dismiss was made, fully argues the matters on which defendant relies.

While careful compliance with our rules is the only safe course we think there was not such lack of compliance here as to warrant dismissal of the appeal. The motion to dismiss is therefore overruled. Our conclusion is fully supported by Agans v. General Mills, Inc., 242 Iowa 978, 980, 48 N.W.2d 242, 243; Carlson v. Bankers Trust Co., 242 Iowa 1207, 1210-1211, 50 N.W.2d 1, 3-4; Hassebroch v. Weaver Construction Co., 246 Iowa 622, 624, 67 N.W.2d 549, 551.

In its brief on the motion plaintiff has cited two decisions filed since our Rules of Procedure took effect: Price v. McNeill, 237 Iowa 1120, 24 N.W.2d 464, and Patterson v. Wuestenberg, 239 Iowa 658, 32 N.W.2d 209. Both point out there was lack of compliance with our rules in certain respects but each appeal was considered on its merits.

II. Plaintiff is engaged in general construction. Defendant's business is heating and cooling. Defendant had a warehouse about 40 by 60 feet in size built of corrugated metal. Twelve feet westerly from this building it had another warehouse built of concrete blocks. Defendant orally engaged plaintiff to roof over this space between the two buildings. Leo Rooff, superintendent in charge of the work for plaintiff, and five of its workmen commenced the job on June 24, 1955. To provide places to anchor supports for the new roof one of plainitff's men with an electric torch put at least five holes in the top of the corrugated siding of the metal building, just below the roof. While this torch was being so used fire broke out which virtually destroyed the building and seriously damaged its contents. Defendant claims plaintiff's men negligently caused the fire.

Defendant's answer and each count of his counterclaim allege 'employees of plaintiff so * * * negligently operated an electric cutting or welding torch as to cause said building * * * to catch fire * * *.' As stated, count 2 of the counterclaim also asserts defendant relies upon the doctrine of res ipsa loquitur. The trial court held there was insufficient proof to support the above allegation of negligence and, on the res ipsa issue, there was insufficient evidence of the foundation facts which give rise to the doctrine. We are unable to agree with either conclusion.

Of course it is our duty to consider the evidence in the light most favorable to defendant. Jasper v. Chicago G. W. R. Co., 248 Iowa ----, 84 N.W.2d 21, 23, and citation.

The evidence as to the cause of the fire is largely circumstantial. We are committed to the rule that in such cases the evidence must be such as to make plaintiff's (defendant's here) theory of causation reasonably probable, not merely possible, and more probable than any other theory based on such evidence. It is not necessary for the testimony to be so clear as to exclude every other possible theory. Roller v. Independent Silo Co., 242 Iowa 1277, 1285, 49 N.W.2d 838, 843, and citations; Soreide v. Vilas & Co., 247 Iowa 1139, 1143, 78 N.W.2d 41, 43-44, and citations.

Plainitff argues that a finding it is liable for the fire could only be made by raising an inference on an inference. The fallacy of such an argument is pointed out in Soreide v. Vilas & Co., supra, and authorities cited at page 1144 of 247 Iowa, at page 44 of 78 N.W.2d.

III. Since there was no attack upon defendant's pleadings all legal intendments are to be liberally indulged in support of them. Pixler v. Clemens, 195 Iowa 529, 533, 191 N.W. 375; Watson v. Des Moines R. Co., 217 Iowa 1194, 1199, 251 N.W. 31. See, also, 71 C.J.S. Pleading § 69b(1)(b), pages 179-180; 41 Am.Jur., Pleading, section 67.

The question is argued whether the above quoted allegation in defendant's pleadings charges general negligence, as defendant asserts, or specific negligence, as plaintiff maintains. We find it unnecessary to decide the question. In determining the sufficiency of the evidence in support of count 1 of the counterclaim it may be assumed defendant has charged a specific act of negligence, as plaintiff argues. We will say now, however (perhaps out of its logical order), the directed verdict against defendant on count 2 of his counterclaim, which invoked the res ipsa doctrine, cannot be upheld here on the ground that defendant pleaded specific, not general negligence.

We have held many times that a litigant who pleads only specific negligence may not invoke the doctrine of res ipsa loquitur. See Orr v. Des Moines Elec. Light Co., 207 Iowa 1149, 1158, 222 N.W. 560; Sutcliffe v. Fort Dodge Gas & Electric Co., 218 Iowa 1386, 1393-1394, 257 N.W. 406; Pearson v. Butts, 224 Iowa 376, 379, 276 N.W. 65; Shettler v. Farmers Light & Power Co., 233 Iowa 1243, 1246, 11 N.W.2d 394, 396, and citations.

Plaintiff urged six grounds in support of its motion to direct a verdict against defendant on count 2 of his counterclaim. None of them asserts that defendant pleaded specific negligence. We are committed to the rule that a directed verdict will not be upheld on a ground not asserted in the trial court. Stickleman v. Synhorst, 243 Iowa 872, 876, 52 N.W.2d 504, 507. See, also, Gross v. Hocker, 243 Iowa 291, 296, 51 N.W.2d 466, 468-469, and citations; American Mutual Liability Ins. Co. v. State Automobile Ins. Ass'n, 246 Iowa 1294, 1303, 72 N.W.2d 88, 93. We may therefore properly assume the allegations of count 2 of defendant's counterclaim are sufficient to invoke the res ipsa doctrine.

IV. In considering whether there is evidence to support the allegation of negligence in count 1 of the counterclaim it is proper to consider the circumstances under which plaintiff's workmen operated the electric torch. The authorities agree that in determining whether there is negligence in a particular case the circumstances of that case are to be considered. Perhaps the most common definition of negligence is failure to exercise the care of an ordinarily prudent person under the circumstances. It may be conceded that if plaintiff had been using this torch under different circumstances--say in a vacant, fireproof building--it would not have been negligent in so doing. But it does not follow it was not negligent in using its torch on this building under the circumstances shown by the evidence.

The building which burned was only partly enclosed. It was entirely open at one end and there was a large open space on another side. It had only a dirt floor. There were clumps of dry grass in cracks of the concrete footing. Large quantities of inflammable, fiber pipe known as Orangeburg were stored in the warehouse. There were three piles of this--one 2 1/2 to 3 feet from the westerly end, another near the opposite end, and the third near the center. There were also cardboard cartons of merchandise.

Leo Rooff inspected the inside of the building before work commenced. Some cardboard cartons were moved back from near the wall where the cutting was to be done. Plaintiff's men brought a fire extinguisher with them but left it in a truck across the street rather than where it would be readily available. Nor was water immediately at hand. The man who operated the torch wore a helmet and special gloves of rubber and leather.

Soon after use of the torch began, in cutting the first or second hole, the operator set fire to a bird's nest underneath the roof. He put out that fire with his gloved hand but continued to cut more holes with the torch without first taking further precautions such as to obtain the fire extinguisher or water for immediate use. Leo Rooff went to defendant's office, 15 to 20 feet south of the building in question, to ask if defendant had a fire extinguisher. When told defendant had none, Rooff obtained a pail of water to use if another fire should break out. While returning from the office with this water Rooff observed the fire which destroyed the building. He soon returned to defendant's office, said 'We have a grass fire' and asked an employee of defendant to call the fire department. Between the time the bird's nest caught fire and the start of the destructive fire three or four holes were cut...