Northwest States Utilities Co. v. Brouilette, 1960

CourtUnited States State Supreme Court of Wyoming
Citation51 Wyo. 132,65 P.2d 223
Docket Number1960
PartiesNORTHWEST STATES UTILITIES COMPANY v. BROUILETTE
Decision Date23 February 1937

Petition for Rehearing denied July 6, 1937, Reported at: 51 Wyo. 132 at 166.

ERROR to the District Court, Sheridan County; JAMES H. BURGESS Judge.

Action by Weldon Brouilette against the Northwest States Utilities Company. Judgment for plaintiff, and defendant brings error. Petition for rehearing denied July 6, 1937. See 69 P.2d 623.

Judgment affirmed.

For the plaintiff in error, there was a brief by C. A. Kutcher of Sheridan, Wyoming.

The plaintiff in error challenged the sufficiency of the evidence to sustain the verdict and judgment: (1) by a motion for a directed verdict at the conclusion of plaintiff's evidence; (2) by a motion for a directed verdict at the conclusion of all the evidence; (3) by a motion for judgment notwithstanding the verdict; and (4) by a motion for a new trial, containing the specification that the verdict is not sustained by sufficient evidence and is contrary to law. The general allegation of negligence in plaintiff's petition was superseded by his specific charge of negligence. Coal Mining Company v. Stanko, 22 Wyo. 110, 138 P. 182. So that the plaintiff must recover, if at all, upon proof of specific negligence. A gas company is not an insurer and is only liable for its negligence. 28 C. J. 590. Negligence is never presumed. 45 C. J. 1148, 1267. It must use reasonable care to maintain its equipment. 12 R. C. L. 908, 25 A. L. R 272. Rules concerning sufficiency of evidence are set forth in 45 C. J. 1265, 1272. An inference cannot be based on another inference. Wright v. Conway, 34 Wyo. 1, 242 P. 1107; Martel v. Hall Oil Co., (Wyo.) 253 P. 862; Rosson v. Hylton, (Wyo.) 22 P.2d 195; Tisthammer v. Union Pac. Ry. Co., (Wyo.) 286 P. 377; McFarland v. Ref. Co., 60 L.Ed. 899; Ry. Company v Henderson, 73 L.Ed. 884; 2 R. C. L. 197. The general rules have been applied in St. Marys Gas Co. v. Brodbeck, (Ohio) 151 N.E. 323; Woodburn v. Union Light Power Co., (Ky.) 174 S.W. 730; Union Investment Co. v. Gas Company, (Cal.) 141 P. 807; National Roofing Co. v. Telephone Co., (N. J.) 137 A. 409, and in numerous other cases cited in our brief. Defendant was entitled to a directed verdict. 66 A. L. R. 1536. There was no sufficient proof of notice to the company. 45 C. J. 1069; Davis v. Freisheimer, (Mont.) 219 P. 236. There was a failure of proof on the part of plaintiff. Sec. 89-1737, R. S. 1931. Plaintiff's cause of action was not predicated on negligence requiring notice of a leak, as it is not alleged that defendant had reasonable notice. 45 C. J. 1135; 45 C. J. 1069; Davis v. Freisheimer, supra. The trial court permitted plaintiff to recover on a different theory from that alleged in his petition. 45 C. J. 1133. There was a failure of proof. 14 Ency. P. & P. 342; 22 Ency. P. & P. 568; Union Pac. Ry. Co. v. Buck, (Kan.) 44 P. 904. The question was properly raised by a specification that the evidence is insufficient in law to support the verdict. Forsell v. Copper Co., (Mont.) 100 P. 218. The court erred in overruling defendant's motion for a new trial. Hall Oil Co. v. Barquin, (Wyo.) 237 P. 255. The court erred in admitting testimony of medical experts over the objection of defendant. The case differs from that of Acme Cement Company v. Westman, (Wyo.) 122 P. 89; 22 C. J. 267, 268, 269, 671; 11 R. C. L. 613; 21 L. R. A. (N. S.) 826. The court erred in permitting testimony concerning experiments made with smoke prior to the trial, to show the direction of air currents at the time of such experiments. The court will take judicial notice of the laws of physics. 23 C. J. 142; 22 C. J. 758, 759. The court erred in giving instructions numbered 1 and 8. 64 C. J. 704; 11 Ency. P. & P. 158. The court erred in refusing to give defendant's requested instruction No. 6. The court erred in refusing to give instruction D. requested by defendant. 11 Ency. P. & P. 213. The court erred in refusing to submit to the jury all of the interrogatories requested by defendant and in giving interrogatories numbered 2 and 3.

For the defendant in error, there was a brief by R. E. McNally and John G. Hutton of Sheridan, and E. E. Enterline and Madge Enterline of Casper, and oral arguments by Messrs. Enterline and McNally.

