P.N. Cedar, Inc. v. D & G Shake Co.

• Decision Date: 19 March 1986
• Docket Number: No. 15579,15579
• Citation: 110 Idaho 561,716 P.2d 1333
• Parties: P.N. CEDAR, INC. Plaintiff-Respondent, v. D & G SHAKE COMPANY, Defendant-Appellant,
• Court: Idaho Court of Appeals

Page 1333

716 P.2d 1333

110 Idaho 561

P.N. CEDAR, INC. Plaintiff-Respondent, v. D & G SHAKE COMPANY, Defendant-Appellant,

No. 15579.

Court of Appeals of Idaho.

March 19, 1986.

William J. Hines and Thomas B. Dominick, Boise, for defendant-appellant.

Anthony C. Anegon, Lewiston, for plaintiff-respondent.

SWANSTROM, Judge.

This appeal arises from the destruction by fire of a mill leased by D & G Shake Co. from P.N. Cedar, Inc. P.N. Cedar brought suit against D & G Shake and its owners-operators, seeking damages under two theories of recovery, negligence and breach of a lease agreement between the two companies. The owners-operators of D & G Shake were dismissed as parties just before trial. The jury, by special verdict, found that D & G Shake was liable for damages under both theories.

On appeal, D & G Shake raises several issues: (1) whether the court erred in allowing the jury to receive evidence of an alleged yard fire earlier on the day the mill burned, (2) whether the court erred in denying D & G Shake's motions for summary judgment, directed verdict, and judgment notwithstanding the verdict on the issue of negligence, (3) whether the court erred in allowing P.N. Cedar to recover damages for loss of the mill equipment, (4) whether the trial court erred in allowing the jury to consider the claim for lost profits and damages under the lease agreement, (5) whether the court abused its discretion in denying a motion for attorney fees and costs and (6) whether the court abused its discretion in the trial procedure followed. For reasons which follow, we vacate the judgment and remand for a new trial on the issue of damages.

The mill in question was designed to produce cedar shakes and shingles. It sat on ground owned by the Bureau of Indian Affairs (BIA). P.N. Cedar had purchased the mill from a third party and obtained a lease of the mill site from the BIA. After operating the mill for a time, Karen Schaefer, acting for P.N. Cedar, agreed to lease the mill and some of its equipment to D & G Shake. She wrote down a brief statement of certain lease conditions which John Gilroy, an owner-operator of D & G Shake, signed in behalf of his company. For a few weeks, until the mill burned, D & G Shake operated the mill. Waste materials from the manufacturing process were transported from the mill on a conveyor into a nearby burner. On the day of the fire, September 11, 1981, D & G Shake operated the mill from 7:00 a.m. to approximately 1:30 p.m. The employees then left the mill for the weekend. The mill burned to the ground between 6:00 and 7:00 p.m.

At the trial, a witness testified that he was at the mill around noon on the day it burned and observed a small fire in the mill yard approximately fifteen feet from the building. Whether this fire originated from a spark from the burner or from other causes was not made clear in the record. The man who noticed the fire testified that he informed an employee working at the mill about it. The witness said that the sprinkler system was not operating while he was at the mill. ¹ Karen Schaefer also testified that the sprinkler was not operating when she was at the mill site at 4:00 p.m. the same day. She further testified that she did not observe a fire at that time. On the other hand, D & G Shake's foreman, who had worked at the mill that day, testified that the sprinkler system was on while the mill was in operation and after the mill had been closed for the day. The foreman further testified that when the mill was shut down for the day there was no fire in the yard and the yard was "wet down." Testimony of the owner of a similar mill was also introduced. He stated that fine cedar dust can catch a spark and burn beneath the surface undetected and that a slight wind could cause it to burst into flames. To avoid this, cedar sawdust should be stirred up thoroughly to allow water to reach the bottom layer of dust. The expert further testified that, depending on the dryness of the weather and the size of the fire in the burner, a mill operator should have a sprinkler on during the work shift and sometimes after the mill has closed for the day. After hearing the evidence, the jury awarded P.N. Cedar damages of $24,293 on both the negligence and contractual claims.

I

D & G Shake contends that the trial court committed error by denying its motion in limine regarding the evidence of a yard fire at noon on the day the mill burned. D & G Shake asserts that this testimony was prejudicial and irrelevant, citing Hoffman v. Barker, 80 Idaho 372, 330 P.2d 978 (1958), for the rule that the existence of a condition prior to the time an act occurred is inadmissible. In Hoffman the Court stated:

The only ground for allowing the introduction of evidence of a condition existing some time prior to the time in issue is where there is no evidence of the actual condition at the time in question and where the condition is not a changing one but one which it might reasonably be considered would continue to exist. [Citations omitted.]

