Rafferty v. Northern Utilities Co.

• Decision Date: 04 January 1955
• Docket Number: No. 2627,2627
• Citation: 278 P.2d 605,73 Wyo. 287
• Parties: H. C. RAFFERTY, Plaintiff and Respondent, v. NORTHERN UTILITIES COMPANY, Defendant and Appellant.
• Court: Wyoming Supreme Court

Page 605

278 P.2d 605

73 Wyo. 287

H. C. RAFFERTY, Plaintiff and Respondent, v. NORTHERN UTILITIES COMPANY, Defendant and Appellant.

No. 2627.

Supreme Court of Wyoming.

Jan. 4, 1955.

Edward E. Murane, R. R. Bostwick, Casper, for appellant.

Wm. H. Brown, Jr., George H. Apostolos, Casper, for respondent.

HARNSBERGER, Justice.

Fire destroyed or damaged a portion of plaintiff's building together with a part of its contents, and plaintiff brought his action charging that defendant had furnished and installed in the building an overhead gas furnace or heater; that plaintiff had engaged the defendant to remove, check, adjust, clean and reinstall the heater; that the defendant removed the heater and during the afternoon of November 7, 1950, reinstalled the same and 'between 6 o'clock and 7 o'clock P.M. on said day, by virtue of a failure of said heater or furnace to function properly, the same overheated and caused a fire in said premises which burned much of the building, constituting the business premises of the plaintiff, and a substantial part of the finished products, inventory, work in process, and machinery and equipment located in the plaintiff's premises * * *. That late in the afternoon of November 7, 1950 defendant, through its employees, reported to plaintiff that said Bryant furnace was in good operating condition and the defendant's employees adjusted or set the thermostat so that said heat unit would automatically come on during the night and furnish heat whenever the temperature dropped below the desired limit, as set on the thermostat, and would also automatically cut off when the temperature again reached the desired limit.'

Defendant's negligence was pleaded as follows:

'4. That the defendant was negligent in reinstalling said heater or the fixtures or thermostat pertaining thereto in such a manner as to cause or permit such heating unit to overheat and to set fire to the premises in which the same was installed.

'5. That the aforementioned fire was the direct and proximate result of the negligence of the defendant in failing to properly check, adjust or reinstall said gas furnace, and by virtue thereof plaintiff suffered damages as follows, to-wit: * * *'

The defendant moved to require plaintiff to make the above paragraphs numbered 4 and 5, more definite and certain, by setting out the specific act of negligence charged against the defendant. The motion was overruled and defendant entered a general denial. The cause was tried to a jury and, in accordance with its verdict, judgment was entered in plaintiff's favor for $22,636.86, plus costs. The defendant appeals.

Appellant's brief makes it plain that the grounds principally relied upon in seeking a reversal of the judgment, are concerned with the court's having given instruction No. 3, which is as follows:

'Instruction No. 3. The Court instructs the jury that the burden is upon the plaintiff to prove by a preponderance of the evidence the material allegations of his petition and particularly that by virtue of a failure of the Bryant furnace in question to function properly, the same overheated and caused the fire and that such overheating directly and proximately resulted from the negligence of the defendant in failing to properly check, adjust or reinstall said heater or a part thereof.

'In this case negligence on the part of the defendant may be inferred by the jury if you find, (1) that the heater was such that in the ordinary instance no injurious operation was to be expected unless from a careless construction, inspection or user thereof, and (2nd) that both the inspection and user was at the time of the fire in the exclusive control of the defendant, and (3rd) that the overheating happened irrespective of any voluntary action at the time by the plaintiff. It is essential that it shall appear that the heater was in the exclusive management of defendant and all the elements of the occurrence were within its control and that the overheating was so far out of the usual course that there is no fair inference that it could have been produced by any other cause than negligence. If there is any other cause apparent to which the fire may with equal fairness be attributed, the inference of negligence cannot be drawn.

'Exclusive management, control and use of the heater by the defendant, as above referred to, may have been actual or constructive and may have continued after the inspection, repair and reinstallation thereof unless it appears from the evidence that the plaintiff thereafter and before the fire assumed or exercised some management or control over the heater.'

