Vogel v. Fetter Livestock Co.

• Decision Date: 01 September 1964
• Docket Number: No. 10658,10658
• Parties: Richard VOGEL, Plaintiff and Respondent, v. FETTER LIVESTOCK COMPANY, a Corporation, Defendant and Appellant.
• Court: Montana Supreme Court

Page 766

394 P.2d 766

144 Mont. 127

Richard VOGEL, Plaintiff and Respondent, v. FETTER LIVESTOCK COMPANY, a Corporation, Defendant and Appellant.

No. 10658.

Supreme Court of Montana.

Submitted April 6, 1964.

Decided Aug. 11, 1964.

Rehearing Denied Sept. 1, 1964.

Wiggenhorn, Hutton, Schiltz & Sheehy, and Joseph P. Hennessey, John C. Sheehy (argued), Billings, for appellant.

Poore, Poore & McKenzie and Urban Roth, Butte, Vogel, Ulmer & Bair, Robert Vogel (argued), Mandan, N. D., for respondent.

CASTLES, Justice.

This is an appeal from a judgment entered after a jury returned a verdict against the defendant in the sum of $80,000.

The action was one for damages to plaintiff resulting from injuries suffered on or about August 10, 1960, while helping to fight a fire in a building on premises owned by Fetter Livestock Company, defendant.

The action was originally filed on March 9, 1962. Defendant's motion for dismissal was overruled by the trial court. The action was tried before a jury which returned a verdict for plaintiff. Defendant's motion for a new trial was denied. This appeal followed.

Defendant, appellant here, is a family farm corporation, operating a farm and ranch business near Harlowton, Montana. Richard Vogel, plaintiff, respondent here, was injured on the farm premises on August 10, 1960, when a burning barn exploded, casting burning debris upon plaintiff and Wallace Fetter, president of the farm corporation.

Prior to the time of the accident, 5:00 P.M. in the evening, plaintiff, Richard Vogel, who was employed as a railroad engineer and was engaged in part-time ranching also, had come to Montana from North Dakota, where he was a resident, for the purpose of looking for a ranch or farm that he might be interested in purchasing. Plaintiff arrived at the Fetter ranch on August 10, 1960, with his wife and a real estate agent. Plaintiff then left the ranch home and went to the scene of a hay-stacking operation, about one mile away from the ranch home so that he could talk to his aunt, Hilda Fetter Morris, also the mother of Wallace Fetter, about the places that he had seen that day and also the ones that he should look at yet.

Upon arriving at the place where the hay was being stacked, plaintiff climbed upon the haystack and helped the others in completing the work and also discussed with his aunt the places he had seen. Plaintiff was there from one-half to one hour when smoke was seen rising from the location of the ranch buildings. Several of the people there, including plaintiff and Wallace Fetter, went to the scene of the fire.

When they arrived, a barn was burning. Immediately, Wallace Fetter inquired of persons standing nearby whether the 'dynamite' had been removed. He was informed that it had. Testimony at the trial showed that, in fact, 'dynamite' had been removed, but there was a conflict as to whether it was 'ditching dynamite' or 'black powder' sticks. Just before the fire started there were four kinds of explosives in the barn: ditching dynamite, black powder sticks, dynamite caps, and garden fertilizer. Wallace Fetter knew of the presence in the barn of these materials but there is some dispute as to whether he knew of the explosive character of the fertilizer when subjected to a high temperature and burning within a confined space. Plaintiff had no knowledge of what was in the burning building.

After inquiring about the dynamite Wallace Fetter attempted to start a gasoline pumping unit in order to pump water on the fire. Plaintiff assisted Fetter. In trying to connect the house to a pipe on the motor, Fetter discovered that they were not the same size. Thereupon, Fetter took off his shirt and threw it to plaintiff asking him to stuff the shirt around the pipe and hose junction in order to seal the escape of water. While plaintiff was in the act of stuffing the shirt around and into the pipe a violent explosion occurred. The explosion threw the barn completely into the air and scattered burning debris in a wide area. The north wall fell upon plaintiff and Fetter, trapping them under the burning wall.

