Northwestern Nat. Ins. Co. v. Raid Quarries Corp., 2--57449

• Decision Date: 19 January 1977
• Docket Number: No. 2--57449,2--57449
• Citation: 249 N.W.2d 640
• Parties: NORTHWESTERN NATIONAL INSURANCE COMPANY and Cady Insurance Agency, Appellants, v. RAID QUARRIES CORPORATION et al., Appellees.
• Court: Iowa Supreme Court

Page 640

249 N.W.2d 640

NORTHWESTERN NATIONAL INSURANCE COMPANY and Cady Insurance Agency, Appellants, v. RAID QUARRIES CORPORATION et al., Appellees.

No. 2--57449.

Supreme Court of Iowa.

Jan. 19, 1977.

Hirsch, Wright, Link & Adams, by Gene R. Krekel, Burlington, for appellants.

Dailey, Dailey, Ruther, Bauer & Schulte, by John Dailey and David A. Hirsch, Burlington, for appellees Raid Quarries Corp. and Jack A. Schroder Co., Inc.

C. R. S. Anderson, Centerville, Herrick, Langdon, Belin, Harris, Langdon & Helmick by Herschel G. Langdon, Des Moines, and Cray, Walter, Cray & Loeschen, Burlington, for appellee Iowa Southern Utilities Co.

Heard by MOORE, C.J., and RAWLINGS, LeGRAND, UHLENHOPP, and REYNOLDSON, JJ.

RAWLINGS, Justice.

Law action by plaintiffs, Cady Insurance Agency (Cady) and its insurer, Northwestern National Insurance Company (Northwestern), against defendants, Iowa Southern Utilities Company (ISU), Raid Quarries Corporation and Jack A. Schroder Company, Inc. (Raid-Schroder), for damages caused by a building fire allegedly resulting from defendants' negligence. Trial to the court resulted in an adjudication adverse to plaintiffs and they appeal. We affirm.

In October, 1969, Raid-Schroder entered into an agreement with the State of Iowa for excavation and grading work by the former in connection with a Highway 534 construction project.

November 6, 1969, Raid-Schroder's employee drove a bulldozer over a primary gas regulator pit in Burlington thereby damaging the mechanism and causing an overpressure condition in the low pressure distribution system there operated by ISU. Cady was thereby served.

Within a few hours the Burlington Fire Department received a total of 77 alarms. Fire Chief Mark Zaiser opined all alarm-related fires were caused by the aforementioned overpressure condition.

No fire immediately ensued at the Cady building. However, Charles Rucker and Louis Fischer, working at the Cady office, testified they then heard a 'hissing noise' in an overhead furnace. In response to cautionary instructions aired over local radio they turned off the gas at a downstairs meter. As stated by these witnesses, the hissing stopped immediately.

November 7, 1969, two employees from ISU turned on the gas and relit the furnance. Rucker and Fischer testified it was thereafter unusually warm in the Cady office, but both also conceded it was warm outside. Fischer said the office cooled down after he readjusted the thermostat.

November 8, 1969, an early morning fire substantially damaged Cady's building.

Plaintiffs and 48 other parties brought action against these defendants. In all other cases the damage-causing fires occurred November 6, 1969. In count one of all petitions, the parties alleged specific negligence on the part of both defendants. In addition plaintiffs Cady and Northwestern pled these specifications of negligence against ISU:

'(m) In failing to properly inspect the gas pressure regulator, the termperature limit control and the gas control valve prior to relighting the pilot light of the furnace in the Cady Insurance Agency.

'(n) In failing to properly replace the sheet metal cover over the gas control valve and burner manifold assembly after relighting the pilot light in the furnace.

'(o) In failing to inspect the furnace in the Cady Insurance Agency prior to relighting when Iowa Southern Utilities Company knew or had reason to know that said furnace had been damaged by the gas pressure surge.'

These plaintiffs also sought relief under the res ipsa loquitur and strict liability doctrines.

Trial court concluded defendants' concurrent negligence proximately caused all the November 6 fires. Significantly, however, the court found plaintiffs Cady and Northwestern failed to establish a requisite causal connection between defendants' alleged negligent acts and the November 8 Cady fire. Trial court also denied plaintiffs recovery under res ipsa loquitur and strict liability. As aforesaid, plaintiffs' appeal followed.

They here contend trial court erred in (1) finding plaintiffs failed to establish specific negligence-related proximate cause; (2) concluding plaintiffs were not entitled to recover under the doctrine of res ipsa loquitur; and (3) holding the strict liability theory inapplicable.