We are in harmony with the principles enunciated in the quotations from 45 C. J. at page 19 of defendant's brief. We are also in full accord with the doctrine of the Wyoming cases cited, that an inference cannot be based on another inference, but we are unable to see the application of those cases to the facts in the present case. We have carefully reviewed other cases cited by defendant and we are likewise unable to harmonize them with the facts in the present case. The record shows that the verdict is supported by sufficient evidence. It has been held by this court that a prima facie case made by plaintiff must be met by substantial evidence, and that such evidence must be credible; also that the court's right to declare rules of law applicable to such cases does not include the right to determine the weight of facts and the credibility of witnesses Hildebrand v. R. R., 45 Wyo. 175; Worth v. Worth, (Wyo.) 49 P.2d 649; Barham v. Whiting, (Cal.) 291 P. 173; Mah See v. Insurance Company, (Cal.) 213 P. 42. On the question of conflicting theories and the right of a jury to choose between them we cite: Fike v. Peters, (Okla.) 52 P.2d 700; Terrell v. Johnson, 272 P. 821; Gas Company v. Jopling, 247 P. 69. It was the duty of defendant to respond promptly upon being notified that gas was escaping in the basement. McClure v. Hoopeston Gas Co., 25 A. L. R. 250. Plaintiff's charge of negligence proven. Kuhn v. McKay, 7 Wyo. 42; C. B. & Q. R. Co. v. Pollock, (Wyo.) 93 P. 847; Oviatt v. Hohnholts, (Wyo.) 299 P. 1037. Defendant controlled the entire gas equipment in the building, except as hereinabove mentioned. McCloskey v. Koplar, (Mo.) 46 S.W.2d 557; Hilson v. Gas Company, (Cal.) 21 P.2d 662. The rule with respect to directed verdicts is clearly established by decisions of this court. Marshall v. Rugg, 6 Wyo. 279; Peterson v. Johnson, (Wyo.) 28 P.2d 487; Kumor v. Insurance Company, (Wyo.) 33 P.2d 916; Willis v. Willis, (Wyo.) 49 P.2d 670; Fidelity & Guaranty Company v. Cook, 45 Wyo. 353; Collison v. Anderson, 37 Wyo. 275; Hester v. Coliseum Motor Co., 41 Wyo. 345. The weight of authority does not depend upon the number of cases but upon the reasoning of the cases. MacFarlane v. Railway Officials, 5 Wyo. 126. Statements made by an injured person to a physician for the purpose of treatment are excepted from the rule excluding hearsay. Reed v. Cab Company, (Ore.) 67 A. L. R. 11; Kraettli v. Trans. Co., (Wash.) 6 P.2d 609; Acme Company v. Westman, 20 Wyo. 143; Orth, et al. v. Scott, 49 P.2d 111. Plaintiff's testimony as to his condition might be received, although contrary to the opinion of experts. U. S. v. Gower, 50 F.2d 370; U. S. v. Monger, 70 F.2d 362. As to experiments, the rule seems to be that the conditions need not be identical with those existing at the time of the occurrence, if there is a substantial similarity. Amsbary v. Light Company, (Wash.) 139 P. 46; State v. Allison, (Mo.) 85 A. L. R. 471. As to complaints made to the giving of instructions, we believe that an examination thereof will disclose that such complaints are without merit. The court's refusal to give requested interrogatories was a matter within its discretion, and the judgment will not be reversed unless there be a clear abuse of discretion. Irrigation Company v. Laporte, (Wyo.) 182 P. 485; Opitz v. Town of Newcastle, (Wyo.) 249 P. 799. The court would have been fully authorized in applying the doctrine of res ipsa loquitur. 20 C. J. 380; 40 R. C. L. 905; Kleinman v. Laundry Co., (Minn.) 186 N.W. 123; McClure v. Company, 25 A. L. R. 250; Dierks Lumber & Tool Co. v. Brown, 19 F.2d 732; Zichler v. Public Service Co., (Mo.) 59 S.W.2d 654. We believe that the court and jury arrived at a proper conclusion and that the judgment should be affirmed.

C. A. Kutcher in reply.

Opposing counsel have made no sufficient answer to defendant's contentions as to their falure of proof under their pleadings. They still insist that their general allegation of negligence opened the door wide for recovery upon any ground even in the face of the rule announced in Coal Mining Company v. Stanko, 22 Wyo. 110; 45 C. J. 133, and the court's instruction numbered 2. Plaintiff's evidence was in substance that an explosion occurred, which from its nature and effects could have been caused by either natural gas or coal gas. There was undisputed testimony by an expert that natural gas escaping does not produce headaches and nausea, but coal gas does, and that the symptoms of plaintiff's witnesses indicated coal gas containing carbon monoxide, which natural gas does not contain if unburned. While the jury ordinarily are the judges of the weight of the evidence and the credibility of witnesses, acting within reason, there is no rule which permits them to add anything to the evidence or supply missing facts by assumption, guessing and speculation, or to arbitrarily disregard and ignore unimpeached and uncontradicted testimony. To permit a jury to arbitrarily ignore the defendant's evidence is just as bad as to allow a jury to give a verdict without any evidence at all. If counsel are confident that plaintiff's evidence clearly proved negligence of defendant, why do they invoke the rule of res ipsa loquitur? The rule does not apply unless their evidence is otherwise insufficient. A specific charge supersedes a general charge and prevents a recovery. 45 C. J. 1133. The doctrine of res ipsa loquitur does not apply where specific acts of negligence are alleged. Acme...

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