Tedrow v. Des Moines Housing Corp.

• Decision Date: 14 January 1958
• Docket Number: No. 49325,49325
• Citation: 86 A.L.R.2d 830,87 N.W.2d 463,249 Iowa 766
• Parties: , 86 A.L.R.2d 830 Vernon TEDROW, as Administrator of the Estate of Margaret Tedrow, Deceased, Appellant, v. DES MOINES HOUSING CORPORATION, Fort Des Moines Community Services, Incorporated, and Bruno Ceretti, Appellees.
• Court: Iowa Supreme Court

Page 463

87 N.W.2d 463

249 Iowa 766, 86 A.L.R.2d 830

Vernon TEDROW, as Administrator of the Estate of Margaret Tedrow, Deceased, Appellant, v. DES MOINES HOUSING CORPORATION, Fort Des Moines Community Services, Incorporated, and Bruno Ceretti, Appellees.

No. 49325.

Supreme Court of Iowa.

Jan. 14, 1958.

Rehearing Denied March 14, 1958.

Oscar E. Jones, Ted W. Rockwell and W. Lawrence Oliver, Des Moines, for appellant.

Bannister, Carpenter, Ahlers & Cooney, Des Moines, for appellee Des Moines Housing Corp.

Bradshaw, Fowler, Proctor & Fairgrave, Des Moines, for appellee Fort Des Moines Community Services, Inc.

Hallagan, Irish & Burt, Des Moines, for appellee Bruno Ceretti.

THOMPSON, Justice.

Plaintiff's action is brought as administrator of the estate of his deceased wife, Margaret Tedrow, who met her death in a fire on the early morning of February 16, 1956. Four other persons, including Margaret Anne Hutchinson, were also in the second floor apartment of the Tedrows in what is known in the record as Building 318, owned by the General Services Administration of the United States Government and located in the Fort Des Moines area. All of these people also lost their lives in the fire.

We have had occasion to consider some features of a case arising out of the death of Margaret Anne Hutchinson in this same tragedy. See Hutchinson v. Des Moines Housing Corporation, Iowa, 84 N.W.2d 10, 11. Many of the pertinent facts concerning the leasing and management of the building and the relation of the various defendants are there set forth, and we do not repeat them here.

At the close of plaintiff's evidence in the case at bar the trial court sustained motions by each of the defendants for directed verdicts. There were certain cross-petitions of the defendants against each other, seeking to shift the liability if liability was found, and a cross-petition of the defendant Bruno Ceretti against the defendant Fort Des Moines Community Services, Inc., claiming damages for the destruction of certain personal property which he owned and used in the conduct of a tavern on the first floor of Building 318, as a tenant. When the motions for directed verdict were granted as against the plaintiff, all cross-petitions were dismissed with prejudice, and we have no concern with them here. The appeal is by the plaintiff from judgment upon the peremptory verdicts.

Five errors are assigned for reversal: 1, the court erred in striking subparagraph (a) of paragraph 8, (a specification of negligence) from plaintiff's petition; 2, 3, and 4, the court erred in granting the motions of each of the three defendants for directed verdict; and 5, the court erred in directing verdicts in favor of the defendants on the ground that the negligence of defendant was not shown to be a proximate cause of plaintiff's damage so as to engender a jury question. The last four assignments raise substantially the same questions, and will be considered together in Division I following.

I. Plaintiff's petition was in two counts. The first count relied upon res ipsa loquitur. The second pleaded three specific negligences, of which the first two were stricken upon motion of the defendants. Error is predicated upon the ruling striking the first specification, subparagraph (a) of paragraph 8, and this assignment will be considered in a later division of this opinion. No error is claimed upon the ruling striking subparagraph (b) of the same paragraph, and we give it no further attention. The ruling left only one specification, subparagraph (c), which we quote herewith: 'By allowing pennies to be placed in the fuse box thereby allowing an overload of electricity to flow through the wires.'

