Hash v. Mont. Power Co.

No. 12537

I N THE SUPREME C U T O THE STATE O M N A A OR F F OTN

A. G. HASH, d/b / a H S CONSTRUCTION COMPANY, AH

P l a i n t i f f and A p p e l l a n t ,

-vs - MONTANA P W R COMPANY, O E

Defendant and Respondent.

Appeal from: D i s t r i c t Court o f t h e S i x t h J u d i c i a l D i s t r i c t , Honorable W. W. L e s s l e y , Judge p r e s i d i n g .

Counsel of Record:

For A p p e l l a n t :

David W. DePuy, L i v i n g s t o n , Montana Bennett and B e n n e t t , Bozeman, Montana Lyman H . B e n n e t t , Jr. appeared and Lyman H . B e n n e t t , 1 1 1 argued, Bozeman , Montana

For Respondent :

Berg, Angel, Andriolo and Morgan, Bozeman, Montana Richard J. Andriolo appeared and Gregory 0. Morgan argued, Bozeman, Montana

Submitted: A p r i l 24, 1974

Decided : qflk 2 4 1974

Mr. Chief J u s t i c e James T . H a r r i s o n d e l i v e r e d t h e Opinion of t h e Court.

Hash C o n s t r u c t i o n Company b r o u g h t a c t i o n i n t h e d i s t r i c t

c o u r t o f P a r k County t o r e c o v e r damages i n t h e amount o f $46,793.83 f o r a f i r e o r i g i n a t i n g i n t h e e l e c t r i c a l m e t e r box on i t s prop-

e r t y e a s t of L i v i n g s t o n , Montana on August 29, 1970, and t o which d e f e n d a n t Montana Power Company p r o v i d e d t h e e l e c t r i c i t y . A t t h e c l o s e o f a l l t h e e v i d e n c e , p l a i n t i f f moved f o r a d i r e c t e d

v e r d i c t on t h e b a s i s of r e s i p s a l o q u i t u r , which motion was t a k e n under a d v i s e m e n t . The c a s e t h e n was s u b m i t t e d t o t h e j u r y ; a

v e r d i c t i n f a v o r o f d e f e n d a n t Montana Power Company was r e t u r n e d ; and judgment was e n t e r e d a c c o r d i n g l y . P l a i n t i f f t h e r e u p o n moved f o r judgment n o t w i t h s t a n d i n g t h e v e r d i c t , a g a i n on t h e b a s i s o f r e s i p s a l o q u i t u r , o r , i n t h e a l t e r n a t i v e , f o r a new t r i a l . The motion was d e n i e d .

P l a i n t i f f s u b s e q u e n t l y p e r f e c t e d t h i s a p p e a l and r a i s e s three issues: (1) Whether t h e d i s t r i c t c o u r t e r r e d i n f a i l i n g

t o g r a n t a d i r e c t e d v e r d i c t i n f a v o r of p l a i n t i f f on t h e b a s i s o f res i p s a l o q u i t u r . ( 2 ) Whether t h e d i s t r i c t c o u r t e r r e d i n f a i l i n g t o g r a n t a d i r e c t e d v e r d i c t f o r p l a i n t i f f on grounds of a l l e g a t i o n s of n e g l i g e n c e . ( 3 ) Whether t h e e v i d e n c e was s u f f i c i e n t t o s u p p o r t a j u r y v e r d i c t i n f a v o r of d e f e n d a n t .

The f a c t s a r e :

An e a r l i e r f i r e o c c u r r e d i n t h e meter box l o c a t e d on p l a i n t i f f ' s p r o p e r t y i n F e b r u a r y 1970. Walford L i n d q u i s t , an

employee of Montana Power Company, came t o p l a i n t i f f ' s p r o p e r t y t o d i s c o n n e c t t h e power and remove t h e damaged m e t e r . A f t e r re-

moving t h e m e t e r , he d i s c o v e r e d t h e remains of a dead mouse i n t h e m e t e r box and t h o u g h t it t o be t h e p o s s i b l e c a u s e of t h e f i r e . F u r t h e r i n v e s t i g a t i o n by L i n d q u i s t r e v e a l e d an a c c e s s from w i t h i n

p l a i n t i f f ' s b u i l d i n g t o t h e m e t e r box which would a l l o w f o r e i g n o b j e c t s t o e n t e r t h r o u g h t h e r e a r of t h e m e t e r box.

