Opinion
No. 35683.
Filed July 23, 1965.
1. Trial: Evidence. Whenever the point is reached at which a trier of fact is being told that which it is itself entirely equipped to determine without a witness' aid, the testimony is superfluous. 2. Trial: Appeal and Error. The overruling of a general objection to, a question will not be disturbed on appeal unless the error was obvious. 3. Judgments: Master and Servant. A judgment exonerating a servant and holding his master liable in, a negligence action against them jointly is self-consistent if it is logically justifiable by a difference in evidence, although liability of the master is only vicarious. 4. Master and Servant. Where the existence of a master-servant relationship is in issue, the right of control is ordinarily a question of fact.
Appeal from the district court for Douglas County: JOHN E. MURPHY, Judge. On motion for rehearing. See 178 Neb. 175, 132 N.W.2d 361, for original opinion. Original opinion withdrawn. Affirmed.
Abrahams, Kaslow, Story Cassman and Robert C. Oberbillig, for appellant.
Gross, Welch, Vinardi, Kauffman Schatz and Haney, Walsh Wall, for appellees Sears et al.
Cassem, Tierney, Adams Henatsch, for appellees Rothenberg et al.
Heard before WHITE, C.J., CARTER, SPENCER, BOSLAUGH, BROWER, SMITH, and McCOWN, JJ.
Fire damage to a building is the subject of this negligence action. Plaintiff-owners recovered a judgment on a verdict against Mid-City Motors, Inc., their lessee, on the theory of a principal's vicarious liability; however, their claim against Service Junk Company, the alleged agent, was dismissed. Mid-City appealed and plaintiffs cross-appealed from the order of dismissal.
The dismissal was affirmed and Mid-City's motion for judgment notwithstanding the verdict was sustained in an opinion at 178 Neb. 175, 132 N.W.2d 361. After reargument we now withdraw that opinion.
Plaintiffs complain that their case against the agent should have been sent to the jury and that the district court erred in sustaining objections to a hypothetical question. Mid-City contends: (1) A quasi-admission was erroneously received in evidence; (2) the judgments for the agent and against the principal are inconsistent; and (3) the existence of a principal-agent relationship is speculative.
Causation is the pivotal issue relating to the dismissal. The sufficiency of evidence depends upon the reasonableness of inferences from a substantial lag between negligence and detection of the fire.
Mid-City rented, stored, serviced, and repaired motor vehicles on the top floor, which was near street level. At points north of center a vertical 6-inch steel pipe passed through the concrete floor and a Celotex ceiling 14 feet high. The conduit and a horizontal connecting 4-inch pipe were anchored by metal brackets attached to wood. They formed part of a sprinkler system which was no longer in use. The Celotex ceiling was nailed to "rafters."
In performance of a contract between the defendants but without notice to plaintiffs, two employees of the salvage company were engaged in removing the pipes on January 9, 1959, the day before discovery of the fire. Work began in the morning but as late as 3 p.m. pipe was being cut with an acetylene torch at a place 4 inches below the ceiling. Since the men used no shields, fragments of molten metal, seen as flying sparks, passed close enough to ignite the Celotex. Upon completion of the day's work some minutes later, they inspected the area except the attic. They found no fire.
Mid-City was conducting its business until 12:30 a.m. the following morning. There was no indication that the Celotex was smoldering. An inspection of vehicles shortly prior to closing was also negative.
The first alarm was given at 1:41 a.m., the second at 1:47 a.m. While approaching the building, firemen noticed smoke and flame aloft and near a 16- by 40-foot skylight in the center of the roof. One of them estimated that the building had been burning at least one-half hour and at most one hour. From a place several feet inside an entrance they saw a red glow in the direction of the ceiling center.
Celotex will not normally flame, but it may smolder indefinitely. In experiments the ceiling material was reduced to ashes by slow combustion at the rate of 1 inch per minute. Odorous gas and smoke were emitted. The process was similar to the action of punk used to light fuses of fireworks.
The ignition temperatures of Celotex and wood are 1,500 and 700 degrees respectively. Steel melts at 2,700 degrees, but an acetylene torch can create heat up to 5,000 degrees.
Since causation is not reasonably inferable, the order of dismissal is right. Difficulty in determining the moment which separates sufficient evidence from insufficient evidence is readily conceded. Yet we are unwilling to say that time counts not at all, that judicial restraint on jury power is mercurial. It is enough that in law the time between pipe cutting and fire detection was too long under the circumstances.
Plaintiffs' other contention is groundless. The hypothetical question ranged far and wide. Counsel for plaintiff's asked their expert witness whether Celotex "could smoulder undetected for a period of ten to twelve hours, and then ignite other material or burst into flame, causing an extensive fire?" General objections were sustained. Later the witness testified that the material may smolder indefinitely.
