Pepsi Cola Bottling Co. of Anchorage v. Superior Burner Service Co.

Decision Date19 May 1967
Docket NumberNo. 625,625
Citation427 P.2d 833
PartiesPEPSI COLA BOTTLING CO. OF ANCHORAGE, Inc., Appellant, v. SUPERIOR BURNER SERVICE CO., Inc., Appellee.
CourtAlaska Supreme Court

Warren Matthews, Jr., and Theodore M. Pease, Jr., of Burr, boney & Pease, Anchorage, for appellant.

Daniel A. Moore, Jr., and James K. Singleton, of Delaney, Wiles, Moore & Hayes, Anchorage, for appellee.

Before NESBETT, C. J., and DIMOND and RABINOWITZ, JJ.

OPINION

RABINOWITZ, Justice.

Appellant instituted this action in the superior court where it sought recovery of damages resulting from appellee's purported failure to properly repair a boiler. Appellant based its complaint on separate causes of action sounding both in tort (negligence) and in contract (breach of an implied warranty). After trial by a jury a general verdict in appellee's favor was returned and a judgment dismissing appellant's causes of action were thereafter entered.

Appellant contends that a new trial is required because of the trial court's failure to give any 'limiting' instruction in regard to the applicability of certain evidence which, without such an instruction, could possibly have been considered by the jury in its determination of the contributory negligence issue. Appellant further argues that it is entitled to a new trial because of the lower court's refusal to instruct the jury on its separate cause of action based upon breach of implied warranty.

Appellant was engaged in the business of bottling, canning, and marketing Pepsi Cola products and other beverages in Anchorage, Alaska. In 1958 appellant had constructed a processing plant in which it installed two boilers to furnish hear and steam needed to carry out its manufacturing operations. Originally the boiler in question was oil-fired but during the month of October 1963 appellant had appellee convert it to natural gas. In the early morning hours of December 2, 1963, one of appellant's employees discovered that the boiler in question was not operational. Appellee was then called and requested to 'check the * * * boiler and get it started.' Two of appellee's employees responded to this request and succeeded in refiring the boiler shortly before noon. Later in the day the boiler 'was discovered to be firing without any water and in an extremely overheated' and damaged condition.

In its tort cause of action appellant alleged that appellee's negligence consisted in the failure of its employees 'to discover the lack of water in the boiler' and 'to examine the boiler for the presence of water' prior to relighting the boiler. 1 In its answer appellee pled, in part, the defense of contributory negligence.

The evidence developed at the trial was in sharp dispute as to what services appellee's employees were asked to perform in regard to the malfunctioning boiler; as to what appellee's employees undertook to accomplish in regard to the boiler; as to what, if anything, appellee's two employees said to appellant's employees, more particularly, whether appellee's employees disclosed that the repair was of temporary character, whether they indicated the need to have the boiler thoroughly cleaned, and whether they warned of the necessity of blowing down the lines and keeping a periodic check (every half hour or hour) on the boiler. 2

Of particular significance to the issues in this appeal is the fact that during the trail appellee elicited evidence which concerned the condition, and improper maintenance by appellant, of the boiler prior to the event which occurred on December 2, 1963. 3

On the several occasions when evidence of this character was offered, appellant's counsel objected and requested that the trial judge give a limiting instruction to the effect that any evidence of appellant's improper maintenance of the boiler prior to December 2, 1963, was not to be considered by the jury in regard to the question of whether appellant had been contributorily negligent after appellee had refired the boiler on December 2. Appellant's position, both at trial and here, is that although evidence of this nature was admissible in regard to the value of the boiler and damages in general, the jury should have been instructed that this evidence was neither relevant to, nor was to be considered, in deciding the contributory negligence issue. In overruling appellant's initial objection to this line of testimony, the trial judge stated that the matter was one that 'should be handled in the Court's overall instructions given at the end of the case.' 4

At the conclusion of the trial court's charge to the jury, appellant objected to the court's refusal to give its requested limiting instruction which read:

Whether the plaintiff had properly maintained the boiler before the defendant was called in to make repairs on December 2, 1963, is irrelevant to the issue of the defendant's liability. Failure of the plaintiff to properly maintain the boiler before December 2, 1963 does not, as a matter of law, constitute contributory negligence.