Both plaintiff and Fetter were seriously burned in the accident and were hospitalized. Plaintiff could not work for over a year because of his injuries, but after one year he did return to work for the Northern Pacific Railway Company as an engineer. Three doctors testified as to his permanent disability. One said in examining plaintiff just before he went back to work, that he did not find any limitation of motion or other disabilities to prevent plaintiff from pursuing his occupation as an engineer. The other two doctors testified that plaintiff was going to suffer from a permanent disability of 30-40 percent.

Defendant, appellant, specifies as error the following:

(1) The instructions given to the jury were in error, confusing and misleading:

(a) with respect to proximate cause;

(b) with respect to the status of plaintiff as an invitee; and

(c) with respect to the duty of defendant to warn plaintiff of danger.

(2) The damages of $80,000 were excessive, and the result of passion or prejudice upon the following grounds:

(a) the 'per diem' argument to the jury by plaintiff's counsel was improper and not based upon the evidence in the case; and

(b) the award of $80,000 was excessive under the evidence, and the result of passion and prejudice.

Defendant contends that the instructions with respect to proximate cause given to the jury were in error, confusing and misleading; that a hopeless and irreconcilable conflict exists in the instructions as to the circumstances under which plaintiff was entitled to have a verdict. The instructions in dispute are:

No. 6. 'If in these instructions any rule, direction or idea has been stated in varying ways, no emphasis thereon is intended by me, and none must be inferred by you. For that reason, you are not to single out any certain sentence or any individual point or instruction, and ignore the others, but you are to consider all the instructions as a whole, and to regard each in the light of all others.

'The order in which the instructions are given has no significance as to their relative importance.'

No. 9. 'The burden is upon the plaintiff to prove by a preponderance of the evidence that the defendant was negligent and that such negligence was a proximate cause of injury to the plaintiff.'

No. 13. 'You are instructed that the proximate cause of an injury is that which, in a natural and continuous sequence, unbroken by any new cause, produces the injury, and without which the injury would not have occurred.'

No. 19. 'You are instructed that the plaintiff does not have to prove the allegations of his complaint that are admitted in the answer. Also it is not necessary for the plaintiff to prove all of the acts of negligence alleged in his complaint in order to entitle him to recover, it only being necessary that he establish by a preponderance of the evidence any one or more of the acts of negligence charged in the complaint and that such act or acts proximately caused the injuries complained of.'

No. 20. 'You are instructed that you may not find the defendant negligent in the keeping, storing or use of dynamite or other explosives in this case, unless you find that the defendant did not use that degree of care which would be used by ordinarily prudent persons in the same or similar circumstances in the keeping, storing or use of such dynamite or other explosives.'

No. 21. 'On the other hand, you are instructed that you may find for the plaintiff if you find that the defendant was negligent in the keeping, storing or use of dynamite or other explosives in this case, and if you find that the defendant did not use that degree of care which would be used by an ordinarily prudent person in the same or similar circumstances in the keeping, storing, or use of such dynamite or other explosives.'

No. 23. 'You are instructed that if, under the evidence and the instructions of the Court, your verdict is in favor of the plaintiff and against the defendant, the measure of damages in this case is the amount of money that will reasonably compensate the plaintiff for all loss or injury you find he suffered in person caused by him by reason of the accident, and it will be your duty to assess and write into the verdict the amount of damages which the plaintiff has sustained by reason of the acts set forth in the complaint insofar as they are proven. In determining the amount of damages, you should consider, allow for and make compensation for the injuries you find were suffered by the plaintiff, for all pain and suffering, fears, anxiety, mental and emotional distress, if any, caused by the injuries whether the same be present or past or will endure in the future. You should compensate for all loss of earnings, if any, that you find the plaintiff sustained by reason of his injuries. You should compensate for all impairment of his earning capacity, if you find such, whether such impairment, if any there is, is past at the time of the trial, or is present, or whether it will necessarily remain in the future. You should further consider and allow for and make compensation to the plaintiff for all moneys that he has actually expended or has obligated himself to pay as a result of his said injuries and that were reasonably necessary to be incurred in the treatment thereof, such as physicians, surgeons, hospitals, nurses and medicines, and any additional expense that will be incurred in the future, if you find that such will be incurred, in the payment of physicians, surgeons, hospitals, nurses and medicines in the further treatment of his said injuries and reasonably and necessarily to be incurred therefor. The amount sued for in the complaint as amended should not be to you any criterion of the amount of your verdict if for the plaintiff, but in no event must your verdict be for more than $220,000.00, the amount sued for in the...