Newman v. Great Shoshone & Twin Falls Water Power Co.

• Decision Date: 29 March 1916
• Parties: J. W. NEWMAN, Respondent, v. GREAT SHOSHONE AND TWIN FALLS WATER POWER COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

156 P. 111

28 Idaho 764

J. W. NEWMAN, Respondent, v. GREAT SHOSHONE AND TWIN FALLS WATER POWER COMPANY, a Corporation, Appellant

Supreme Court of Idaho

March 29, 1916

SUFFICIENCY OF EVIDENCE-NONSUIT-VARIANCE-MISCONDUCT OF JURY-CHANCE VERDICT.

1. In a civil case it is not necessary that the facts upon which the verdict is based be established beyond a reasonable doubt. It is the duty of the jury to decide according to the preponderance of the evidence and the reasonable probability of truth.

2. Held, that in this case there was substantial evidence tending to show that respondent's loss was due to appellant's negligence; that its weight and sufficiency were questions for the jury, and that the motions for nonsuit were properly denied.

3. No variance between the allegations in a pleading and the proof will be deemed to be material, unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits.

4. Where it appears that the jurors did not agree in advance to be bound, and did not consider themselves bound to render a verdict to be found by adding the amounts each thought respondent should recover and dividing the sum so found by the number of jurors, but resorted to that plan for the purpose of forming a basis of discussion, such action was not misconduct on the part of the jury, nor does it constitute a ground to set the verdict aside.

[As to misconduct of jury in respect of method of arriving at verdict, see note in 134 Am.St. 1061]

APPEAL from the District Court of the Fourth Judicial District, for Lincoln County. Hon. Chas. O. Stockslager, Judge.

Action for damages. Judgment for plaintiff. Affirmed.

Judgment of the trial court affirmed. Costs awarded to respondent.

S. H Hays and P. B. Carter, for Appellant.

The theory of the complaint is that the sides of the barn became charged with electricity; that the electricity passed into the barn setting it on fire. In the proof, the theory is that the fire started on the outside by reason of a spark or arc. This variance between the allegations and the proof misled the appellant to its prejudice in maintaining its defense upon the merits. The variance was a material one and the trial court should have sustained appellant's motion for nonsuit. (Sec. 4245, Rev. Codes; Lewis v. Utah Construction Co., 10 Idaho 214, 77 P. 336; Davidson Grocery Co. v. Johnston, 24 Idaho 336, Ann. Cas. 1915C 1129, 133 P. 929; Pomeroy, Code Remedies, p. 616; Dolbee v. Detroit etc. Ry. Co., 144 Mich. 656, 108 N.W. 99; Birmingham Ry. & Electric Co. v. Brannon, 132 Ala 431, 31 So. 523; Chitty v. St. Louis etc. Ry. Co., 148 Mo. 64, 49 S.W. 868; Pierce v. Great Falls & C. Ry. Co., 22 Mont. 445, 56 P. 867.)

The verdict in this action was arrived at by the jury impaneled in this case by a resort to the determination of chance, having agreed in advance that the quotient verdict obtained by the addition of the several amounts to which each juror thinks the party entitled and by dividing the same by the number of jurors voting should be the verdict for which judgment was rendered. (Flood v. McClure, 3 Idaho 587, 32 P. 254.)

"Courts should at all times discountenance and disapprove the resorting to any such insidious means of reaching a verdict. It is demoralizing in its tendencies and is calculated to bring the administration of justice into disrepute." ( Great Northern Ry. Co. v. Benjamin (Mont.), 149 P. 968; McDonald v. Great Northern Ry. Co., 5 Idaho 8, 12, 46 P. 766.)

Oppenheim & Hodgin and J. M. Parrish, for Respondent.

A quotient or average verdict will be upheld, if the jurors do not antecedently agree to be bound by the result of the computation, but reserve to themselves the right to dissent from it in arriving at their verdict, or if they do so agree, they subsequently discuss the question, and the court can see the verdict is really the result of deliberation and discussion. (Giffen v. City of Lewiston, 6 Idaho 231, 55 P. 545; Beakley v. Optimist Printing Co., 28 Idaho 67, 152 P. 212; 1 Hayne, New Trial & Appeal, sec. 71; 38 Cyc. 1845; Thompson, Trials, sec. 2602; Lee v. Clute, 10 Nev. 149; Florence etc. R. Co. v. Kerr (Colo.), 151 P. 439; Greeley Irr. Co. v. Von Trotha, 48 Colo. 12, 108 P. 985, 989; Colorado Springs v. Duff, 15 Colo. App. 437, 62 P. 959; Empson Packing Co. v. Vaughn, 27 Colo. 66, 59 P. 749, 752; Wiles v. Northern P. Ry. Co., 66 Wash. 337, 119 P. 810.)

