Tedrow v. Fort Des Moines Community Services, Inc.

• Decision Date: 17 September 1962
• Docket Number: No. 50681,50681
• Citation: 117 N.W.2d 62,254 Iowa 193
• Parties: Vernon TEDROW, as Administrator of the Estate of Rose Marie Tedrow, Deceased, Appellee, v. FORT DES MOINES COMMUNITY SERVICES, INC., and Bruno Ceretti, Appellant.
• Court: Iowa Supreme Court

Page 62

117 N.W.2d 62

254 Iowa 193

Vernon TEDROW, as Administrator of the Estate of Rose Marie Tedrow, Deceased, Appellee, v. FORT DES MOINES COMMUNITY SERVICES, INC., and Bruno Ceretti, Appellant.

No. 50681.

Supreme Court of Iowa.

Sept. 17, 1962.

Bradshaw, Fowler, Proctor & Fairgrave, Des Moines, for appellant, Fort Des Moines Community Services, Incorporated. Irish & Haughey, Altoona, for appellant, Bruno Ceretti.

Jones, Rockwell & Oliver, Des Moines, for appellee.

THOMPSON, Justice.

This is another of a series of cases arising out of a fire in the Fort Des Moines Housing Area near Des Moines which caused the deaths of five persons: four members of the Tedrow family, and Margaret Anne Hutchinson. The fire, and the death of plaintiff's decedent, occurred on February 16, 1956. Some phases of the tragedy have been before us in four appeals: Hutchinson v. Des Moines Housing Corporation, 248 Iowa 1121, 84 N.W.2d 10; Tedrow v. Des Moines Housing Corporation, 249 Iowa 766, 87 N.W.2d 463; Hutchinson v. Des Moines Housing Corporation, 250 Iowa 1306, 99 N.W.2d 81; and Hutchinson v. Fort Des Moines Community Services, Inc., 252 Iowa 536, 107 N.W.2d 567. The facts have been sufficiently stated in those cases, and we shall not again refer to them in detail. The three Hutchinson cases were all concerned with the attempt of the administrator of the estate of Margaret Anne Hutchinson to recover damages for her claimed wrongful death. The Tedrow case reported in 249 Iowa 766, 87 N.W.2d 463, involved a claim of the administrator of the estate of Margaret Tedrow. In the present case we have involved the estate of Rose Marie Tedrow.

In the appeals in the four preceding cases we have established certain rules which have the effect of precedents in the case at bar. It is true they are not the law of this case in the sense that they are absolutely controlling, since the parties are not the same. But they are strong precedent because they arise from consideration of much the same facts and the same contentions of the opposing parties. We are not disposed at this stage to depart from what we have said in the prior cases. A consideration of the opinions therein filed, particularly in Hutchinson v. Des Moines Housing Corporation, 250 Iowa 1306, 99 N.W.2d 81, leads to the conclusion that the case was properly submitted to the jury as against the defendant Fort Des Moines Community Services, Inc., but that the motion for directed verdict of the defendant Bruno Ceretti, made at the close of all the evidence, should have been granted.

I. In the first Hutchinson case, 248 Iowa 1121, 84 N.W.2d 10, there was involved only questions of pleading. In the Tedrow case, 249 Iowa 766, 87 N.W.2d 463, we upheld directed verdicts in favor of all defendants. Thereafter, the Hutchinson case came on for trial and verdicts were directed in favor of all three defendants; Des Moines Housing Corporation, Fort Des Moines Community Services, Inc., and Bruno Ceretti. Upon appeal, we affirmed as to Des Moines Housing Corporation and Bruno Ceretti; but reversed as to Fort Des Moines Community Services, Inc., holding that the evidence as against it was sufficient to require submission to a jury. In so doing, we determined that the evidence as to the liability of Fort Des Moines Community Services, Inc., was stronger than in the first Tedrow case, supra. Hutchinson v. Des Moines Housing Corporation, 250 Iowa 1306, 1323, 99 N.W.2d 81, 91.

In the instant case, it is apparent that precedent, if followed, requires us to make the same determination as to jury submission as in the Hutchinson case last above referred to, unless there was a difference in the evidence introduced. We shall consider first the record as it bears on the defendant Bruno Ceretti.

II. The only specification submitted in the case at bar was that the defendants were negligent 'by allowing pennies to be placed in the fuse sockets thereby allowing an overload of electricity to flow through the wires thus causing a dangerous condition and a fire hazard.' The record shows substantial evidence that the duty of maintaining the premises in the tavern part of the building leased to Ceretti was upon the defendant Fort Des Moines Community Services, Inc. The tenant by the terms of the lease, was furnished all utilities except telephone, and maintenance and minor repairs devolved upon the lessor. The utilities were to be kept in good operating condition by the Fort Des Moines Community Services, Inc.

