Schmidt v. Plains Elec., Inc.

• Decision Date: 11 July 1979
• Docket Number: GRAW-EDISON,9554,Nos. 9553,s. 9553
• Citation: 1 A.L.R. 4th 733,281 N.W.2d 794
• Parties: Lawrence SCHMIDT and Pat Schmidt, d.b.a. Pat's Motel, Plaintiffs and Appellees, v. PLAINS ELECTRIC, INC., Defendant, Third-Party Plaintiff, Appellee and Appellant, v. McCOMPANY, a foreign corporation, Third-Party Defendant, Appellant and Appellee. Robert PIERCE, Allen L. Binder, and Agnes M. LeSarge, Plaintiffs and Appellees, v. PLAINS ELECTRIC, INC., Defendant, Third-Party Plaintiff, Appellee and Appellant, v. McCOMPANY, a foreign corporation, Third-Party Defendant, Appellant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 794

281 N.W.2d 794

1 A.L.R.4th 733

Lawrence SCHMIDT and Pat Schmidt, d.b.a. Pat's Motel, Plaintiffs and Appellees, v. PLAINS ELECTRIC, INC., Defendant, Third-Party Plaintiff, Appellee and Appellant, v. McGRAW-EDISON COMPANY, a foreign corporation, Third-Party

Defendant, Appellant and Appellee.

Robert PIERCE, Allen L. Binder, and Agnes M. LeSarge, Plaintiffs and Appellees, v. PLAINS ELECTRIC, INC., Defendant, Third-Party Plaintiff, Appellee and Appellant, v. McGRAW-EDISON COMPANY, a foreign corporation, Third-Party

Defendant, Appellant and Appellee.

Civ. Nos. 9553, 9554.

Supreme Court of North Dakota.

July 11, 1979.

Rehearing Denied Aug. 2, 1979.

William R. Mills, Bismarck, for plaintiffs and appellees Pat's Motel.

Pringle & Herigstad, Minot, for appellee and appellant Plains Electric, Inc.; argued by Mitchell Mahoney, Minot.

Wheeler, Wolf, Wefald & Peterson, Bismarck, for appellant and appellee McGraw-Edison Co.; argued by Albert A. Wolf, Bismarck.

SAND, Justice.

On 12 January 1974 a fire completely destroyed eight units of a motel located on the outskirts of Minot. The district court concluded the fire was caused by the malfunction or faulty design of an electric wall heater manufactured and supplied by McGraw-Edison Company and installed by Plains Electric, Inc. Judgment was entered accordingly, from which both McGraw-Edison and Plains Electric appealed.

In 1973, the plaintiffs, Lawrence and Pat Schmidt, were the owners of a motel business called Pat's Motel. The units of that motel were heated by propane gas. In response to a rumored future shortage of propane, Pat Schmidt sought the installation of electric baseboard heaters into each of the units to serve as supplemental or alternative heat sources. She contacted Plains Electric which agreed to sell and install heaters manufactured by McGraw-Edison. The project of installing the heaters was completed on 26 December 1973. The heaters were thermostatically controlled and two such heaters were placed in each unit. The president of Plains Electric testified he instructed his installation team to place the heaters one inch off the floor and to center them beneath a window. The two men who installed the heaters testified they complied with those installation instructions as much as possible.

Plaintiffs alleged Unit 16 was the unit in which the fire started. At the time of the fire Unit 16 was occupied by Allen L. Binder, a Minot school teacher. Testimony showed Binder had lived in the unit for a period of time prior to the fire. Binder's practice was to directly leave school on Friday afternoon for his parents' home in another community, and return to the motel on Sunday evening.

Binder testified that after the electric heaters were installed, he closed the registers for the propane furnace and relied on the baseboard heaters as the sole source of heat. Accordingly to Binder, on the Friday before the fire he awoke at approximately 2:30 a. m. because of excessive heat in the room. He said he turned down the thermostat and opened the doors to the unit until it cooled off and then he went back to sleep. The next morning the room was comfortably warm. Binder set the thermostat and left for school and in keeping with his usual practice did not return to the room that Friday afternoon.

On another occasion, approximately a week before the fire, the two motel maids found the same Unit 16 excessively warm to the point they could hardly touch the furniture. They notified Mr. Schmidt, who turned down the thermostat and the room cooled off.

Another resident of the motel, Agnes LeSarge, testified that on the morning of the fire she was sleeping in Unit 15. She awoke and smelled something like scorched paper coming from the gas heater. The smell grew stronger. She decided to report it and while she was on her way a lady from Unit 17 started yelling "Fire."