The general allegations in the complaint with respect to negligence were ample, and clearly bring the case within the rule announced by this court in Younie v. Blackfoot Light & Water Co., 15 Idaho 56, 96 P. 192; Gagnon v. St. Maries Light & Power Co., 26 Idaho 87, 141 P. 88.

MORGAN, J. Sullivan, C. J., and Budge, J., concur.

OPINION

MORGAN, J.

This action was commenced by respondent in order to recover from appellant the sum of $ 1,586, in which amount, he alleged in his complaint, he was damaged by reason of the destruction of his barn and its contents, by fire, on the night of April 11, 1913, due to appellant's carelessness and negligence. It appears that the barn in question was situated in the village of Shoshone; that it was 24 feet square and 14 feet high to the eaves; that it was constructed of 2x4 timbers covered with corrugated iron sheets, or plates, and that appellant was, at the time of its destruction, engaged in the business of furnishing electricity for light and power purposes in the village of Shoshone. It is the contention of respondent, and there is substantial evidence to support it, that appellant's predecessor in interest, without his knowledge or consent, attached two electric light wires to his barn and strung them lengthwise along the east side of it and so attached them, by short brackets placed 24 feet apart and at the corners of the building; that the wires were supported but a few inches from the side and about 15 inches below the eaves of the barn; that they were loosely strung, or that through appellant's carelessness and negligence they became loose, and were maintained in such a manner that they sagged down about ten inches in the middle and to such an extent that when the wind was blowing they would strike against the side of the barn and that they rubbed and chafed against the corrugated iron until the paint was worn from the sheets, or plates, at the point of contact and the insulation upon the wires became frayed and worn away.

It appears that on the night of April 11, 1913, the wind was blowing from the east, and respondent's theory, upon which the case was presented to the trial court and jury, was that it caused the wires, which were charged with a current of electricity, to sway and rub against the sides of the barn thereby creating a short circuit and producing an arc, or flame, which ignited hay protruding through the cracks between the corrugated iron sheets, or plates, and that the fire communicated itself to and destroyed the barn and its contents.

At the conclusion of the introduction of evidence in chief, on the part of respondent, appellant moved for a nonsuit upon the ground of insufficiency of evidence to support a verdict, and at the close of the testimony upon the part of both parties this motion was renewed, and the additional ground was assigned that there was a variance between the allegations of the complaint and the proof offered by respondent. These motions were overruled and the trial resulted in a verdict and judgment in the sum of $ 1,079.80 in favor of respondent, from which judgment, and from an order denying a motion for a new trial, this appeal was taken.

Appellant's assignment of errors presents three questions for our consideration: 1. The sufficiency of the evidence to sustain the verdict and judgment; 2. Variance between the allegations of the complaint and the proof adduced by respondent; 3. The conduct of the jury in arriving at its verdict.

The evidence of the origin of the fire was entirely circumstantial. In addition to the facts heretofore set out it was shown that when it was discovered it was burning at a point near where the wires came in contact with the barn. Expert testimony was produced by respondent tending to show that the amount of electricity carried by the wires would, under the circumstances shown to have existed at the time and place in question produce a sufficient are, or flame, to ignite hay. Other expert testimony was introduced on behalf of appellant tending to show that it would not do so. Apparatus was set up in the courtroom and experiments were made by both parties, in the presence of the jury, but the results of these experiments are not disclosed in the record.

As above indicated, there was no direct evidence that the fire was caused by appellant's wires coming in contact with respondent's barn, but there was ample to show a reasonable probability that it occurred in that way.

"There is no doctrine of the law settled more firmly than the rule which authorizes issues of fact in civil cases to be determined in accordance with the preponderance or weight of the evidence. The reason of the rule no doubt is, that as between man and man, where a loss must fall upon one or the other, it is right that the law should cast it upon him who is shown to have been the cause of the loss, by proof establishing the reasonable probability of the fact. Proof beyond a doubt is not necessary in such an action." (10 R. C. L. 1012, sec. 204.)

It is said in Greenleaf on Evidence, 15th ed., sec. 13a: "It is not necessary that the minds of the jurors be freed from all doubt; it is their duty to decide in favor of the party on whose side the weight of evidence preponderates, and according to the reasonable probability of truth." (See also, Indianapolis etc. R. R....