Palleson v. Jewell Co-op. Elevator

• Decision Date: 22 May 1974
• Docket Number: No. 55862,55862
• Citation: 219 N.W.2d 8
• Parties: Darlene PALLESON, Executor of the Estate of John Carroll, et al., Appellees, v. JEWELL COOPERATIVE ELEVATOR, Appellant.
• Court: Iowa Supreme Court

Page 8

219 N.W.2d 8

Darlene PALLESON, Executor of the Estate of John Carroll, et al., Appellees, v. JEWELL COOPERATIVE ELEVATOR, Appellant.

No. 55862.

Supreme Court of Iowa.

May 22, 1974.

Stewart H. M. Lund and Patrick B. Chambers, Webster City, for appellant.

Jim R. Sween of Lundy, Butler, Wilson & Hall, Eldora, and Brekken, Deppe & Reed, Story City, for appellees.

Heard before MOORE, C.J., and MASON, RAWLINGS, REYNOLDSON and HARRIS, JJ.

REYNOLDSON, Justice.

Defendant Jewell Cooperative Elevator (Jewell) appeals from judgment entered on jury verdict against it, in litigation arising out of a liquified petroleum gas furnace explosion. We affirm.

The explosion on August 30, 1967, damaged a residence owned by plaintiffs Knudson, Armstrong, Hedderich and Coston, and injured John Carroll, who leased the dwelling. These persons joined in filing a personal injury and property damage action in several divisions. Carroll died from causes unrelated to his injuries, on April 3, 1971, before trial. The executor of his estate was substituted as plaintiff.

Other defendants were variously eliminated from this litigation by special appearance, summary judgment, and jury verdicts.

With respect to Jewell, the case was submitted to the jury by special interrogatories based on theories of specific negligence, implied warranty, strict liability and res ipsa loquitur. It found against Jewell only on the basis of res ipsa loquitur. In response to damage interrogatories the jury fixed the owners' damages at $7000 and damages to Carroll's estate at $40,000.

The furnace involved was a 150,000 B.T.U. Armstrong furnace purchased in November 1962. It was uncrated by one Mortvedt with the help of Carroll. They positioned it on a poured concrete slab, installed a chimmey flue pipe, and constructed the hot and return air ductwork.

Service personnel from Jewell installed the bulk tank and the gas line to the furnace. A cooper line carried the gas from the tank regulator through a low pressure regulator on the outside of the house and then to a manual shut-off valve above the furnace. Black iron pipe was used to pass the gas through the cut-off valve and to a drip-leg. The drip-leg was a segment of capped black pipe about two inches long extending toward the floor from a tee in the line outside the furnace. The function of the drip-leg was to capture foreign materials in the gas supply system. From the tee the gas was carried by a short length of the same size black pipe into the furnace casing through a knock-out panel orifice. It is this short horizontal pipe length, and who installed it, which assumed major trial significance.

The short gas pipe just referred to connected on the inside of the furnace with a vertical pipe leading upward from the main solenoid gas control valve.

Following closure of the gas supply line from the tank to the furnace it was never broken or disconnected. The minor service calls from date of installation of the gas supply to the date of explosion were all performed by Jewell, which also furnished all gas used.

The explosion at early daylight blew out a side of the house. When Carroll, who had been sleeping in bed, regained consciousness he was lying on the side of the house about twelve feet from the building.

On the same day Lionel K. Arnold, a private consultant and retired professor of engineering at Iowa State University, conducted an investigation with a deputy state fire marshall. A small piece of elm leaf was found within the enclosed gas supply between the plunger and the valve seat in the solenoid valve, permitting gas to escape in explosive quantities.

Jewell's brief presents eleven issues for review, which we consolidate into seven divisions.

I. Submission on the theory of res ipsa loquitur.

Jewell asserts trial court erroneously permitted the case to go to the jury on the theory of res ipsa loquitur, because the evidence clearly failed to show it had exclusive control of the instrumentality.

Plaintiffs' theory was that a piece of elm leaf was introduced into the gas supply line for Carroll's furnace at some point between the storage tank and the solenoid valve inlet. Shortly before the explosion occurred, the leaf worked its way into the solenoid valve seat. The leaf held the valve open, permitting escape of the gas which eventually exploded.

Thus plaintiffs argue the instrumentality which is significant is not the house, the furnace, or the solenoid valve, but the gas and gas supply line which transported the leaf segment to the valve.

