Van Ornum v. Otter Tail Power Co.

• Decision Date: 10 August 1973
• Docket Number: No. 8846,8846
• Citation: 210 N.W.2d 188
• Parties: Louise VAN ORNUM, Individually and on behalf of her children, et al., Plaintiff and Appellant, v. OTTER TAIL POWER COMPANY, a foreign corporation, et al., Defendants and Respondents. Civ.
• Court: North Dakota Supreme Court

Page 188

210 N.W.2d 188

Louise VAN ORNUM, Individually and on behalf of her children, et al., Plaintiff and Appellant, v. OTTER TAIL POWER COMPANY, a foreign corporation, et al Defendants and Respondents.

Civ. No. 8846.

Supreme Court of North Dakota.

Aug. 10, 1973.

Syllabus by the Court

1. The deposition of a party, or of anyone who at the time of taking the deposition was an officer, director, superintendent, or managing agent of a public or private corporation, partnership, or association or governmental agency which is a party, may be used by an adverse party for any purpose at the trial, without regard to the availability of such person as witness at the trial.

2. The use of the deposition of a party, or of an officer, director, superintendent, or managing agent of a public or private corporation, partnership, or association or governmental agency, may, however, be limited by the trial court in the exercise of its sound discretion, by requiring counsel to specify what parts of the deposition he deems relevant and limit the reading to those parts, subject to objection by opposing counsel.

3. Evidence of relevant experiments and tests is admissible where such tests are shown to have been made under circumstances similar to those prevailing at the time of the occurrence to which they relate. Admission of such evidence is primarily within the sound discretion of the trial court, and the exercise of such discretion will not be disturbed on appeal in the absence of abuse.

4. Where original tests are conducted under mistaken belief in facts, and subsequent tests made with knowledge of facts unknown at time of original tests are conducted by a person competent to perform them; where conditions are shown to be the same as those prevailing at the time of the occurrence to which they relate; where the results of the subsequent tests are relevant to an issue in the case and the tests are shown to have been honestly and fairly made; the results of such tests, if they achieve the principal object of ascertaining the truth relative to the existence or nonexistence of facts important in the controversy, should be admitted in evidence for consideration of the jury.

5. The general rule that a party may not impeach his own witness does not mean that the party calling the witness is bound by the witness's version of the material facts as correct. Such party may prove material facts by other competent evidence, even though the effect of such evidence is to contradict his own witness.

6. Where plaintiff offered evidence of subsequent repiar to prove defendants' negligence, it was not error for the court to deny such offer of proof. The fact that such evidence may be admissible for purposes other than that for which it is offered will not make it admissible. The party offering the evidence has burden of showing purpose for which evidence is admissible. The court need not look beyond the purpose for which evidence is offered to determine its admissibility.

7. An architect is not strictly liable for defective designs of a project. He is liable for negligence only in failing to exercise the ordinary skill of his profession in the designing of the project, when judged by the standard set by the learning, skill, and care ordinarily possessed and exercised by others in the same profession in the same general locality.

8. Where the intention of the parties to a contract cannot be determined from the terms of the contract because its terms are somewhat ambiguous, such determination becomes the duty of the trier of fact. Whether an anbiguity exists in the agreement must first be determined by the court as a matter of law but determining the actual intention of the parties becomes the task of the trier of fact.

9. Under the evidence in the case, an instruction requested by the plaintiff on the issue of willful and wanton misconduct of defendants was properly denied by the trial court.

10. For reasons stated in the opinion, the action of the trial court in directing a verdict in favor of the defendant Otter Tail Power Company at the close of the plaintiff's case was error.

Ohnstad, Twichell, Breitling & Arntson, West Fargo, and Wattam, Vogel, Vogel & Peterson, Fargo, for plaintiff and appellant.

Ottmar & Nething, Jamestown, and Field, Arvesen, Donoho, Lundeen & Hoff Fergus Falls, Minn., for defendant and respondent Otter Tail Power Co.

Hjellum, Weiss, Nerison, Jukkala & Vinje, Jamestown, for defendants and respondents Gilbert E. Horton and Kent H. Horton.

STRUTZ, Chief Justice.