Plaintiff hired Cissel Electric to perform the work of replacing the damaged meter box. Lindquist showed Cissel Elec- tric the dead mouse he had found in it. After Cissel Electric had completed its work, Lindquist returned to plaintiff's prop- erty,connected the service drop, and installed a new meter. The second fire, which occurred some six months after the new box and meter had been installed, was investigated by Dr. J. L. Knox, an electrical engineer at Montana State University, and his report was admitted into evidence on behalf of plaintiff. In essence, Dr. Knox testified that, in his opinion, the fire was caused by a power surge coming over and through the power line owned by defendant, and when the power surge reached plain- tiff's property, it resulted in a short circuit and a fire. He hypothesized that the collision of descending and returning ex- cessive waves of electricity during the power surge was responsible for melting the service wire which came from defendant's utility pole into the weatherhead on plaintiff's building. An investigation of the fire was also conducted by Glen Wheeler, an electrical engineer employed by defendant; Robert Leo, an electrical engineer at Montana State University; and John Yost, an electrician employed by Montana Power Company. Wheeler and Yost testified for defendant and they disagreed with the surge theory proposed by Dr. KnoX. In their opinion, this fire was the result of foreign materials accumulating in the meter box which resulted in arcing and subsequently fire. Leo in partic- of ular testified that because/lightning arresters and transformers in the line, a power surge of the magnitude testified to by Dr. Knox would have dissipated by the time it reached plaintiff's property. Neither Wheeler nor Leo was able to find any evidence to support Dr. Knox's surge theory. There were no unusual fluc- tuations on defendant's voltage chart which monitors the power

system at Livingston, nor records indicating that other customers on the line serving plaintiff's property also complained of trouble on the day of the fire. Yost testified that, in his opinion, the break in the service wire was due to stress and not melting. This Court many times has said that certain elements are necessary in res ipsa loquitur cases: (1) the defendant having exclusive control of the offending instrumentation possesses the knowledge of the cause of the accident, and the plaintiff does not; (2) the injured person must be without fault; (3) that the injury would not ordinarily occur if the defendant, the one hav- ing control, had used ordinary care; and (4) the thing that causes the injury must be in the exclusive control of the defendant at the time of the injury. Bostwick v. Butte Motor Co., 145 Mont. 570, 589, 590, 403 P.2d 6i4. We hold the doctrine of res ipsa loquitur is not appropriate in the instant case and consequently the district court did not err in denying plaintiff's motion for a directed verdict. Superior position of defendant. Plaintiff's contention that defendant is in a better position to explain the fire of August 29, 1970, is not persuasive. The weatherhead meter box and related wiring had all been installed by the electrician at the request of plaintiff. Plaintiff complained that after the meter was installed it did not have any opportunity to inspect the box, yet Hash, plaintiff's owner, testified unequivocally that he did not at any time after the box was installed make an effort to inspect it. The box was on plaintiff's building, sup- plying power to its machinery and lighting, but nevertheless it is argued that defendant is in a better position than plaintiff to explain the cause of the accident. The meter box was separated by a thin wall from the inside of the building. Through that

wall, on an earlier occasion, a mouse entered, apparently causing electrical damage. It cannot be denied that plaintiff is in exclusive control of the wiring, circuit breakers and other electrical devices within the building. Therefore, it is senseless to argue that it is not in control of the weatherhead and meter box installed by an independent electrician at its request. To hold that defendant must supply an explanation for every fire that occurs on private property to which it supplies electricity, when it can be shown that the fire developed through arcing in the meter box would have virtually the force and effect of making defendant strictly liable for injuries which occur without proof of negligence on its part. Even if it might be determined that a power company is in the same relative position to the general public as that of a common carrier and, therefore, as a matter of public policyfit should be required to explain accidents which occur through its equipment, this case does not fall within that principle. The fire occurred on plaintiff's property within equipment owned by it. There is no reason to believe that defendant is in a better position to explain how the accident happened than is plaintiff. Faultless plaintiff. The evidence reveals that plaintiff was not entirely free from responsibility for the fire. On cross- - examination Dr. Knox, plaintiff's expert witness, testified: "A. It is my understanding that the weatherhead, the conduit, the cable leading to it and the meter base are all installed by the electrician hired by the consumer. "Q. That would be the owner's electrician in- stalls what you have marked here as the weather- head, the wires that come out of the weatherhead and the wires that extend down that weatherhead into the meter base, together with all of the other wiring from the meter base into the build- ing? A. That is my understanding of the current practice." Dr. Knox's expert opinion was that the most likely cause