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 been used, the happening of the injury permits but does not compel an inference defendant was negligent. Thompson v. Burke Engineering Sales Co., 252 Iowa 146, 148--49, 106 N.W.2d 351, 353 (1960); Eaves v. City of Ottumaw, 240 Iowa 956, 969, 38 N.W.2d 761, 769 (1949).

The res ipsa theory does not raise any inference as to what did occasion the injury-causing event. If the necessary causal evidence is circumstantial, it must make plaintiffs' theory not merely possible, but more probable than any other theory based on the evidence. Rule 344(f)(16), Rules of Civil Procedure; Wilson v. Paul, 176 N.W.2d 807, 809 (Iowa 1970).

It is not required for application of the doctrine to prove defendant had control of the instrumentality when the injury occurred. It is enough to show control at time of the alleged negligent act, provided plaintiff proves there was no change in condition of the instrumentality, and no intervening act, which could reasonably have caused the event resulting in the injury. Pastour v. Kolb Hardware, Inc., 173 N.W.2d 116, 125 (Iowa 1969); Sweet v. Swangel, 166 N.W.2d 776, 778 (Iowa 1969); Thompson v. Burke Engineering Sales Co., supra, 252 Iowa at 149--50, 106 N.W.2d at 353.

In this case the jury could have found the following facts. The furnace manufacturer inspected and tested the solenoid valve and placed masking tape over the inlet to guard against introduction of foreign materials. Nothing in the furnace was preassembled at the factory between the solenoid valve and the gas supply. The furnace remained enclosed in its shipping carton until it arrived in the Carroll basement. Neither Mortvedt nor Carroll had anything to do with the gas supply or piping the gas into the furnace.

The jury could have found Jewell's employees Anderson and Jacobson were the only ones who hooked up the gas supply, and that Jacobson followed the usual practice of removing the knock-out panel and installing the black iron pipe into the furnace itself, connecting it to the solenoid valve and starting the furnace in operation. Thereafter, Jewell alone serviced the system and furnished and the gas. Carroll never attempted any adjustments.

It is apparently agreed an elm leaf segment in the solenoid valve caused the gas leak and resulting explosion. From expert testimony the jury could have determined this foreign material could not have been in the valuve very long without having caused trouble and was therefore not in the valve when the furnace was installed. There was evidence from which the jury might determine the leaf could not have become positioned in the valve as a result of or after the explosion.

Applying our law above set out to these circumstances, we hold a jury question was generated on the question of Jewell's control of the gas line and supply, which could well be the instrumentality which introduced the leaf particle resulting in the solenoid valve's malfunction. Neither the furnace nor the solenoid (absent the leaf segment) were defective. Jewell's lack of control over those instrumentalities is immaterial to the issue of application of the res ipsa theory. See Wilson v. Paul, supra, 176 N.W.2d at 811, ('We believe the trial court failed to recognize the different purposes for showing control of the torch and control of the building').

Jewell further argues this case should not have been submitted to the jury on the theory of res ipsa loquitur because the evidence did not show Carroll's injury was caused without his fault.

Ordinarily plaintiff meets this burden (which should not be confused with the problem of contributory negligence) by showing he has done nothing abnormal with the instrumentality causing the injury and has used it in the manner and for the purpose for which it was intended. Sweet v. Swangel, supra, 166 N.W.2d at 778. He has the burden of proof by a mere preponderance of the evidence: even though the question of his own contribution is left in doubt, res ipsa loquitur may still be applied under proper instructions to the jury. Prosser, Res Ipsa Loquitur in California, 37 Cal.L.Rev. 183, 202 (1949).

We hold this burden as to Carroll's activity was sufficiently met to warrant submission of the case on the res ipsa theory.

Nor do we agree with Jewell the case should not have been submitted to the jury on both the res ipsa loquitur doctrine and allegations of specific negligence. It is not sufficient to assert, as does Jewell, that because plaintiffs' petition alleges the explosion was caused by the leaf particle there was no occasion for application of the res ipsa doctrine. The fighting issue was how the foreign substance was introduced into the system. This set of facts presents the proper circumstances for submission of the case on both specific negligence and res ipsa loquitur. Eaves v. City of Ottumwa, supra, 240 Iowa at 968, 38 N.W.2d at 768; see Grings v. Great Plains Gas Co., 260 Iowa 1309, 1317--18, 152 N.W.2d 540, 541--45 (1967).

A closely related issue raised by Jewell is based on the requirement that for the doctrine to apply the occurrence must...