The evidence shows that in September of 1947, plaintiff purchased from the defendant two overhead, blower-top gas heaters, and the defendant installed these units in plaintiff's frame building in which there were various kinds of electrical equipment, woodworking machines, hand tools, stacks of lumber and cabinet shop merchandise, all owned and used by plaintiff in his conduct and operation of a mill and fixture business. Thereafter on several occasions the heaters failed to operate properly and in each such case the defendant was called upon and repaired or cleaned or adjusted the units. On the last of these occasions, defendant had its employees remove, repair, adjust and reinstall the apparatus. This was completed about 4:15 in the afternoon of November 7, 1950, and the defendant's employee left the building after having adjusted the thermostatic control and reporting to plaintiff's employees that the heater was in satisfactory operating condition. There was some dispute as to whether the heater was burning when defendant's employee left the building.

Plaintiff's employees left the building at about 4:30 p. m. but plaintiff remained in his office, which was in a building opening off the shop, until 6:00 p. m., when he went into the shop, checked the doors, returned to his office, fed the dog, cleaned up and left his office. Neither plaintiff, any of his employees, nor any one else, so far as the evidence shows, disturbed, tampered or otherwise interfered with the apparatus after defendant's employee had finished with its reinstallation and adjustment. At 6:50 p. m. the fire was reported by 'phone to the City Fire Department, which responded to the alarm.

Numbers of photographs taken after the fire furnished important evidence that the principal damage to the building was in the immediate vicinity of the heater, which had undergone the repair or adjustment referred to above. These pictures, supplemented by testimony, showed the heater to be suspended from overhead planking or crossbeams which formed a part of the roof support. The bottom of the heater was something less than six feet from the shop floor. Posts or pillars supporting the crossbeams adjacent to the heater, the crossbeam itself, the rafters and roof immediately above the heater, were shown to have been badly charred and burned, and almost directly above the unit there was a sizeable hole in the ceiling and roof. What caused this hole is somewhat unclear, although the fire chiefs testified it was not made by the firemen in their efforts to extinguish the blaze, and it may have been caused by the burning of the roof at that point. In the area substantially directly below the heater the wood portions of some machinery was charred and pieces of plywood shown to have been standing on edge were burned in the top areas but not on the bottom where they rested on the floor and the floor of the shop was not burned. The heater itself was so badly damaged by fire that the blades of its electric fan were melted. The captain of one fire company called to extinguish the blaze, testified over defendant's objection that 'the most charred place was in the southeast corner directly above the heater.' The captain of another fire company called, testified over defendant's objection 'that the fire started in the southeast corner of the building, at or near the heater.'

There was evidence that the building had been completely rewired for electricity in 1947; that the electric motors in use were equipped with individual fuses according to their horsepower and amperage, as well as there being a general fuse for the whole electrical system; that five big 'No Smoking' signs, approximately twelve inches wide by four feet in length, were hung throughout the building and a similar sign on the outside door going into the shop; that outside that door was a receptacle secured to the wall and holding water, to provide a place to put cigarettes when entering the shop; that no employees had smoked in the shop the day of the fire and were never permitted to smoke in the shop; that no one but plaintiff was in shop after 4:30 p. m., and until plaintiff left at 6:00 p. m.; that there was neither paint, cleaning fluid, oily or paint covered rags or other 'combustible material' in the shop on the day of the fire; that the shop was clean; that there was a certain amount of sawdust and shavings in the shop; that sawdust and shavings have to be stirred or agitated to get enough air to burn; and that 'a pile of shavings will burn over the top with a flame, and it sears its own kind of crust over the top, like a crust of bread. Lots of times a pile of shavings will burn from the top and go completely out'; and 'sawdust is worse than shavings. It packs tighter.'

There was also testimony admitted over defendant's objection that in April of 1950, when the heater was faultily operating, flame was observed coming out from under the firebox at the back side of the heater--the witness indicating the location where the fire came out of the heater by pointing it out on a photographic exhibit.

It is also clear from the evidence that the heater in question was such that in the ordinary instance no injurious result was to be expected from its operation unless from a careless construction, inspection, installation or user.

The defendant's evidence...