The plaintiff, as surviving wife, brought this action under the North Dakota Death by Wrongful Act statute, Chapter 32--21, North Dakota Century Code. Her husband, a licensed master plumber, at the time of his death was an employee of Pfaff Sheet Metal, an Enderlin firm which had been the successful bidder on part of the work in constructing an addition to the Jamestown High School. The deceased was acting as foreman for his employer on the project.

The accident occurred early in the morning of November 3, 1967, in a sump room in the basement of the new addition. This room was located just off the swimming pool area. The plaintiff's husband had descended into the sump to assist another man, and both had lost consciousness. The cause of their difficulty is in dispute. An employee of another contractor went to their assistance and he, too, was overcome but later was revived. Rescue attempts to revive the others were unsuccessful.

The defendant Otter Tail operated a gas-distributing system in the city of Jamestown, and Jamestown High School was one of its customers. During the summer and early fall of 1967, while the school addition was under construction, the deceased, on several occasions, had told one of the architects on the project that he had detected an odor of some kind in the sump and that he was having difficulty breathing while working in that place. The architect thereupon requested Otter Tail to conduct tests for the presence of gas in the sump. On September 19, 1967, employees of Otter Tail located a gas leak in a service line leading from the main line in the street adjacent to the high school. They dug down to the leak, cut the service line, and capped it. This leak was located approximately fifty to sixty feet from the nearest wall of the school building. Tests made at that time resulted in no readings which disclosed any gas at any point farther than ten feet from the point of the leak. No other leaks were ever discovered in the area of the high school, either before or after September 19.

Odors persisted in the sump, however, and on October 6, 1967, almost one month before the date on which the plaintiff's husband died, a gas expert from Otter Tail, with an assistant, tested the air in the sump to determine whether it was explosive. Using a mine-safety device, these men received a 100 per cent explosive reading. The expert asserts that he informed the architects of this reading, which assertion is denied by the architects. At the trial, this expert testified that he had conducted two separate tests on the 6th day of October 1967 and had received the 100 per cent explosive reading on the first test. A negative reading was received on the second test made later in the day. Neither Otter Tail nor the architects at any time notified the fire department or the State Fire Marshal's office of the difficulties encountered in the sump.

Following the accident on November 3, further tests of the atmosphere in the sump and at other locations at the school were made by Otter Tail and by persons from the Workmen's Compensation Bureau and the Jamestown fire department. These tests included those made with mine-safety-appliance explosi maters, which tests revealed the presence of 100 per cent explosive atmosphere in the sump. On November 4, the day after the accident, the State Toxicologist, Richard Prouty, took samples of air from the sump. He was not advised that the gas being distributed to Jamestown residents by Otter Tail had a propane base. The tests which he conducted did not disclose explosive gas, and he attributed the death of the plaintiff's husband to a lack of oxygen. The toxicologist, however, did not test for the presence of propane gas until just prior to the trial of this action. The results of such subsequent tests were excluded by the trial court. The failure to admit these subsequent tests relative to the presence of propane gas in the sump is claimed as error by the appellant. Readings which disclosed a high explosive content resulted from various tests taken of the sump atmosphere following the accident. Such readings persisted until the walls of the sump were sealed and a ventilating system was installed. The trial court sustained Otter Tail's objection to evidence showing these changes, and another of the issues presented on this appeal is whether the court properly excluded evidence showing the alterations made subsequent to the accident.

The record further discloses that for some months prior to the date of the accident, Pfaff Sheet Metal, the employer of plaintiff's husband, had maintained on the premises a 100-pound tank of propane gas, several 20-pound tanks of propane gas, and several 1-pound hand tanks of this substance. The propane in these tanks was from a source other than Otter Tail. The gas in these tanks was used by the deceased and other employees of Pfaff in connection with their work on the project. On several occasions prior to the accident, the deceased's employer had talked with the deceased about the odors of which he was complaining, and the employer identified such odors as being sewer gas.

The trial court ordered the action dismissed against Otter Tail at the conclusion of the plaintiff's case, but permitted the case against the architects, the defendants Horton, to go to the jury. The jury returned its verdict for the defendants, and judgment was entered thereon. This appeal is by ...