Wilson v. Paul

• Decision Date: 05 May 1970
• Docket Number: No. 53797,53797
• Citation: 176 N.W.2d 807
• Parties: Robert C. WILSON and Eva I. Wilson, Husband and Wife, Appellants, v. Ernie PAUL and Vivian E. Williams, Executor of the Estate of Harold Williams, Deceased, Appellees.
• Court: Iowa Supreme Court

Page 807

176 N.W.2d 807

Robert C. WILSON and Eva I. Wilson, Husband and Wife, Appellants, v. Ernie PAUL and Vivian E. Williams, Executor of the Estate of Harold Williams, Deceased, Appellees.

No. 53797.

Supreme Court of Iowa.

May 5, 1970.

Robert E. Ford, Ford, Terpstra & Wilkinson, Cedar Rapids, for appellants.

James W. Crawford and Gene V. Kellenberger, Cedar Rapids, for appellees.

STUART, Justice.

Plaintiffs' apartment house was damaged by fire while under construction. They brought action against the plumbing contractor and his employee. The trial court submitted one specification of negligence to the jury which returned a defendants' verdict. Plaintiffs appeal from the judgment entered thereon claiming the trial court erred in refusing to submit the theory of res ipsa loquitur and other specifications of negligence to the jury. We reverse and remand for new trial because of the court's failure to submit res ipsa loquitur.

I. In order for the doctrine of res ipsa loquitur to apply, plaintiff must establish the cause of the fire. '* * * (T)he doctrine of res ipsa loquitur does not raise any (inference) as to what did occasion the injury; but, after the evidence has established the thing which did occasion the injury, then under certain circumstances, this doctrine will raise (an inference) of negligence.' Orr v. Des Moines Elec. Light Co. (1928), 207 Iowa 1149, 1155, 222 N.W. 560, 562. ¹

'* * * (T)he mere occurrence of a fire with resultant injuries does not permit an inference of negligence', Dodge v. McFall (1951), 242 Iowa 12, 15, 45 N.W.2d 501, 503, but 'where the circumstances under which the fire originated and spread are such as to show that defendant or his servants were negligent in connection therewith', the doctrine may apply. 65A C.J.S. Negligence § 220.25 p. 617. 35 Am.Jur.2d 630, Fires § 51. See Connecticut Fire Insurance Co. v. Gusman (1966), 259 Iowa 271, 144 N.W.2d 333, 336; John Rooff & Sons, Inc. v. Winterbottom (1957), 249 Iowa 122, 132--133, 86 N.W.2d 131, 138.

'The evidence as to the cause of the fire is largely circumstantial. We are committed to the rule that in such cases the evidence must be such as to make plaintiff's theory of causation reasonably probable, not merely possible, and more probable than any other theory based on such evidence. It is not necessary for the testimony to be so clear as to exclude every other possible theory.' John Rooff & Sons, Inc. v. Winterbottom, supra, 249 Iowa at 126, 86 N.W.2d at 134.

There was evidence from which the jury could find the facts now summarized. Williams Plumbing and Heating of Marion had the plumbing contract for an eight unit apartment house plaintiffs were building. Paul, hereinafter referred to as defendant, was the head plumber for Williams and did all the plumbing on the apartment house pertinent to this action.

By July 13, 1966, the building was about 90% Completed. On that date defendant was installing fixtures on the second floor. The only work remaining upstairs other than the plumbing was carpeting, some painting and minor adjustments. No carpenters were working upstairs on the day of the fire. The building had not been connected to the electrical power supply at that time.

Defendant was the only plumber working that day. He was hooking up drain and water lines to the fixtures in the kitchens and bathrooms. Shortly before noon and immediately after noon he was working on the kitchen sinks in the two west apartments, which sat back to back with a common set of pipes. The rough plumbing and the walls through which the pipes emerged were completed.

Defendant was using a blow torch to heat the parts to be connected to a least 450 so the solder would properly melt and seal the joint. He was required to work very close to the wall which consisted of noninflammable sheet rock over inflammable sound board, 2 4's and paper covered insulation around the pipes.

As defendant was leaving work a little after 5 o'clock, he smelled smoke. He checked outside to see if something was burning and found no fire. He then testified: 'I went around and checked my areas where I had been working, looked at the inside of each apartment and I didn't see no smoke so I went back out and started loading my tools up again. About that time I heard a cracking noise, sounded like it was up in the southwest corner apartment, so there's where I went up and I seen fire coming up the wall. I was able to see the fire through the wall outlets adjacent to the sink. The cover plate wasn't on and the fire was coming up. I am not sure that when I first smelled smoke that I checked this southwest upper apartment, I could have missed it. There's 8 apartments. When I saw the flames coming up this was in the southwest upper apartment. I next ran down to the next apartment building of Mr. Wilson's, the eightplex, and knocked on two or three people's doors and told them to call the fire department. Then I ran back. Mr. Wilson had a garden hose in the yard with a sprayer on it. I cut that off, hooked the hose, ran upstairs, knocked the hole in the wall and put out most of the fire, I thought. I knocked a hole in the wall with a hammer. This was immediately in the area where the sink was. I that wall, right in front of the sink. The whole wall was smoke and smoke was pouring out all over it. I put the fire hose in this hole and doused whatever I could. The fire was burning up the wall inside. The flames were confined to the inside of the wall. I also put water in the outlet--sprayed water all over there trying to get it out.'

James Reynolds, Marion Fire Chief and a deputy fire marshal for the State of Iowa, made an electrical inspection of the building at 3 o'clock in the afternoon the day of the fire, he testified: 'For purposes of this fire that building was dead (electrically).' After the fire he made an inspection to determine the origin and cause of the fire. His investigation included an interview with defendant. He reached the conclusion that 'the point of origin was where the plumbing pipes were coming out where he was sweating these joints within the 2 4's 16 inches apart'.

'When I investigated into the wall area, there were no materials in the wall that I could have considered as giving rise to any internal combustion and with no electricity in the building, I also ruled out any electrical involvement and there is no other factor that was present that could have contributed to this fire other than the torch of the plumber.'

'From my investigation after the fire, based on my conversations with Mr. Paul and his testimony here in the court room and based on my experience and training as to the cause of the fire I have an opinion as to the cause of this fire. My opinion is that I believe a spark from the plumber's torch set fire to the wall. This burned for some time before being noticed.'

On cross-examination he expressed the opinion that the fire had burned three or four hours before it was discovered.

There were several other persons in the building during the day, but no one but defendant was working in the immediate area where the fire started or on the second floor of the building. Plaintiffs' evidence did not exclude the possibility that other persons might have been in the west second floor apartments between the time defendant finished his work and the time the fire was discovered.

In our opinion the evidence quite satisfactorily takes this case out of the general rule that the mere occurrence of a fire raises no inference of negligence. The circumstances and the expert's testimony pinpoint the place where the fire originated and certainly makes defendant's torch more probably the cause of the fire than any other theory.

II. 'The two foundation facts for application of the res ipsa doctrine, which permits an inference of defendant's negligence from the happening of the injury, are: (1) exclusive control and management by defendant of the instrumentality which causes the injury, and (2) the occurrence is such as in the ordinary course of things would not happen if reasonable care had been used.' Boyer...