In our view of this case, the evidence which plaintiff thinks supports the application of the res ipsa loquitur doctrine and that which makes a jury question on the specific charge of negligence remaining in Count Two is the same. It appears that after the fire a fuse box was found in the ruins of the tavern portion of the building, which had contained nine fuse wells or sockets. The box was badly burned; but in each of three wells was found a one cent copper coin. Assuming that these coins had been there before the fire, the plaintiff builds his entire case upon them. He argues that pennies are commonly placed in electric sockets to replace fuses; that they are dangerous when so used, since a fuse will blow out when the circuit is overloaded, but a penny will not; and so the insulation may be burned from the electric wires and a short circuit with a very hot electric spark may result. There is some evidence that when the fire was first discovered it was in the tavern portion of the building. There is also evidence from two experts that placing a penny in the fuse well to replace a fuse constitutes a fire hazard. More reference to the testimony of these experts will be made later.

The mere happening of a fire with the resultant injuries raises no presumption of negligence. Dodge v. McFall, 242 Iowa 12, 15, 16, 45 N.W.2d 501, 502, and cases cited. The burden is of course upon one who seeks to recover because of the negligent kindling of a fire to prove such negligence, and this is equally true whether he relies upon the evidentiary doctrine of res ipsa loquitur or upon specific acts. This is elementary. So the plaintiff here carried the burden of making a prima facie case.

We said in Dodge v. McFall, supra, page 14 of 242 Iowa, page 502 of 45 N.W.2d: 'To entitle a plaintiff to the benefit of the doctrine of res ipsa loquitur he must establish the way the injury occurred as well as defendant's control of the instrumentalities involved.' Since plaintiff's case here goes no further than to show that there were coins in the well sockets which created a fire hazard, we must determine whether he has sufficiently shown the way the injury occurred. The doctrine of res ipsa loquitur does not avail him unless he has made such a showing. A much cited, because it is thorough and well considered, case on this question is Highland Golf Club of Iowa Falls, Iowa v. Sinclair Refining Company, D.C., 59 F.Supp. 911. There Judge Graven of the United States District Court for the Northern District of Iowa went into the question of the application of the doctrine to fire cases generally. In the course of its discussion the court said, at page 919: 'Apart from statute, the Courts have been very reluctant and sparing in drawing an inference of negligence from the starting of a fire.' This, we think, is the general rule. There are of course cases involving fire damage in which the doctrine has been held available. Our own recent case of John Rooff & Sons, Inc., v. Winterbottom, Iowa, 86 N.W.2d 131, 138, 139 is one of these. Here the use of an electric torch from which sparks fell above the spot where the fire started was held sufficient evidence of the 'foundation facts', the manner in which the fire started, not only to bring the res ipsa loquitur doctrine into play but to support another count of the petition which claimed specific negligence, so far as to require a jury determination.

But we are unable to find sufficient evidence of the manner in which the fire was kindled here to say that the requirement has been met. Giving the evidence the most favorable interpretation in favor of the plaintiff that it will reasonably bear, as we must, we are unable to find it creates a jury question as to what caused the injury. Orr v. Des Moines Electric Light Company, 207 Iowa 1149, 1155, 222 N.W. 560, 562. We may infer that the pennies were in the fuse wells before the fire, and, although the question becomes more doubtful, that wires led from these sockets. But we do not know that these wires were ever overloaded; that they became heated, or cast off sparks, or made a short circuit in any way. Again quoting from the Highland Golf Club case, supra, at page 919 of 59 F.Supp.: 'The courts recognize that fires are frequent occurrences and in a great many cases without any negligence on the part of anyone.' While the plaintiff has shown a condition which could possibly have caused a fire, it is only conjecture that it did so. There is no evidence that the wires leading from the fuse box became overheated, or that they led to the point where the fire started, which is itself undisclosed except that it was somewhere in the tavern. The plaintiff's experts who were called to show that the use of coins in place of fuses makes a fire hazard would not say that the fire in question was caused by this condition. Zack Cook, employed in the office of the Iowa state fire marshal for 16 years, told of various other things that cause fires, such as 'electric wiring, overheated motors, overloads and smouldering cigarettes depending on whether there is paper in a waste paper basket.' He said that sometimes paper may smoulder for some time before it breaks out in flame. Lloyd Smith, an electric inspector for the city of Des Moines, said that whether the fuse box caused...