Oral W. TUCKER, d/b/a, Oral W. Tucker Sales Agency, and Oral W. Tucker Sales Agency, Inc., a corporation, Appellants,
Audrey Jean Spain COLLAR, Appellee.
[79 Ariz. 143] Allen & David, Tucson, for appellants.
Westover & Mansfield, Yuma, for appellee.
Audrey Jean Spain Collar, hereinafter referred to as plaintiff, filed complaint in the superior court of Yuma county charging Oral W. Tucker dba Oral W. Tucker Sales Agency, hereinafter designated as defendant, with negligence that resulted in the starting of a fire which destroyed plaintiff's building. Briefly, the acts alleged as constituting negligent conduct were that plaintiff leased her building to one Jones; that Jones purchased a box refrigerator and compressor from defendant; that the appliance failed to operate properly; that defendant installed a larger motor; that shortly thereafter the compressor froze thereby preventing the belt connecting the compressor with the motor from turning; that friction from the turning of the motor ignited the belt causing it to burn in two; that the agent of defendant sent to repair the box recommended a larger condenser; that the larger condenser was not installed notwithstanding that, to the knowledge of the defendant, the compressor froze two additional times and ignited the belt. Thereafter it froze for the fourth time and fire which was thus ignited spread to the building and caused its destruction. This in substance is the conduct which plaintiff alleges is negligent.
Evidence was submitted from which the jury might under proper instructions find the defendant's conduct as charged either was or was not negligent. Verdict was returned for the defendant. Plaintiff moved for a new trial. The court granted the motion upon the sole ground that the giving of defendant's requested instructions numbered 5 and 6, as follows, was erroneous:
'5. I further instruct you that the duty to exercise care arises from probabilities, rather than from bare possibilities of danger. Consequently, in order for the plaintiff to establish the liability of the defendant for harm, the plaintiff must show by a preponderance of the evidence that the alleged negligent conduct of the defendant was such that, acting as a reasonable and prudent man, the defendant should have recognized that his acts created an appreciable chance of causing the harm done, rather than a bare possibility thereof; and, failing therein, the plaintiff cannot recover in this action.
'6. I charge you that the defendant was required by law only to anticipate and foresee and guard against what usually happens or is likely to happen,
but that he was not required to foresee and provide against that which is unusual and not likely to happen, or, in other words, that which is only remotely and slightly probable and that the proper test in cases of this kind is not whether the injurious result or consequence[79 Ariz. 144] was possible but whether it was likely to occur according to the usual experience of persons.'
Plaintiff objected to the giving of instruction number five for the reasom 'that the correct statement of the law is that if an injury can be anticipated all proximate results of a negligent act creates liability.' Plaintiff objected to the giving of instruction number six on the same ground and upon the ground that 'what usually happens or is likely to happen is not what determines liability but whether an injury could be foreseen to the person or another person when the negligent act occurred.'
In determining the correctness of the instructions, we limit our decision to the points raised by the objections. Edwards v. Gaston, 75 Ariz. 131, 252 P.2d 786. Likewise, in determining the correctness of the trial court's ruling in granting the motion for new trial, we limit our decision to the ground upon which such ruling is based. City of Phoenix v. Harlan, 75 Ariz. 290, 255 P.2d 609.
The instructions were intended and understood by court and counsel to be an attempt to announce the law as to the necessity of the defendant, when he committed the acts alleged to be negligent, to reasonably anticipate a risk of harm resulting therefrom. Instruction number five told the jury the defendant should have recognized (meaning anticipated) that his acts created an appreciable chance (meaning risk or danger) of causing the harm done. The objection in effect presents the point the defendant need not anticipate the particular harm that did occur but if he should have anticipated any harm or injury, he is negligent and liability is imposed whether he could anticipate the particular injury that did occur. Instruction number six told the jury in effect that in order for the defendant to be negligent, he must be able to anticipate, that the injurious consequences of his act was not merely possible but was likely to occur according to the usual experience of persons. The objection to this instruction presents the problem of whether, in determining if conduct is negligent, one must foresee probable injury not only to the plaintiff but also to another person.
Negligent conduct is doing something that a reasonable person should realize involves an unreasonable risk of causing an invasion of an interest of another (damage to another) or failing to do something he is under a duty to do. Restatement, Torts, section 284. In a case of this character the duty to act arises from the risk of injury resulting from inaction. No particular objection being raised as to phraseology, we take the two instructions together as telling the jury in effect that before it may find the defendant to have been negligent, he should have realized that there was an unreasonable risk of the harm done to plaintiff through the instrumentality of fire. The able and conscientious trial judge believed this not to be the law, thinking that if the defendant could have reasonably realized a [79 Ariz. 145] risk of harm of any sort to anybody flowing from his conduct, liability must be imposed for the particular damage to plaintiff, which sprang from the risk of fire.
In coming to this conclusion the court felt bound by the pronouncements made in our cases of Crandall v. Consolidated Telephone, Telegraph & Electric Co., 14 Ariz. 322, 127 P. 994, and Mesa City v. Lesueur, 21 Ariz. 532, 190 P. 573, wherein there is language supporting this view. In the Crandall case, the defendant admitted negligence and endeavored to escape liability upon the ground that the chain of causation was broken by an independent act of a third person. In the Lesueur case, the defendant did not contend he was not negligent but sought to avoid liability upon the ground his negligence was not the proximate cause of the injury because of an independent act of a gopher causing an irrigation ditch to break. Both cases stand for the proposition that after negligence is established, one would not have to anticipate the proximate consequences thereof to impose liability. There was no occasion for any statement
concerning the requisites of anticipation to ...