Tedrow v. Des Moines Housing Corporation

87 N.W.2d 463, 249 Iowa 766, 86 A.L.R. 2d 830, 1958 Iowa Sup. LEXIS 488
CourtSupreme Court of Iowa
DecidedJanuary 14, 1958
Docket49325
StatusPublished
Cited by25 cases

This text of 87 N.W.2d 463 (Tedrow v. Des Moines Housing Corporation) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tedrow v. Des Moines Housing Corporation, 87 N.W.2d 463, 249 Iowa 766, 86 A.L.R. 2d 830, 1958 Iowa Sup. LEXIS 488 (iowa 1958).

Opinions

Thompson, J.

Plaintiff’s action is brought as administrator of the estate of his deceased wife, Margaret Tedrow, who met her death in a fire on the early morning of February 16, 1956. Four other persons, including Margaret Anne Hutchinson, were [768]*768also in the second floor apartment of the Tedrows in what is known in the record as Building 318, owned by the General Services Administration of the United States Government and located in the Fort Des Moines area. All of these people also lost their lives in the fire.

We have had occasion to consider some features of a case arising out of the death of Margaret Anne Hutchinson in this same tragedy. See Hutchinson v. Des Moines Housing Corp., 248 Iowa 1121, 1123, 1124, 84 N.W.2d 10, 11. Many of the pertinent facts concerning the leasing and management of the building and the relation of the various defendants are there set forth, and we do not repeat them here.

’ At the close of plaintiff’s evidence in the case at bar the trial court sustained motions by each of the defendants for directed verdicts. There were certain cross-petitions of the defendants against each other, seeking to shift the liability if liability was found, and a cross-petition of the defendant Bruno Ceretti against the defendant Fort Des Moines Community Services, Inc., claiming damages for the destruction of certain personal property which he owned and used in the conduct of a tavern on the first floor of Building 318, as a tenant. When the motions for directed verdict were granted as against the plaintiff, all cross-petitions were dismissed Avith prejudice, and we have no concern with them here. The appeal is by the plaintiff from judgment upon the peremptory verdicts.

Five errors are assigned for reversal: 1, the court erred in striking subparagraph (a) of paragraph 8 (a specification of negligence) from plaintiff’s petition; 2, 3 and 4, the court erred in granting the motions of each of the three defendants for directed verdict; and 5, the court erred in directing verdicts in favor of the defendants on the ground that the negligence of defendants was not shown to be a proximate cause of plaintiff’s damage so as to engender a jury question. The last four assignments raise substantially the same questions, and will be considered together in Division I following.

I. Plaintiff’s petition was in two counts. The first count relied upon res ipsa loquitur. The second pleaded three specific negligences, of which the first two were stricken upon motion of [769]*769the defendants. Error is predicated upon the ruling striking the first specification, subparagraph (a) of paragraph 8, and this assignment will be considered in a later division of this opinion. No error is claimed upon the ruling striking subparagraph (b) of the same paragraph, and we give it no further attention. The ruling left only one specification, subparagraph (e), which we quote herewith: “By allowing pennies to be placed in the fuse box thereby allowing an overload of electricity to flow through the wires.”

In our view of this case, the evidence which plaintiff thinks supports the application of the res ipsa loquitur doctrine and that which makes a jury question on the specific charge of negligence remaining in Count II is the same. It appears that after the fire a fuse box was found in the ruins of the tavern portion of the building, which had contained nine fuse wells or sockets. The box was badly burned; but in each of three wells was found a one-cent copper coin. Assuming that these coins had been there before the fire, the plaintiff builds his entire case upon them. He argues that pennies are commonly placed in electric sockets to replace fuses; that they are dangerous when so used, since a fuse will blow out when the circuit is overloaded, but a penny will not; and so the insulation may be burned from the electric wires and a short circuit with a very hot electric spark may result. There is some evidence that when the fire was first discovered it was in the tavern portion of the building. There is also evidence from two experts that placing a penny in the fuse well to replace a fuse constitutes a fire hazard. More reference to the testimony of these experts will be made later.

The mere happening of a fire with the resultant injuries raises no presumption of negligence. Dodge v. McFall, 242 Iowa 12, 15, 16, 45 N.W.2d 501, 502, and cases cited. The burden is of course upon one who seeks to recover because of the negligent kindling of a fire to prove such negligence, and this is equally true whether he relies upon the evidentiary doctrine of res ipsa loquitur or upon specific acts. This is elementary. So the plaintiff here carried the burden of making a prima-facie case.

We said in Dodge v. McFall, supra, page 14 of 242 Iowa, page 502 of 45 N.W.2d: “To entitle a plaintiff to the [770]*770benefit of the doctrine of res ipsa loquitur be must establish the way the injury occurred as well as defendant’s control of the instrumentalities involved.” Since plaintiff’s case here goes no further than to show that there were coins in the well sockets which created a fire hazard, we must determine whether he has sufficiently shown the way the injury occurred. The doctrine of res ipsa loquitur does not avail him unless he has made such a showing. A much cited, because it is thorough and well considered, case on this question is Highland Golf Club v. Sinclair Refining Co., 59 F. Supp. 911. There Judge Graven of the United States District Court for the Northern District of Iowa went into the question of the application of the doctrine to fire cases generally. In the course of its discussion the court said, at page 919: “Apart from statute, the Courts have been very reluctant and sparing in drawing an inference of negligence from the starting of a fire.” This, we think, is the general rule. There are of course cases involving fire damage in which the doctrine has been held available. Our own recent case of John Rooff & Sons, Inc., v. Winterbottom, 249 Iowa 122, 133, 134, 86 N.W.2d 131, 138, 139, is one of these. Here the use of an electric torch from which sparks fell above the spot where the fire started was held sufficient evidence of the “foundation facts”, the manner in which the fire started, not only to bring the res ipsa loquitur doctrine into play but to support another count of the petition which claimed specific negligence, so far as to require a jury determination.

But we are unable to find sufficient evidence of the manner in which the fire was kindled here to say that the requirement has been met. Giving the evidence the most favorable interpretation in favor of the plaintiff that it will reasonably bear, as we must, we are unable to find it creates a jury question as to what caused the injury. Orr v. Des Moines Electric Light Co., 207 Iowa 1149, 1155, 222 N.W. 560, 562. We may infer that the pennies were in the fuse wells before the fire, and, although the question becomes more doubtful, that wires led from these sockets. But we do not know that these wires were ever overloaded; that they became heated, or east off sparks, or made a short circuit in any way. Again quoting from the Highland Golf Club case, supra, at page 919 of 59 F. Supp.: “The [771]

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Bluebook (online)
87 N.W.2d 463, 249 Iowa 766, 86 A.L.R. 2d 830, 1958 Iowa Sup. LEXIS 488, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tedrow-v-des-moines-housing-corporation-iowa-1958.