80 Idaho at 377, 330 P.2d at 980.

In the present case, there was no evidence of the actual condition of the mill and yard at the time the 6:00 p.m. fire occurred. P.N. Cedar's expert testified that a spark in fine cedar dust can lie dormant and smolder if not extinguished properly. D & G Shake argues that this testimony is not relevant to the noon fire because the witness who observed the fire at noon did not say that it occurred in cedar dust. However, the witness testified that the yard fire occurred in the "bolt making" area. Bolt making consists of cutting a cedar log to a certain length and then splitting it to fit into a shake machine. The witness testified that the ground would be covered with little pieces of bark and cedar and wood shavings from a chain saw. We hold that a jury reasonably could infer that in this bolt making process cedar dust would accumulate; that a spark from the burner caused the noon yard fire; that all burning material was not extinguished; that under the hot and dry conditions the burning material eventually reached the mill causing it to burn. Therefore, we believe that, given the circumstances, the rule of relevancy stated in Hoffman did not bar the testimony about the yard fire that occurred six hours before the mill burned.

D & G Shake further argues the evidence also was irrelevant because Karen Schaefer testified that she did not observe any fire in the mill yard when she was there at 4:00 p.m. Karen Schaefer's testimony concerning the condition of the mill at a time closer to the 6:00 p.m. fire is said to be more relevant than evidence of the small yard fire observed at noon. However, this argument disregards the expert's testimony that cedar dust must be stirred and soaked in order to extinguish sparks burning on the bottom. The jury could have inferred that the yard fire at noon was not totally extinguished. Thus, while flames were not seen at 4:00 p.m., sparks could still have been burning undetected. Evidence is relevant when it is logically probative of a material issue for which it is being offered. Briscoe v. Nishitani, 105 Idaho 175, 667 P.2d 278 (Ct.App.1983), overruled on other grounds, Country Insurance Company v. Agricultural Development, Inc., 107 Idaho 961, 695 P.2d 346 (1984). In this case, the small yard fire went to the issues of causation and negligence. We hold that the ruling of the trial court admitting the evidence of the yard fire was not error.

II

D & G Shake next disputes the trial court's denial of several of its motions including its motion for summary judgment. Generally, an order denying a motion for summary judgment is not an appealable order. Smith v. Idaho State University Federal Credit Union, 103 Idaho 245, 646 P.2d 1016 (Ct.App.1982). However, the review of a final judgment allows a review of all interlocutory orders to which an objection has been raised. Matter of Estate of Spencer, 106 Idaho 316, 678 P.2d 108 (Ct.App.1984). D & G Shake recognizes that this court has adopted the general rule that an order denying a motion for summary judgment is not reviewable on appeal from a final judgment. Evans v. Jensen, 103 Idaho 937, 655 P.2d 454 (Ct.App.1982). D & G Shake contends that Evans, a court trial, can be distinguished from the present case, a jury trial.

We cannot agree with this reasoning. The rationale behind the relevant holding in Evans is that review of the denial of summary judgment motions would be unjust to the party who prevailed at trial after the evidence was more completely presented and would be inconsistent with the admonition given to trial courts to resist granting motions for summary judgment if doubt exists as to a party's right to a trial. The court noted that an improper denial of a motion for summary judgment does not constitute reversible error because the result becomes merged in the subsequent trial. Evans v. Jensen, supra. We fail to see how these reasons would be affected by whether the trial was before the court or the jury. Therefore, we decline to review the denial of the summary judgment motion.

We next turn to the denial of D & G Shake's motion for a directed verdict and for judgment notwithstanding the verdict regarding the negligence theory. In support of these motions, D & G Shake asserted that P.N. Cedar failed to introduce any evidence of negligent acts, omissions or breaches of duty by D & G Shake and its employees. On a motion for directed verdict and judgment notwithstanding the verdict, the moving party admits the truth of all the evidence and every legitimate inference that may be drawn in favor of the opposing party. Stephens v. Stearns, 106 Idaho 249, 678 P.2d 41 (1984); Brand S Corp. v. King, 102 Idaho 731, 639 P.2d 429 (1981). If there is substantial evidence to justify submitting the case to a jury, motion for directed verdict should be denied. Stephens v. Stearns, supra. A similar standard exists for ruling on a motion for...