Hash v. Montana Power Co.

524 P.2d 1092, 164 Mont. 493, 1974 Mont. LEXIS 530
CourtMontana Supreme Court
DecidedJuly 24, 1974
DocketNo. 12537
StatusPublished
Cited by3 cases

This text of 524 P.2d 1092 (Hash 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
Hash v. Montana Power Co., 524 P.2d 1092, 164 Mont. 493, 1974 Mont. LEXIS 530 (Mo. 1974).

Opinion

MR. CHIEF JUSTICE JAMES T. HARRISON

delivered the Opinion of the Court.

Hash Construction Company brought action in the district court of Park County to recover damages in the amount of $46,793.83 for a fire originating in the electrical meter box on its property east of Livingston, Montana on August 29, 1970, and to which defendant Montana Power Company provided the electricity. At the close of all the evidence, plaintiff moved for a directed verdict on the basis of res ipsa loquitur, which motion was taken under advisement. The ease then was submitted to the jury; a verdict in favor of defendant Montana Power Company was returned; and judgment was entered accordingly. Plaintiff thereupon moved for judgment notwithstanding the verdict, again on the basis of res ipsa loquitur, or, in the alternative, for a new trial. The motion was denied.

Plaintiff subsequently perfected this appeal and raises three issues: (1) Whether the district court erred in failing to grant a directed verdict in favor of plaintiff on the basis of res ipsa loquitur. (2) Whether the district court erred in failing to grant a directed verdict for plaintiff on grounds of allegations of negligence. (3) Whether the evidence was sufficient to support a jury verdict in favor of defendant.

The facts are:

An earlier fire occurred in the meter box located on plaintiff’s property in February 1970. Walford Lindquist, an employee of Montana Power Company, came to plaintiff’s property to disconnect the power and remove the damaged meter. [495]*495After removing the meter, he discovered the remains of a dead mouse in the meter box and thought it to be the possible cause of the fire. Further investigation by Lindquist revealed an access from within plaintiff’s building to the meter box which would allow foreign objects to enter through the rear of the meter box.

Plaintiff hired Cissel Electric to perform the work of replacing the damaged meter box. Lindquist showed Cissel Electric the dead mouse he had found in it. After Cissel Electric had completed its work, Lindquist returned to plaintiff’s property, 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 plaintiff’s property, it resulted in a short circuit and a fire. He hypothesized that the collision of descending and returning excessive 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 particular testified that because of lightning arresters and transformers in the line, a power surge of the magnitude testified to by Dr. Knox would have [496]*496dissipated 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 fluctuations 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 having 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 614. 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, supplying 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. [497]*497Through 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 policy, it should be required to explain accidents which occur through its equipment, this ease 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.

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Cite This Page — Counsel Stack

Bluebook (online)
524 P.2d 1092, 164 Mont. 493, 1974 Mont. LEXIS 530, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hash-v-montana-power-co-mont-1974.