                                       No. 12537

        I N THE SUPREME C U T O THE STATE O M N A A
                         OR    F           F OTN

                                             1974



A. G. HASH, d/b / a H S CONSTRUCTION COMPANY,
                     AH

                               P l a i n t i f f and A p p e l l a n t ,

        -vs   -
MONTANA P W R COMPANY,
         O E

                               Defendant and Respondent.



Appeal from:       D i s t r i c t Court o f t h e S i x t h J u d i c i a l D i s t r i c t ,
                   Honorable W. W. L e s s l e y , Judge p r e s i d i n g .

Counsel of Record:

     For A p p e l l a n t :

              David W. DePuy, L i v i n g s t o n , Montana
              Bennett and B e n n e t t , Bozeman, Montana
              Lyman H . B e n n e t t , Jr. appeared and Lyman H . B e n n e t t , 1 1
                                                                                    1
               argued, Bozeman , Montana

     For Respondent :

              Berg, Angel, Andriolo and Morgan, Bozeman, Montana
              Richard J. Andriolo appeared and Gregory 0. Morgan
               argued, Bozeman, Montana



                                                     Submitted:            A p r i l 24, 1974

                                                       Decided :
                                                                      qflk 2 4   1974
Mr.   Chief J u s t i c e James T . H a r r i s o n d e l i v e r e d t h e Opinion of
t h e Court.

              Hash C o n s t r u c t i o n Company b r o u g h t a c t i o n i n t h e d i s t r i c t

c o u r t o f P a r k County t o r e c o v e r damages i n t h e amount o f $46,793.83
f o r a f i r e o r i g i n a t i n g i n t h e e l e c t r i c a l m e t e r box on i t s prop-

e r t y e a s t of L i v i n g s t o n , Montana on August 29, 1970, and t o

which d e f e n d a n t Montana Power Company p r o v i d e d t h e e l e c t r i c i t y .

A t t h e c l o s e o f a l l t h e e v i d e n c e , p l a i n t i f f moved f o r a d i r e c t e d

v e r d i c t on t h e b a s i s of r e s i p s a l o q u i t u r , which motion was t a k e n
under a d v i s e m e n t .       The c a s e t h e n was s u b m i t t e d t o t h e j u r y ; a

v e r d i c t i n f a v o r o f d e f e n d a n t Montana Power Company was r e t u r n e d ;

and judgment was e n t e r e d a c c o r d i n g l y .             P l a i n t i f f t h e r e u p o n moved

f o r judgment n o t w i t h s t a n d i n g t h e v e r d i c t , a g a i n on t h e b a s i s o f

r e s i p s a l o q u i t u r , o r , i n t h e a l t e r n a t i v e , f o r a new t r i a l .          The

motion was d e n i e d .

              P l a i n t i f f s u b s e q u e n t l y p e r f e c t e d t h i s a p p e a l and r a i s e s
three issues:              (1) Whether t h e d i s t r i c t c o u r t e r r e d i n f a i l i n g

t o g r a n t a d i r e c t e d v e r d i c t i n f a v o r of p l a i n t i f f on t h e b a s i s

o f res i p s a l o q u i t u r .       ( 2 ) Whether t h e d i s t r i c t c o u r t e r r e d i n

f a i l i n g t o g r a n t a d i r e c t e d v e r d i c t f o r p l a i n t i f f on grounds of

a l l e g a t i o n s of n e g l i g e n c e .   ( 3 ) Whether t h e e v i d e n c e was s u f f i c i e n t

t o s u p p o r t a j u r y v e r d i c t i n f a v o r of d e f e n d a n t .

              The f a c t s a r e :

              An e a r l i e r f i r e o c c u r r e d i n t h e meter box l o c a t e d on

p l a i n t i f f ' s p r o p e r t y i n F e b r u a r y 1970.      Walford L i n d q u i s t , an

employee of Montana Power Company, came t o p l a i n t i f f ' s p r o p e r t y
t o d i s c o n n e c t t h e power and remove t h e damaged m e t e r .                       A f t e r re-

moving t h e m e t e r , he d i s c o v e r e d t h e remains of a dead mouse i n
t h e m e t e r box and t h o u g h t it t o be t h e p o s s i b l e c a u s e of t h e f i r e .
F u r t h e r i n v e s t i g a t i o n by L i n d q u i s t r e v e a l e d an a c c e s s from w i t h i n

p l a i n t i f f ' s b u i l d i n g t o t h e m e t e r box which would a l l o w f o r e i g n