We pointed this out in Hutchinson v. Des Moines Housing Corporation, supra, loc. cit. 250 Iowa 1311, 1312, 99 N.W.2d 81, 84. We there said: 'The failure of Fort Des Moines Community Services, Inc., to comply with its agreements, if the jury so finds, cannot therefor be charged to Ceretti. The exception would be if defendants (sic.) produced evidence that Ceretti or his employes had placed the pennies in the fuse wells.' We affirmed a directed verdict for Ceretti in that case, thereby holding there was no such evidence.

Unless we are now to overrule what we said in the Hutchinson case last referred to, we can uphold submission of the issues as to Ceretti in the instant case only if there was some additional evidence against him. The evidence here was substantially the same as in the Hutchinson case, with the exception of the testimony of one Robert Horton, an electrician. He testified that he was called to examine the wiring in the tavern in 1952, and found at that time there were pennies in three fuse sockets, which he removed. He said the circuits were overloaded, and the electrical system was inadequate for the purposes for which it was being used. He told the bartender the circuits were overloaded. This testimony was objected to by both defendants because it was too remote; and by Fort Des Moines Community Services, Inc., because it was not binding upon it. The objections were denied. We shall discuss this evidence further in a following division.

We think it unnecessary to determine the admissibility of the evidence as against Ceretti, however, since in any event it does not show that the pennies which were found in the fuse box after the fire were placed there by him. Those in the fuse box in 1952 were removed by Horton. The incident in no manner supports an inference that the pennies in the box at the time of the fire were installed by Ceretti or that he had knowledge of them. Admissible or not, the testimony did not change the situation as to Ceretti. Under the precedent of Hutchinson v. Des Moines Housing Corporation, supra, 250 Iowa 1306, 99 N.W.2d 81, there was no jury question as to Ceretti and the court was in error in submitting the case against him.

III. The defendant Fort Des Moines Community Services, Inc., hereafter referred to as the defendant, is in a different and less advantageous position. The Hutchinson case, last supra, determined that the evidence there was sufficient to engender a jury question. With this precedent, it would have been strange if counsel for plaintiff in the case at bar, who were the same as in the Hutchinson case, had not attempted to follow the trail so blazed. In fact this was substantially done. For that reason we shall not consider in detail its first assignment of error, which asserts its motion for directed verdict at the close of all the evidence should have been granted. The Hutchinson case is a strong precedent for the ruling of the trial court, and we are not disposed to disturb it.

IV. However, the defendant urges other errors which are assigned as grounds for reversal and which require more discussion. One of these attacks the competency, by which we understand is meant admissibility, of the testimony of the witnesses Horton and Herron. We have referred to the testimony of Horton above. It seems to be the defendant's thought that this referred to a time--1952--too remote from the date of the fire--1956--to have any competency on the question before the jury. It must be kept in mind that one of the specifications of negligence alleged by the plaintiff in his petition was this: 'By failing to make adequate periodic inspection and maintenance of the electrical system.' The court did not in the final event submit this specification to the jury; but at the time Horton's testimony was offered this ruling had not been made and could not be known. We think the testimony had a proper bearing on that issue and was competent in that respect. It tended to show that in 1952 the electrical system was inadequate and overloaded; and in view of the duty of the defendant to furnish utilities and keep them in working order and make minor repairs, it could well be urged that a showing of overload and improper maintenance in prior years could be considered. This is particularly true in view of the testimony of other witnesses that no substantial repairs had been made for some time before the fire. In fact, while the point is not urged, we think it proper to say that this specification of negligence might well have been submitted to the jury.

As to the question of remoteness in time, the rule is well established that this is ordinarily to be determined by the sound discretion of the trial court. Brower v. Quick, 249 Iowa 569, 581, 88 N.W.2d 120, 127; Hall v. West Des Moines, 245 Iowa 458, 468, 62 N.W.2d 734, 740; Hayes v. Chicago, Rock Island & Pacific Railway Company, 239 Iowa 149, 154, 30 N.W.2d 743, 746; Herr v. Lazor, 238 Iowa 518, 525, 28 N.W.2d 11, 15. We find no abuse of discretion here.

V. The witness Herron, the state fire marshal, was permitted to answer a hypothetical question, his answer being that assuming the matters stated in the question to be established, the destructive fire of February 16, 1956, was caused by the pennies in the fuse box. We have examined the record in Hutchinson v. Des Moines Housing Corporation, supra, 250 Iowa 1306, 99 N.W.2d 81. From it we find that the same hypothetical question, in substance was asked of the...