Stevens-Salt Lake City v. Wong

• Decision Date: 07 August 1953
• Docket Number: STEVENS-SALT,No. 7920,7920
• Parties: LAKE CITY, Inc. v. WONG et al.
• Court: Utah Supreme Court

Page 586

259 P.2d 586

123 Utah 309

STEVENS-SALT LAKE CITY, Inc. v. WONG et al.

No. 7920.

Supreme Court of Utah.

Aug. 7, 1953.

White, Wright & Arnovitz, Salt Lake City, for appellant.

Don J. Hanson, Salt Lake City, for respondents.

WADE, Justice.

Appeal from a jury verdict and judgment thereon of no cause of action in a suit to recover damages caused by a leaking water pipe.

The facts are simple. Stevens-Salt Lake City, Inc., appellant herein, occupied the first floor of a building at South Main Street, in Salt Lake City, Utah, as a ladies apparel shop; and the China Tea Garden, respondents herein, occupied the second floor of this building as a restaurant. In 1938, respondents caused to be installed the water pipe which in September, 1950 sprung a leak, causing water to seep through the ceiling damaging some of appellant's merchandise. A couple of weeks later, in October, as a result of the seepage of the water in September, large portions of plaster fell from the ceiling causing extensive damage to the merchandise and fixtures and necessitating the closing of the business for a week.

One of the respondents testified that the pipe which had sprung the leak was enclosed behind a wainscoting in respondents' premises and although he personally knew nothing about pipes, it was installed by a plumber who was paid on the basis of putting in new pipe. In order to inspect this pipe it would be necessary to tear away the wainscoting. When the water was discovered seeping through appellant's ceiling it was immediately shut off. An inspection was thereupon made of their own premises without removing the wainscoting but no water was found there, whereupon the wainscoting was torn away and a small leak was discovered in the pipe.

Although appellant did not request a directed verdict, it now argues that the verdict of the jury was not justified because respondents submitted no evidence to negative the inference of their negligence and also that under the facts of this case they were liable under the theory of 'strict liability' for all damages proximately caused by the leaking pipe.

On the question of negligence of the respondents herein, the court, at the request of appellant, instructed the jury on the doctrine of res ipsa loquitur, as follows:

'You are instructed that the plaintiff proved an injury which in the ordinary course of things does not happen, if the person having control of the water under pressure in pipes and plumbing fixtures in the upper story of a building uses proper care and therefore there is a presumption of negligence on the part of such person, and that it speaks for itself that the defendants have been negligent. You are further instructed that the defendants may overcome this presumption of negligence if they offer an explanation as to how the water came to escape without their fault or why it was permitted to flow for such a length of time and in such volume as to find its way down the ceiling and upon the goods in plaintiff's store.'

but refused to give appellant's requested instructions numbers 3 and 4, which would have told the jury that the defendants were negligent as a matter of law because the only evidence they produced was that they did nothing to prevent the damage such as removing the wainscoting to inspect the pipe and that the defendants were liable for the damages sustained by plaintiff unless 'the defendants offered evidence to prove that the injury happened because of the neglect of some other person or persons who were not in the control of the defendants, or by the act of some person for whose conduct they were not liable * * *.' It is appellant's contention that by refusing to give these instructions the court failed to invoke the theory of 'strict liability' and might have misled the jury into believing that some third persons, not respondents, were responsible.

Appellant admits that this court is committed to the principle that the doctrine of res ipsa loquitur merely allows the fact finder to infer negligence from the happening of the event and in the absence of explanation might compel a finding of negligence. White v. Pinney, 99 Utah 484, 108 P.2d 249; Curby v. Bennett Glass & Paint Co., 99 Utah 80, 103 P.2d 657; and Angerman Co., Inc., v. Edgemon, 76 Utah 394, 290 P. 169, 79 A.L.R. 40. Since, in spite of the fact that the court instructed the jury on the doctrine of res ipsa loquitur the jury found for defendants, appellant argues that under the facts of this case the inference of negligence was so strong that the jury was compelled to find defendants negligent and since no explanation absolving defendants was given, the verdict of the jury was against the law.

We cannot agree with this contention. The doctrine of res ipsa loquitur merely allows an inference of negligence from the happening of the accident. The happening of the accident and the surrounding circumstances may, as in any other case, so conclusively show negligence that a...