Sommer v. Yakima Motor Coach Co., Inc., 24512.

• Decision Date: 24 October 1933
• Docket Number: 24512.
• Citation: 174 Wash. 638,26 P.2d 92
• Court: Washington Supreme Court
• Parties: SOMMER et ux. v. YAKIMA MOTOR COACH CO., Inc., et al. (GLOBE & RUTGERS FIRE INS. CO. et al., Interveners. SPRINKLE et ux. v. YAKIMA MOTOR COACH CO., Inc., et al.

26 P.2d 92

174 Wash. 638

SOMMER et ux. v. YAKIMA MOTOR COACH CO., Inc., et al. (GLOBE & RUTGERS FIRE INS. CO. et al., Interveners.

SPRINKLE et ux. v. YAKIMA MOTOR COACH CO., Inc., et al.

No. 24512.

Supreme Court of Washington, En Banc.

October 24, 1933

Appeal from Superior Court, Benton County; Matt L. Driscoll, Judge.

Action by E. H. Sommer and wife against the Yakima Motor Coach Company, Inc., and another, in which the Globe & Rutgers Fire Insurance Company and another intervened, and action by D. S Sprinkle and wife against the Yakima Motor Coach Company Inc., and another, which were consolidated for trial. From judgments for plaintiffs, defendants appeal.

Affirmed as to defendant named, and reversed as to the other defendant, with directions.

BLAKE J., and BEALS, C.J., dissenting.

Bogle, Bogle & Gates, Ray Dumett, and Bundy & Swale, all of Seattle, and Bushnell & Beardsley, of Prosser, for appellants.

B. E. McGregor, of Prosser, Moulton & Powell, of Kennewick, and Fred G. Clarke and Clarke & Clarke, all of Seattle, for respondents.

Cleland & Clifford, of Olympia, amici curiae.

STEINERT Justice.

Two different sets of plaintiffs brought separate actions to recover damages resulting from the destruction of a garage building and certain of its contents by fire alleged to have been communicated from an overheated stage that had been parked in the garage overnight. The plaintiffs Sommer, who operated the garage, sought to recover for the destruction of their general garage equipment and tools, their stock of merchandise, two automobiles, and the business theretofore conducted by them. The plaintiffs Sprinkle, owners of the garage building, sought to recover for the destruction of the building itself and one automobile. The cases were consolidated for trial, but separate verdicts were returned. Motion for judgment notwithstanding the verdict was interposed in each case and overruled by the court. Motions for new trial were likewise overruled, conditioned upon the acceptance by the plaintiffs of certain reductions. The reductions having been accepted, judgments upon the verdicts were entered, from which defendants appeal. The two cases have been consolidated in this court. The claims of the interveners are, so far as the appeal is concerned, merged in one of the judgments, and therefore no further reference will be made either to those claims or to the interveners. For the sake of convenience, we will refer to the appellant Yakima Motor Coach Company, Inc., as 'the Yakima company' and to the appellant Washington Motor Coach Company as 'the Washington company.'

The assignments of error, twenty-two in number, are grouped under four principal contentions. The facts, so far as it may be necessary to relate them, will be set forth according to, and as we discuss, the separate contentions.

Appellants' first contention is that the evidence fails to establish that the fire was caused by the negligence of the Yakima Company, which controlled the operation of the stage. The facts in this connection, as we think that the jury was entitled to believe and accept them, are as follows: Early in the evening of Thanksgiving Day, 1929, a stage, owned by the Washington Company, but leased for the time being to the Yakima Company, was being operated by the latter's employee and driver between Yakima and Prosser. The stage had been traveling very fast, and the motor apparently had become overheated. At a point about a mile from the depot in Prosser, one of the passengers observed a blaze coming through the floor of the stage. The driver's attention was called to this, whereupon he stopped the stage, permitting the passengers to disembark and remain outside while he put out the fire with a Pyrene extinguisher. The stage then proceeded on towards Prosser, but in a few minutes the fire again broke out, and was again extinguished by the driver. There were several recurrences of the fire within the distance of a mile, requiring the application of the extinguisher. When the stage arrived at the depot in Prosser, which was the end of the run, the blaze had again appeared and with seemingly greater intensity than Before . Here the passengers, having ended their journey, left the stage, and the driver, after again using the extinguisher, proceeded on alone to the Sommer garage, where he customarily parked the stage overnight. This was about five minutes after 9 o'clock in the evening. When the driver left the garage, after parking the stage, there was no one present on the premises, with the possible exception of a man whose identity has never been established and whom no one, save the driver, saw that evening.