The excluded evidence was worthless. See, McNaught v. New York Life Ins. Co., judgment reversed on rehearing, 143 Neb. 220, 12 N.W.2d 108; Neal v. Missouri P. Ry. Co., 98 Neb. 460, 153 N.W. 492; Missouri P. Ry. Co. v. Fox, 56 Neb. 746, 77 N.W. 130. "* * * whenever the point is reached at which the tribunal is being told that which it is itself entirely equipped to determine without the witness' aid * * *, his testimony is superfluous * * *." 7 Wigmore on Evidence (3d Ed.), 1918, p. 11.
In returning a verdict-against Mid-City, the jury presumably acted upon some quasi-admissions in a petition which Meeks Rent-A-Car Company had filed on July 19, 1960, in another action against the salvage company. The exhibit was received in evidence against Mid-City alone.
The exhibit alleges that in removal of the pipes the defendant by use of an acetylene torch caused sparks to pierce the Celotex ceiling, that the fire eventually spread to other parts of the building, and that the damage was the proximate result of defendant's negligence in specified particulars.
It was received over objections that it was incompetent, irrelevant, and immaterial; that no foundation had been laid; and that it had been based on information obtained after the fire. Mid-City now contends that it was not identified with Meeks and that the exhibit was signed and verified by an attorney without proof that the client knew the contents.
The first contention has no merit. The corporate name was changed May 14, 1959. A certificate states that the resolution amending the articles of incorporation was adopted at a special meeting attended by all stockholders and directors. It bears the signature of John R. McCormack as secretary of the meeting. Neither certificate nor resolution was impeached. Indeed both were substantially corroborated. The faint suggestion of separate corporations is hardly credible.
The second is rejected on a procedural ground. The pleading was verified by John R. McCormack, attorney for the corporation at the time of the fire. The secretary-treasurer was unaware of the petition, but no further showing appears.
We look at the ruling in its setting. "Review is limited where a general objection has been overruled. It reaches only an obvious flaw; otherwise, specification is required. * * * A trial court possesses a discretion." Campbell v. City of North Platte, 178 Neb. 244, 132 N.W.2d 876. See, also, Kennedy v. Woods, 131 Neb. 217, 267 N.W. 390.
Reception was discretionary in spite of no direct evidence that any agent other than McCormack approved the allegations, particularly where the propriety of an exclusionary ruling on specific objection would be debatable. See, Paxton v. State, 59 Neb. 460, 81 N.W. 383, 80 Am. S. R. 689, judgment sustained on rehearing, 60 Neb. 763, 84 N.W. 254; Frank R. Jelleff, Inc. v. Braden, 233 F.2d 671, 63 A.L.R. 2d 400; McCormick on Evidence, 242, p. 513; 4 Wigmore on Evidence (3d Ed.), 1066, p. 53. The contention comes too late.
Overthrowal of the verdict is unwarrantable. The difference in evidence against the two defendants accounts for the dismissal of the one and the vicarious liability of the other. However, Mid-City insists that the judgments are inconsistent.
If a master is to respond in damages solely on account of his servant's negligence, a judgment dismissing the servant but holding the master is with some exceptions not self-consistent. See, Bohmont v. Moore, 138 Neb. 784, 295 N.W. 419, 133 A.L.R. 270; Forsha v. Nebraska Moline Plow Co., 94 Neb. 512, 143 N.W. 453; Zitnik v. Union P. R.R. Co., 91 Neb. 679, 136 N.W. 995; Gerner v. Yates, 61 Neb. 100, 84 N.W. 596. The rule applies where the material evidence against both defendants is the same. See, Lewis v. Union P. R.R. Co., 118 Neb. 705, 226 N.W. 318; Mansfield v. Farmers State Bank, 112 Neb. 583, 200 N.W. 53; Young v. Rohrbough, judgment reversed on rehearing, 86 Neb. 279, 125 N.W. 513; Chicago, St. P., M. O. Ry. Co. v. McManigal, 73 Neb. 580, 103 N.W. 305, judgment modified on rehearing, 73 Neb. 585, 107 N.W. 243.
The judgments here conform with traditional concepts of regularity. The tautology for producing inconsistency seems to include a law that events acquire a standing independent of evidence, i.e., that rules permitting admission of evidence for limited purposes are meaningless. Such a system will not do.
The finding of agency implied by the general verdict is said to be speculative. The salvage company agreed to perform the work at its expense and to pay Mid-City any difference between the value of the pipe and the labor cost of removal. Mid-City agreed to furnish help or direction upon request of the workmen.
The testimony is open to a reasonable inference that Mid-City had the right to exercise substantial control over the details of the work. The right of control is ordinarily a question of fact. See, Mansfield v. Andrew Murphy Son, 139 Neb. 793, 298 N.W. 749; Curry v. Bruns, 136 Neb. 74, 285 N.W. 88.
The judgments are affirmed.
AFFIRMED.