o b j e c t s t o e n t e r t h r o u g h t h e r e a r of t h e m e t e r box.
        Plaintiff hired Cissel Electric to perform the work of
replacing the damaged meter box.   Lindquist showed Cissel Elec-
tric the dead mouse he had found in it.   After Cissel Electric
had completed its work, Lindquist returned to plaintiff's prop-
erty,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 plain-
tiff's property, it resulted in a short circuit and a fire.     He
hypothesized that the collision of descending and returning ex-
cessive 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 partic-
                            of
ular testified that because/lightning arresters and transformers
in the line, a power surge of the magnitude testified to by Dr.
Knox would have dissipated 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 fluc-
tuations 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 hav-
ing 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 6i4.    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, sup-
plying 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.    Through 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 policyfit
should be required to explain accidents which occur through its
equipment, this case 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. That would be the owner's electrician in-
        stalls what you have marked here as the weather-
        head, the wires that come out of the weatherhead
        and the wires that extend down that weatherhead
        into the meter base, together with all of the
        other wiring from the meter base into the build-
        ing? A. That is my understanding of the current
        practice."
        Dr. Knox's expert opinion was that the most likely cause
of the arcing within the meter box was a power surge, yet upon
further cross-examination he testified:
        "Q. Dr. Knox, have you had much experience work-
        ing with 480 volt circuits? A. I have had a
        reasonable amount of experience. My work with
        Firestone Tire and Rubber Company involved quite
        a lot of 480, or 440 it was in those days.
       "Q. Now Dr. Knox, could moisture accumulating
       in the meter box cause a short within the meter
       base here? What I am referring to is not the
       meter but the meter base, which is Plaintiff's
       Exhibit 2? A. An accumulation of moisture coupled
       with contaminants that might get into the moisture
       could cause a bridging across insulation and
       eventually causing a breakdown, yes.
       "Q. So a short within this box could have occurred
       from moisture accumulation within the box? A.
       Moisture plus other contaminants. Pure water is
       not a conductor.
       "Q. So that also is another explanation for the
       short which occurred in this box on August 29,
       1970, as well as your power surge explanation?
       A. That would be a possibility.
        "Q. Now what about a loose connection within
        the box, Dr. Knox? A. Yes, any connection between
        ground and one of the hot conductors could cause
        an arcing to be established.
        "Q. What about foreign matter in there, dirt,
        dust, straw, this type of thing; a mouse. A.
        Foreign matter of sufficient conductivity in
        the right places could cause it."
        The insurance report prepared by Dr. Knox indicated that
incident to an earlier fire, a short in the meter box had been
caused by a mouse.   There is ample evidence that the meter box
and related parts were vulnerable to foreign objects entering.
The jury could reasonably conclude that moisture, a loose con-
nection, a mouse, or any kind of foreign matter could have caused
arcing which resulted in the later fire.
        Evidence the injury would not ordinarily occur without
negligence.   There is a dearth of evidence in the record tending
to establish that the fire was an accident which ordinarily would
not have happened without negligence on the part of defendant.
        Plaintiff attempts to satisfy the third element of -
                                                           res
i p s a l o q u i t u r s o l e l y on t h e b a s i s o f D r . Knox's h y p o t h e s i z e d power

surge.       Y e t t h e r e i s no c r e d i b l e e v i d e n c e t h a t a power s u r g e i n

and o f i t s e l f i s a r e s u l t o f n e g l i g e n c e on t h e p a r t o f d e f e n d -

ant.      Moreover, t h e j u r y a p p a r e n t l y doubted whether i n f a c t
t h e r e was a power s u r g e .           None was n o t i c e d by o t h e r u t i l i t y c u s -

tomers o r b r o u g h t t o d e f e n d a n t ' s a t t e n t i o n on t h e day of t h e f i r e .

There were no d e f e c t s found i n t h e s e r v i c e l i n e s , m e t e r o r t r a n s -

mission f a c i l i t i e s .      August 29, 1970 was a c l e a r d a y i n t h e

L i v i n g s t o n a r e a , w i t h no s t o r m s o r o t h e r t u r b u l e n c e .

             The j u r y r e j e c t e d t h e power s u r g e theory, a s it had a
p e r f e c t r i g h t t o d o , s i n c e i t was c o n t r a d i c t e d and n o t s u p p o r t e d

by o t h e r e v i d e n c e .    There was no s u b s t a n t i a l e v i d e n c e upon which

t h e d i s t r i c t c o u r t c o u l d c o n c l u d e t h a t r e a s o n a b l e men might f i n d

d e f e n d a n t r e s p o n s i b l e t h r o u g h i t s n e g l i g e n c e f o r a power s u r g e .

             S i n c e we have concluded t h i s i s n o t a r e s i p s a l o q u i t u r
c a s e , t h e q u e s t i o n o f t h e p r o c e d u r a l impact of t h a t d o c t r i n e i n

Montana need n o t be c o n s i d e r e d .
             The f i n a l i s s u e i s t h e s u f f i c i e n c y of t h e e v i d e n c e t o

support t h e verdict.               A defendant i s n o t required t o r e b u t a l l

o f t h e p l a i n t i f f ' s e v i d e n c e b u t i n s t e a d need o n l y p r e s e n t e v i d e n c e

from which r e a s o n a b l e men c o u l d c o n c l u d e h i s freedom from neg-

ligence.          I n o u r view, t h e d i s c u s s i o n o f e v i d e n c e s e t o u t above

s a t i s f i e s t h i s t e s t i n t h a t i t e s t a b l i s h e s t h e r e was ample
evidence t o support t h e jury v e r d i c t f o r defendant.
             The j u r y was g i v e n t h e o p p o r t u n i t y t o c o n s i d e r a l l of t h e

e v i d e n c e and was under i n s t r u c t i o n s which were f a v o r a b l e t o p l a i n -
tiff.      The j u r y d e t e r m i n e d d e f e n d a n t was n o t l i a b l e .       W agree.
                                                                                            e
             Whether t h e d i s t r i c t c o u r t e r r e d i n f a i l i n g t o g r a n t
p l a i n t i f f ' s motion f o r a d i r e c t e d v e r d i c t on t h e grounds of

a l l e g a t i o n s of n e g l i g e n c e c a n be d i s p o s e d of simply:           There i s no

i n d i c a t i o n t h i s i s s u e was e v e r r a i s e d i n t h e d i s t r i c t c o u r t .     It
is fundamental that objections urged for the first time on

appeal will not be considered by this Court.
       The judgment is af£irmed.



                                         chief Justice