of the arcing within the meter box was a power surge, yet upon further cross-examination he testified: "Q. Dr. Knox, have you had much experience work- ing with 480 volt circuits? A. I have had a reasonable amount of experience. My work with Firestone Tire and Rubber Company involved quite a lot of 480, or 440 it was in those days. "Q. Now Dr. Knox, could moisture accumulating in the meter box cause a short within the meter base here? What I am referring to is not the meter but the meter base, which is Plaintiff's Exhibit 2? A. An accumulation of moisture coupled with contaminants that might get into the moisture could cause a bridging across insulation and eventually causing a breakdown, yes. "Q. So a short within this box could have occurred from moisture accumulation within the box? A. Moisture plus other contaminants. Pure water is not a conductor. "Q. So that also is another explanation for the short which occurred in this box on August 29, 1970, as well as your power surge explanation? A. That would be a possibility. "Q. Now what about a loose connection within the box, Dr. Knox? A. Yes, any connection between ground and one of the hot conductors could cause an arcing to be established. "Q. What about foreign matter in there, dirt, dust, straw, this type of thing; a mouse. A. Foreign matter of sufficient conductivity in the right places could cause it." The insurance report prepared by Dr. Knox indicated that incident to an earlier fire, a short in the meter box had been caused by a mouse. There is ample evidence that the meter box and related parts were vulnerable to foreign objects entering. The jury could reasonably conclude that moisture, a loose con- nection, a mouse, or any kind of foreign matter could have caused arcing which resulted in the later fire. Evidence the injury would not ordinarily occur without negligence. There is a dearth of evidence in the record tending to establish that the fire was an accident which ordinarily would not have happened without negligence on the part of defendant. Plaintiff attempts to satisfy the third element of - res

i p s a l o q u i t u r s o l e l y on t h e b a s i s o f D r . Knox's h y p o t h e s i z e d power surge. Y e t t h e r e i s no c r e d i b l e e v i d e n c e t h a t a power s u r g e i n and o f i t s e l f i s a r e s u l t o f n e g l i g e n c e on t h e p a r t o f d e f e n d -

ant. Moreover, t h e j u r y a p p a r e n t l y doubted whether i n f a c t t h e r e was a power s u r g e . None was n o t i c e d by o t h e r u t i l i t y c u s -

tomers o r b r o u g h t t o d e f e n d a n t ' s a t t e n t i o n on t h e day of t h e f i r e . There were no d e f e c t s found i n t h e s e r v i c e l i n e s , m e t e r o r t r a n s -mission f a c i l i t i e s . August 29, 1970 was a c l e a r d a y i n t h e L i v i n g s t o n a r e a , w i t h no s t o r m s o r o t h e r t u r b u l e n c e .

The j u r y r e j e c t e d t h e power s u r g e theory, a s it had a p e r f e c t r i g h t t o d o , s i n c e i t was c o n t r a d i c t e d and n o t s u p p o r t e d

by o t h e r e v i d e n c e . There was no s u b s t a n t i a l e v i d e n c e upon which t h e d i s t r i c t c o u r t c o u l d c o n c l u d e t h a t r e a s o n a b l e men might f i n d d e f e n d a n t r e s p o n s i b l e t h r o u g h i t s n e g l i g e n c e f o r a power s u r g e .

S i n c e we have concluded t h i s i s n o t a r e s i p s a l o q u i t u r c a s e , t h e q u e s t i o n o f t h e p r o c e d u r a l impact of t h a t d o c t r i n e i n

Montana need n o t be c o n s i d e r e d . The f i n a l i s s u e i s t h e s u f f i c i e n c y of t h e e v i d e n c e t o

support t h e verdict. A defendant i s n o t required t o r e b u t a l l o f t h e p l a i n t i f f ' s e v i d e n c e b u t i n s t e a d need o n l y p r e s e n t e v i d e n c e from which r e a s o n a b l e men c o u l d c o n c l u d e h i s freedom from negligence. I n o u r view, t h e d i s c u s s i o n o f e v i d e n c e s e t o u t above

s a t i s f i e s t h i s t e s t i n t h a t i t e s t a b l i s h e s t h e r e was ample evidence t o support t h e jury v e r d i c t f o r defendant. The j u r y was g i v e n t h e o p p o r t u n i t y t o c o n s i d e r a l l of t h e

e v i d e n c e and was under i n s t r u c t i o n s which were f a v o r a b l e t o p l a i n - tiff. The j u r y d e t e r m i n e d d e f e n d a n t was n o t l i a b l e . W agree. e Whether t h e d i s t r i c t c o u r t e r r e d i n f a i l i n g t o g r a n t p l a i n t i f f ' s motion f o r a d i r e c t e d v e r d i c t on t h e grounds of

a l l e g a t i o n s of n e g l i g e n c e c a n be d i s p o s e d of simply: There i s no i n d i c a t i o n t h i s i s s u e was e v e r r a i s e d i n t h e d i s t r i c t c o u r t . It is fundamental that objections urged for the first time on

appeal will not be considered by this Court. The judgment is af£irmed.

chief Justice