Farmers Union Grain Terminal Ass'n v. Montana Power Co.

700 P.2d 994, 216 Mont. 289, 1985 Mont. LEXIS 793
CourtMontana Supreme Court
DecidedJune 7, 1985
DocketNo. 83-433
StatusPublished
Cited by4 cases

This text of 700 P.2d 994 (Farmers Union Grain Terminal Ass'n v. Montana Power Co.) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Farmers Union Grain Terminal Ass'n v. Montana Power Co., 700 P.2d 994, 216 Mont. 289, 1985 Mont. LEXIS 793 (Mo. 1985).

Opinion

MR. JUSTICE WEBER

delivered the Opinion of the Court.

Farmers Union Grain Terminal Association (GTA) appeals a judgment following jury verdict for Montana Power Co. (Montana Power) in the District Court of the Tenth Judicial District, Judith Basin County. We affirm.

The issues presented on appeal are:

Was the evidence sufficient to require a reversal of the jury finding that Montana Power’s negligence was not a proximate cause of the fire that destroyed the GTA elevator?

2. Did the trial court commit reversible error by hampering the GTA expert’s testimony as to the cause of the fire?

3. Did the trial court err in giving two jury instructions to which GTA objected?

The GTA grain elevator was located at Coffee Creek, Montana, about 15 miles from Stanford and 7 miles from Denton. The elevator was cribbed construction, which means that the wooden 2 x 6’s and 2 x 4’s were laid on the flat side, one on top of the other and nailed together. This is a common form of grain elevator construction.

Electrical service to the elevator was furnished by Montana Power through a single-phase transformer, which furnished 110-220 volt power, and through a three-phase transformer, which furnished 208 [291]*291volt power for larger motors. The electric service lines entered through the roof of the scale room and ran through a meter base into which the Montana Power meter was plugged and then into the main breaker box. The meter and breaker box were located on the west wall of the scale room and there were various other electrical boxes located along that west wall.

The Montana Power evidence established that the Montana Power wires attached to the GTA wires on the outside of the elevator, so that the wire and conduit which ran down the west wall of the room to the meter base belonged to GTA. Although the meter belonged to Montana Power, the meter base belonged to GTA. The evidence also established that the conduit, wire, various breaker boxes and electrical equipment located in the scale room belonged to GTA with the single exception of the electric meter.

On the weekend prior to Monday, July 30, 1979, a lightning storm occurred in the Coffee Creek area. Without positive proof, various witnesses assumed lightning had struck the GTA elevator or in its vicinity, causing significant damage to the electric meter located in the scale room. Evidence established that there had been a fire in the scale room that had resulted in some burning along the walls. In addition, a cardboard box of light bulbs on the floor had burned.

On Monday, July 30, Mr. Pemberton, a lineman for Montana Power, came to the elevator to read the meter. He had worked as a lineman in this area for many years. The elevator was not operating at that time, as the prior tenant had terminated its lease and GTA had not yet begun operating the elevator. During this period, the elevator was essentially empty of grain. Mr. Pemberton looked at the meter and saw that it had been damaged, was unreadable and had to be replaced. He also noticed there had been a fire in the cardboard box. Mr. Pemberton testified he saw no damage to any of the electrical equipment except the meter, although he did not check the rest of the equipment, which was owned by GTA.

Later that day Mr. Pemberton received a report that the bulk plant near the elevator had no electric power. He determined that the smaller transformer which served both the elevator and the bulk plant had tripped out. He reset the transformer on Monday and ordered a replacement meter, which was never installed. From Monday to Friday of that week, a number of the prior tenant’s and GTA’s employees were in the elevator.

On Friday, August 3, 1979, after receiving a report that the larger transformer had a red light showing on it, Mr. Pemberton reset the [292]*292larger transformer, which furnished three-phase power. Within a relatively short time after the resetting of that transformer, the elevator was reported to be on fire. Essentially all of the elevator, including the scale room and all the electrical equipment in it were destroyed. The testimony of various witnesses as to their observations before the fire and the interpretation of that evidence by the experts of both sides constituted the evidence as to the cause of the fire.

Following a jury trial, a special verdict was returned indicating that the jury found that the Montana Power Company was negligent, but that the negligence of Montana Power was not a proximate cause of the damage to GTA’s elevator. As a result, judgment was entered for Montana Power. GTA appeals.

I

Was the evidence sufficient to require a reversal of the jury finding that Montana Power’s negligence was not a proximate cause of the fire that destroyed the GTA elevator?

GTA argues that overwhelming evidence established that the fire was caused by the restoration of electricity by the Montana Power lineman. GTA bases its primary argument upon the expert testimony of Dr. Bernstein, a professor of electrical engineering from the University of Wisconsin. Dr. Bernstein’s credentials were extensive with regard to his experience in the theory of electricity, his work in revising electrical codes, investigating approximately 100 fires relating to electrical causes, and testifying in approximately 20 trials on behalf of both plaintiffs and defendants. In addition, he is the author of various publications about lightning caused fires and other causes of electrical fires. In substance, Dr. Bernstein concluded that the conduct of the Montana Power lineman was the cause of the fire. He also indicated another possibility which will be discussed later.

Montana Power relied on the testimony of Mr. Pemberton, the Montana Power lineman who had approximately 20 years of experience as a lineman, including 17 years of experience servicing the GTA elevator. Montana Power also called Mr. Williams, the linemen’s supervisor for Fergus Electric Co-Operative of Lewistown. Mr. Williams had approximately 28 years experience as a lineman. Mr. Ronish, a private business electrician with 30 years of experience, including 11 years as a lineman, was also called.

[293]*293The testimony of these three witnesses directly contradicted parts of Dr. Bernstein’s testimony. As a result, the jury was required to evaluate the testimony of the various experts and determine which portions of the testimony it found more believable.

While GTA argues that its evidence was overwhelming in nature, that is not the standard of review to be applied. As we pointed out in Gunnels v. Hoyt (Mont. 1981), 633 P.2d 1187, 1191, 38 St.Rep. 1492, 1495:

“We review the evidence in a light most favorable to the prevailing party. We will reverse only where there is a lack of substantial evidence to support the judgment.
“Evidence may be inherently weak and still be deemed substantial, and substantial evidence may conflict with other evidence.” (Citations omitted.)

In Jacques v. Montana Nat. Guard (Mont. 1982), [199 Mont. 493,] 649 P.2d 1319, 1325, 39 St.Rep. 1565, 1573-74, citing Galloway v. United States (1943), 319 U.S. 372, 63 S.Ct.

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Bluebook (online)
700 P.2d 994, 216 Mont. 289, 1985 Mont. LEXIS 793, Counsel Stack Legal Research, https://law.counselstack.com/opinion/farmers-union-grain-terminal-assn-v-montana-power-co-mont-1985.