The garage building was about 50 feet in width and 100 feet in length; the front of the building facing north. The floor was of concrete and the walls, 14 feet in height, were of brick surmounted by a wooden roof covered with a tar composition. Across the room, from east to west, 56 feet from the front of the building, ran a wooden partition having an equal height with the walls, and above the partition extending to the roof was plasterboard. Near the middle of the partition was a sliding door about 9 feet in width; to one side of this was a smaller door. In the northeast corner of the building was an office, the inner walls of which were of wooden construction. There were thus three compartments in the building, an office, a storage room in front of the partition, and a repair shop in the rear. In the southeat corner of the storage room was a lavatory about 7 feet high and open at the top, with three of its walls composed of wood. Heat was supplied to the building by means of three stoves, one in each of the three main compartments. The lighting system in use was electrical; the wiring being what is designated as 'open tube wiring.' Insulated wires entered the building from the outside and traveled through porcelain posts set into the cross-beams, thus preventing contact between the wires and the wooden beams. At convenient places were the usual droplights. Wherever it was necessary for the wires to pass through the wooden partition, holes about 4 inches in diameter were cut, allowing the wires to pass through the center. In addition to the electric lighting system, the owner had also installed a gasoline lighting plant, consisting of a tank outside the building and a hollow wire conduit leading inside. The garage was used for both storage and repair work. A number of people, including the Yakima Company, customarily kept their cars or trucks in the storage room, and, for their convenience, were given keys so that they might come and go as they pleased after the garage was closed for the night.

The stage arrived at the garage at about 9:05 p. m., its usual time, and was parked along the center of the floor with its front projecting through the larger door in the partition. Ranged about the walls of the garage were about ten automobiles and one or two trucks that had come in on their own power; in the repair shop were two automobiles.

There was no direct evidence as to how the fire stated; there being no eyewitness. At about 11 p. m. a number of individuals at different points in the town saw the fire shooting up through the center of the roof. This, it will be observed, would be at a point just above the partition through which the stage extended below. The alarm was turned in, and shortly thereafter entry to the garage was effected through the front door. The density of the smoke at first concealed the fire within the building, but, as the air formed a current, the fire appeared to be raging around and over the truck and up along the partition through the roof. At that time there was no fire in the front part of the building. By the time that the fire was finally extinguished, the garage had been practically destroyed. Although the walls were left standing, they were, from a practical standpoint, beyond repair. Some of the automobiles stored within were almost entirely destroyed; others were only slightly damaged. The stage was very badly burned. Certain parts of the chassis were melted and completely ruined; other parts, however, were salvaged and later used and installed in other machines.

There was a good deal of evidence on the part of appellants that was at variance with the evidence which forms the basis of our narrative, thus presenting questions of fact for the jury to determine and invoking the element of credibility.

It is the contention of appellants that all the evidence of respondents concerning the claimed negligence of the stage driver and the asserted causal connection between his negligence and the fire was purely circumstantial, and that it was therefore respondents' duty to establish by clear proof that the circumstances all concurred to prove that the fire occurred in the manner alleged; and, further, to prove that those circumstances were inconsistent with any other rational conclusion. According to the opinion given by an expert witness for the appellants, the fire was occasioned by one or more of the following probable causes: (1) One of the three stoves; (2) the electric wiring; (3) a cigarette thrown among accumulated papers in the lavatory; (4) the gasoline lighting system; (5) sparks on the roof.

With reference to these asserted causes, there was evidence on the part of the respondents (1) that there was no fire in the stoves; (2) that the electric wiring was in good condition or at least that there was no indication of any defect that might cause a short circuit, and that the wires were removed from any possible contact with any inflammable material; (3) that there was no paper on the floor of the lavatory that could reasonably have been ignited by a cigarette; (4) that the gasoline lighting...