Ong v. Pepsi Cola Metropolitan Bottling Co., Inc.
| Decision Date | 28 November 1972 |
| Docket Number | No. 1,CA-CIV,1 |
| Citation | 503 P.2d 415,18 Ariz.App. 457 |
| Parties | Arnold ONG, a married man and Virginia Ong, a widow dba Gene's Modern Market, Appellants, v. PEPSI COLA METROPOLITAN BOTTLING CO., INC., a corporation, Appellee. 1566. |
| Court | Arizona Court of Appeals |
O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears by Harry J. Cavanagh, George H. Mitchell, Phoenix, for appellee.
This is an appeal from a judgment, after a jury trial, in favor of defendant Pepsi Cola Metropolitan Bottling Co., Inc., and against the plaintiffs, Arnold Ong and Virginia Ong, his mother. The parties will be referred to as they appeared in the trial court.
The facts viewed in a light most favorable to sustaining the judgment are as follows:
Plaintiffs are owners of a supermarket in Glendale, Arizona, known as Gene's Modern Market. The market was operated by plaintiff, Arnold Ong, his wife, Louise Ong, and a few other employees. In January 1967, the defendant offered to install a visual Pepsi Cola merchandising machine (hereinafter referred to as 'machine') in plaintiffs' store. There was to be no rental or installation costs and plaintiffs were to receive the initial stock of Pepsi Cola free of charge. Plaintiffs were only obligated to pay for the additional Pepsi Cola used to restock the machine.
Plaintiffs accepted defendant's offer and the machine was installed by defendant in February 1967. The installation was done by defendant's employee, Mr. Fred Duran. The machine was placed at the end of a gondola which was located across from a checkout counter. The electrical outlet closest to the machine was located at this checkout counter. Mr. Duran found that the molded cable which was attached to the machine was not long enough to reach the outlet at the checkout counter. In order to effectuate the installation, he cut off the molded three-prong male plug, spliced on an additional length of flexible cord, brought the cord over the top of the machine, wrapped the extension cord around a metal conduit which extended from the ceiling and made a second splice of the extension cord to the molded plug. To complete the installation, Duran placed a two-prong adapter on the three-prong plug of the machine and inserted it in the top outlet of the two-outlet receptacle at the bottom of the metal conduit located at the checkout counter (hereinafter the checkout counter in question will be referred to as 'counter 3').
A few weeks after the machine was installed, Louise Ong complained that she smelled smoke. At the time of the incident, Louise Ong was working at checkout counter 2 because counter 3 was used only when business was heavy. She and Mr. Ong looked for the source of the smell and discovered it to be emanating from the machine cord, approximately where the second splice was located. Plaintiff saw that the area of the splice was smoldering and smoking and therefore promptly pulled the plug. Plaintiffs did not call defendant because their deliveryman was due the next day. The machine was left unplugged overnight.
The following day, plaintiffs related the smoking incident to defendant's route manager, Bob Warren, who happened to accompany the deliveryman to plaintiffs' store. Mr. Warren telephoned defendant and a repairman, Jack Woodall, was sent out. Mr. Woodall found that the area of splice two was brittle as a result of the smoldering. He cut off this piece of the cord, attached a new plug to the remaining cord and again plugged the cord into the top outlet at counter 3. He checked the machine to make sure it was operational and then left the store.
The only additional evidence offered, relating to trouble with the machine prior to the fire, was testimony by an employee of On 13 April 1967, a fire occurred, originating in an area near checkout stand number 3. On 23 June 1967, plaintiffs settled their claim against their insurance company for $68,000.
an insurance adjusting company who had taken a statement from the plaintiff, Arnold Ong. The statement contained language to the effect that one night, some time after the smoking incident and prior to the fire, Louise Ong told her husband that one of the cords at counter 3 had felt warm to her. Mr. Ong immediately drove to the store, checked all the cords and found them to be cool.
At trial, there were two specific opinions offered as to the cause of the fire. Plaintiffs' witness, John Senne, a professional accident and fire investigator, testified to the effect that the fire could have resulted from a faulty electrical connection at the point of splicing. The other opinion was offered by defendant's witness, Dr. Nabours, an electrical engineer. He testified that the fire could have been caused by a dislodging or tipping of the machine plug out of the receptacle. He also testified that use of an octopus plug in the receptacle could have produced the fire by igniting nearby papers, which plaintiffs admitted were present between the receptacle and cash register at counter 3.
The jury returned a verdict against the plaintiffs and in favor of the defendant. Thereafter, plaintiffs timely made a motion for a new trial, which motion was denied and this appeal follows.
The plaintiffs present numerous questions and raise several issues for our review. We will deal with the questions presented which we deem dispositive of this appeal.
Prior to determining this appeal on the merits, we will deal with defendant's argument that the instructions to the jury, challenged on appeal by plaintiffs, should not be considered by this Court because of plaintiffs' failure to set forth each challenged instruction in haec verba in the appendix to the opening brief as required by Rule 5(b) 10 of the Rules of the Supreme Court, as amended, 17 A.R.S. which states:
The Supreme Court and this Court have held on numerous occasions that under such circumstances the reviewing court has no obligation to consider the alleged instructional errors. State v. Hill, 11 Ariz.App. 230, 463 P.2d 125 (1969); State v. Madden, 104 Ariz. 111, 449 P.2d 39 (1969); Zakroff v. May, 8 Ariz.App. 101, 443 P.2d 916 (1968).
The instant litigation, however, presents a problem similar to the one faced by this Court in Hoeffel v. Campbell, 16 Ariz.App. 577, 494 P.2d 777, 778 (1972), wherein we stated:
In the case at bar, plaintiffs have made a motion, which motion has been granted by this Court, allowing plaintiffs to include the questioned instructions as an appendix to the reply brief. We will therefore proceed to consider the alleged instructional errors.
The initial question posed by plaintiffs is whether the trial court committed reversible error by instructing the jury on Arnold Ong's negligence as a matter of law resulting from a violation of an ordinance. The instruction, as given by the trial court, is set forth as follows:
'It may become necessary for you to consider in your deliberations certain laws of the City of Glendale, Arizona, which were in effect at the time of this fire in question. I will read them as follows: Section 210--21, entitled Outlet Devices: 'Outlet devices shall have a rating not less than the load to be served and shall conform to the following:
Sub-Section B. Receptacles: When connected to circuits having two or more outlets, receptacles shall conform to the following:
15-amp circuits not over 15-amp rating.
20-amp circuits, 15 or 20-amp rating.
30-amp circuits, 30-amp rating.
50-amp circuits, 50-amp rating.
Receptacles connected to circuits having different voltages, frequencies, or types of current (AC or DC) on the same premises shall be of such design that attachment plugs used on such circuits are not interchangeable.
Grounding receptacles rated at 15 or 20 amperes and installed in circuits of less than 150 volts between conductors shall be approved for use only on potentials less than 150 volts.
Grounding receptacles rated at 15 amperes and installed in circuits of 151 or 300 volts between conductors shall be approved for use only on potentials not less than 151 volts.
Receptacles rated at 15 amperes connected to 15 or 20 ampere branch circuits serving two or more outlets shall not supply a total load in excess of 12 amperes for portable appliances.'
Section 400--5, entitled Splices, Provides:
Flexible cord shall be used only in continuous lengths without splice or tab.'
Should you find that any party to this suit violated any of the foregoing laws, then that party would be negligent as a matter of law and you should then consider the issue of whether that negligence was a proximate cause of plaintiff's damage.'
The gravamen of plaintiffs' argument in regard to this instruction is based on several theories. Plaintiffs argue that there was no evidence of a...
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