Patsy Schmidt, the daughter of the owners of the motel, testified that when she heard the lady from unit 17 yelling she opened the door to unit 16 and saw white smoke. When she returned to Unit 16 a second time with a fire extinguisher, there was more smoke but still no flames. She then shut off the electric power to those units. Shortly after that the Minot rural fire department arrived but was unable to extinguish the fire before it had consumed Units 14 through 21.

The Schmidts commenced an action against Plains Electric. Binder and two other occupants also initiated an action against Plains Electric seeking damages for the destruction of their personal property. McGraw-Edison became a third-party defendant to both actions after Plains Electric filed a third-party complaint. The cases were consolidated and tried to the district court sitting without a jury. The trial court found that "As a result of the malfunction and faulty design of the heater in Unit # 16, excessive heat was generated and built up, causing ignition to occur in Unit # 16." The court concluded that McGraw-Edison was liable for all the damages suffered by the plaintiffs. McGraw-Edison filed a consolidated motion for a new trial, amendment of findings of fact, and additions to the findings of fact. The motion was denied and judgment was filed. McGraw-Edison appealed from the final judgment and the order denying the motion for a new trial and amendment of findings. Plains Electric appealed from parts of the final judgment.

I

Although other collateral inferences were raised during the course of trial, the plaintiffs relied primarily on one theory in seeking to establish liability on the part of Plains Electric and McGraw-Edison. The basis of their theory was that the heaters had been installed behind some acrylic-backed drapes. The plaintiffs contended, in effect, that because of the malfunction of safety switches on the heaters, or because of the way the heaters were designed in the placement of the safety switches, excessive heat was allowed to build up between the heaters and the drapery material until the ignition point of the drapery material was reached. In support of that theory, the plaintiffs offered the testimony of an expert witness, Sharad Bhatt. Bhatt testified he conducted tests on both the drapery material and the heaters. In brief, the main significance of those tests was that in a normal operating condition, without blockages, the heater was capable of producing temperatures of between 301o and 310o F., and with various parts of the heater blocked, such as the air inlet or outlet, the heater produced temperature ranges of up to 411o and 447o F. He also testified the drapery material, when folded to facilitate spontaneous combustion, had an ignition range, based upon various exposure times, of between 409o and 459o F.

McGraw-Edison argued on appeal that if the plaintiffs' theory is accepted several assumptions must be made, such as the position of the heater in relation to the drapes, the effect this position would have on restricting air flow, and the function or malfunction of the thermostat. McGraw-Edison contended the weight of evidence on several of these assumptions is directly contrary to and does not support the plaintiffs' theory.

Initially we disagree with McGraw-Edison's contention that all the factors it set forth are absolutely necessary to support the plaintiffs' theory of how the fire started. As to those factors which were necessary to reach the plaintiff's theory, evidence was offered to support each one. It is important to note very little of the expert testimony that was offered, as well as the testimony concerning the setting of the room, was uncontradicted. It would, however, serve little purpose to recite the testimony supporting the plaintiffs' position. Suffice it to say, sufficient evidence was offered and received from which inferences in support of the plaintiffs' theory could be drawn. Inferences drawn from the evidence may constitute the basis for the findings of fact made by the trial court. Slope County, Board of County Commissioners v. Consolidation Coal Co., 277 N.W.2d 124 (N.D.1979). In reviewing findings of fact this court is governed by the clearly erroneous rule of Rule 52(a), North Dakota Rules of Civil Procedure. Under this rule we will set aside a finding of fact only when, although there is some evidence to support it, we, after reviewing the entire evidence, are left with a definite and firm conviction a mistake has been made. In re Estate of Elmer, 210 N.W.2d 815 (N.D.1973). In applying this rule, we set findings of fact aside only if they are found to be clearly erroneous based upon all the evidence, and not merely because we may have reached a different result had we tried the case. Anderson v. Mooney, 279 N.W.2d 423 (N.D.1979). What McGraw-Edison, Plains Electric, or even this appellate court might view as the greater weight of the evidence concerning the operation of the safety switches, the relative position of the drapes to the heater, the effect of this position on restricting air flow, and the function or malfunction of the thermostat has little relevance when the record contains sufficient admissible evidence to support the trial court's findings as there was in this case.

II

McGraw-Edison argued the trial court failed to make findings of fact on the critical points set forth above. It contended, in effect, that without such findings, this court is not afforded a clear understanding of the trial court's decision. McGraw-Edison further argued the trial court's failure to include these determinations in its findings of fact indicates the facts were never ascertained by the trial court. We agree the findings of fact could have been more definitive, but this still does not make them erroneous. McGraw-Edison also criticized the practice employed here of having the prevailing party prepare findings of fact and conclusions of law, ¹ but neither does this criticism, when applied to the findings of fact in this case, lead us to a definite and firm conviction that a...