On the other hand, the jurors were instructed that if they found 'that the incident in question was proximately caused by the contributory negligence' of appellant, then appellant was precluded from any recovery. 5

In the instructions which were given to the jury, no differentiation was made between evidence of appellant's negligent maintenance of the boiler prior to December 2, 1963, and evidence of appellant's acts and omissions relating to the boiler, which occurred subsequent to appellee's refiring of the boiler on December 2. Review of the record further discloses that at no point during the trial were the jury given any instruction concerning the purposes for which this evidence had been admitted.

Appellee's initial line of argument is that since appellant's requested limiting instruction was erroneous, the trial court was under no obligation to give it. 6

The subject of requested instructions is covered by Civil Rule 51(a) which provides in part:

At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law set forth in the requests. 7

Also pertinent is the provision of Civil Rule 51(b) which states in part:

The court shall instruct the jury on all matters of law which it considers necessary for their information in giving their verdict.

It is established that if the requested instruction is defective, the court is under no duty to give it or to supply a correct instruction. 8 Assuming appellant's requested limiting instruction was erroneous, the trial court correctly refused to give it. But this is not the end of our inquiry. Numerous authorities have concluded that if the defective, or erroneous, requested instruction directs the court's attention to an issue which the jury has not been instructed upon but which is necessary to enable the jury to intelligently determine the case, 'the court's error in failing to charge may not be excused by technical defects in a request to charge.' 9

We hold that the court's refusal to give any limiting instruction concerning appellant's allegedly improper maintenance of the boiler prior to December 2, 1963, was error under the circumstances appearing in this record. By virtue of counsel for appellant's numerous objections on this point made during the course of the trial, by virtue of appellant's requested instruction, and as a result of appellant's objection to the court's refusal to give the requested instruction, the point was unequivocally brought to the attention of the trial judge. As we mentioned earlier, in its instructions the trial court did not at any time distinguish between acts and omissions on appellant's part which occurred prior to December 2, 1963, and the events which transpired on December 2 after appellee's employees left appellant's plant. We are of the opinion that the trial judge in his charge should have informed the jury that any evidence of appellant's negligent maintenance of the boiler prior to December 2 was not, in and of itself, a sufficient basis for a finding of contributory negligence on appellant's part. 10 Due to this omission, the issue of appellant's contributory negligence was not fairly presented to the jury. Without any limiting instruction the jury could have concluded that appellant was contributorily negligent solely because of its negligent maintenance of the boiler prior to December 2, 1963. 11 We are of the opinion that this omission in the court's charge to the jury was prejudicial error. 12

Although we agree with appellee's contention that evidence of appellant's prior negligent maintenance was admissible and relevant in regard to the damage issues in the case, this fact did not negate the necessity of the court drawing the distinction mentioned for the purpose of assisting the jury in its consideration of the contributory negligence issue. 13 Wnen evidence possesses multiple relevancy 'leading to distinct inferences or as bearing upon different issues' and such evidence is competent as to some issues but incompetent as to others, the trial judge, upon request, should instruct the jury as to the permissible and impermissible uses of such evidence. 14 We agree with the trial judge's view that the timing of such an instruction, or instructions, should be left to the judge's discretion and that an instruction need not be given every time an occasion arises during the trial. 15 But in the case at bar the jury was never instructed as to the permissible uses of the evidence which related to appellant's prior negligence.

The second major issue in this appeal relates to appellant's breach of implied warranty cause of action. As to this cause of action appellant alleged that appellee 'contracted * * * to examine the * * * boiler and to restore it to service and warranted that it would do so in a safe and workman-like manner.' 16 Appellant specifies as error the trial...

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