I. SPECIFIC NEGLIGENCE--PROXIMATE CAUSE.

This law action is reviewed on errors assigned. Trial court's findings have the effect of a jury verdict. If supported by substantial evidence they are binding on us and will not be disturbed. Furthermore, the evidence is viewed in a light most favorable to the judgment and in case of ambiguity we construe to uphold rather than defeat it. See Nora Springs Cooperative Company v. Brandau, 247 N.W.2d 744 (Iowa 1976); Hayes v. Hettinga, 228 N.W.2d 181, 182 (Iowa 1975); Iowa R.Civ.P. 344(f)(1). But we are not bound by trial court's determinations of law. See Nora Springs Cooperative Company v. Brandau, supra; Sand Seed Service, Inc. v. Bainbridge, 246 N.W.2d 911 (Iowa 1976); Whewell v. Dobson, 227 N.W.2d 115, 117 (Iowa 1975). And this court will neither weigh the evidence nor pass on credibility of witnesses. See Whewell v. Dobson, supra; DeYarman v. State, 226 N.W.2d 26, 27 (Iowa 1975).

Referring to proximate cause: 'The actor's negligent conduct is a legal cause of harm to another if (a) his conduct is a substantial factor in bringing about the harm, and (b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm.' McCleeary v. Wirtz, 222 N.W.2d 409, 413 (Iowa 1974). See also 57 Am.Jur.2d Negligence, § 147.

Furthermore, the instrumentality which caused the involved fire must be established before a causal connection can be made regarding any alleged negligent act and in this the burden of proof was upon plaintiffs. See Grings v. Great Plains Gas Co., 260 Iowa 1309, 1315, 152 N.W.2d 540 (1967); Rauch v. Des Moines Elec. Co., 206 Iowa 309, 312, 218 N.W. 340 (1928); Iowa R.Civ.P. 344(f)(5); 1 Jones on Evidence, § 5:6 (Gard 6th ed. 1972); 57 Am.Jur.2d, Negligence, § 147; 38 C.J.S. Gas § 47c(1), at 745. As summarized by Prosser, The Law of Torts, § 41 at 241 (4th ed. 1971):

'He must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result. A mere possibility of such causation is not enough; * * *.'

It is also understood that even though negligence be established the existence of proximate cause does not necessarily follow. See DeYarman v. State, 226 N.W.2d at 28.

Of course, proof of counsal connection may be by either direct or circumstantial evidence but in event the latter is, as here, solely relied upon, 'it must be sufficient to make the theory asserted reasonably probable, not merely possible, and more probable than any other theory based on such evidence; however, it is generally for the trier of fact to say whether circumstantial evidence meets this test.' Wiley v. United Fire & Casualty Company, 220 N.W.2d 635 (Iowa 1974). See also Rauch v. Des Moines Elec. Co., 206 Iowa at 312--313, 218 N.W. 340.

Noticeably, expert testimony establishing a requisite causal connection is here absent. Had such evidence been presented it could have been particularly helpful in supplying the negligence factor and necessary causation link. In fact, this is probably a case in which both tort and causal connection essentially required foundational proof by presentation of expert opinion testimony. See 2 Harper and James, The Law of Torts, § 20.2, at 1116--1119 (1956); cf. McCleeary v. Wirtz, supra. Compare Winter v. Honeggers' & Co., Inc., 215 N.W.2d 316, 323 (Iowa 1974).

Plaintiffs assert, however, the testimony with respect to origin of the fire, though circumstantial, sufficed to remove such issue from the realm of speculation and amply supported a finding that defendants' negligence was a proimate cause of the fire. We are not so persuaded.

In essence, trial court correctly held proximate cause could not be inferred from mere happening of the fire. See Ellingson v. Kramer, 255 Iowa 1257, 1262--1363, 125 N.W.2d 777 (1964). See generally Trimbo v. Minnesota Valley National Gas Company, 260 Minn. 386, 110 N.W.2d 168 (1961); 26 Am.Jur.2d, Electricity, Gas, and Steam, §§ 224--225.

Trial court also found:

'There was no testimony from any witness that the furnace was in any manner malfunctioning, and there was no evidence whatever as to how or in what manner the furnance was relit other than two people from Iowa Southern Utilities Company using a ladder raised the false ceiling and relit the furnace and left. * * *

'* * * Certainly, the mere happening of the fire does not establish a causal connection * * *.'

This finding is adequately supported by the record.

Under existing circumstances, we now conclude no evidence was adduced disclosing (1) the November 6, 1969, bulldozer incident was a proximate cause of the Cady fire two days later or (2) relighting of the furnace was a proximate cause of such conflagration. Proximate cause was not established as a matter of law.

Plaintiffs' first assigned issue is without merit.

II. RES IPSA LOQUITUR.

In an apparent effort to bridge the causation gap, plaintiffs invoke the res ipsa loquitur doctrine.

At the outset it is well settled this precept may not be applied in aid of asserted specific negligence. See Eaves v. City of Ottumwa, 240 Iowa 956, 972, 38 N.W.2d 761 (1949).

Also, as articulated in Palleson v. Jewell Cooperative Elevator, 219 N.W.2d 8, 13 (Iowa 1974):

'The doctrine of res ipsa loquitur is only a rule of evidence, not of substantive tort law. Wiles v. Myerly, 210 N.W.2d 619, 624 (Iowa 1973).

'Under this doctrine, where 1) injury is caused by an instrumentality under the exclusive control of defendant, and 2) the occurrence is such as in the ordinary course of things would not happen if reasonable care had...