APPEAL from the Circuit Court of Coles County; the Hon. JAMES
R. WATSON, Judge, presiding.
MR. JUSTICE SIMKINS DELIVERED THE OPINION OF THE COURT:
Plaintiff filed suit to recover damages suffered when a fire in defendant's building spread to plaintiff's neighboring property. The trial court directed a verdict for defendant and plaintiff appeals.
The issues on appeal are as follows: (1) Whether the doctrine of res ipsa loquitur is applicable to this case; (2) Whether the trial court erred in refusing to permit certain expert testimony; (3) Whether hearsay testimony was erroneously admitted; (4) Whether the trial court erred in permitting a response to a hypothetical question which included a fact not in evidence; (5) Whether the trial court erred in disallowing a hypothetical question based on an alleged theory of plaintiff's case; and (6) Whether the verdict was properly directed. We affirm.
On January 16, 1972, at 1:17 a.m., the Charleston Fire Department responded to a fire in the defendant's building at 725 Seventh Street. Plaintiff owned the property at 723 Seventh Street. The temperature had been below zero for two or three days before the fire. About one hour after the Fire Department's arrival, the fire spread from defendant's to plaintiff's building. Both buildings were totally destroyed.
The fire chief and a deputy State fire marshal inspected the debris. The deputy fire marshal was of the opinion that the fire originated in the furnace located in the basement of the building and specifically in the motor of that furnace. It had not been possible to open up the motor and inspect it because it was badly burnt. A like opinion, that the motor was the cause of the fire, was expressed by Ronald Russell, an investigator for the Chicago Bureau of Fire Investigation. The motor itself was not introduced at trial, having apparently been misplaced by the Charleston Police Department.
James Nadolski, President of Eastern, testified that the building had contained two furnaces, one in the basement and one on the street level floor. He testified both furnaces were new when installed in 1967. Both were gas, forced air furnaces. The building itself was poorly insulated and leaked air. Nadolski testified that he had personally checked both furnaces, changed filters and oiled the furnace in question periodically. However, he couldn't specifically recall when this was last done. He also testified that he left the building in the middle of the Saturday afternoon before the fire (which was very early Sunday morning) and it was customary practice to turn the thermostats down before leaving. He could not say definitely whether this was done that Saturday.
• 1 The basic question presented by this appeal is whether the doctrine of res ipsa loquitur is applicable to this case. Whether the doctrine is applicable is a question of law to be determined by the court. Three conditions are necessary in order that the doctrine be applicable. The first is that the accident be of the kind which does not ordinarily occur in the absence of someone's negligence. The second is that the instrumentality which caused the injury be within the exclusive control of the defendant. The third is that the plaintiff be in the exercise of due care. (Drewick v. Interstate Terminals, Inc. (1969), 42 Ill.2d 345, 348, 247 N.E.2d 877, 879.) Only the first condition is at issue here.
The mere occurrence of a fire is not sufficient to invoke the doctrine of res ipsa loquitur. (Edmonds v. Heil (1948), 333 Ill. App. 497, 77 N.E.2d 863.) It is only when the fact of the fire plus the surrounding circumstances give rise to an inference of negligence that res ipsa loquitur is applicable. (Annot., 8 A.L.R.3d 974, 984, 992 (1966).) The doctrine does not relieve the plaintiff of proving that negligence was the cause of the injury (Mabee v. Sutliff & Case Co., (1948), 335 Ill. App. 353, 366, 82 N.E.2d 63, 69-70), although it makes proof of negligence easier.
Plaintiff cites several cases involving fires where res ipsa loquitur was held to be applicable. (Collgood, Inc. v. Sands Drug Co. (1972), 5 Ill. App.3d 910, 284 N.E.2d 406; Arado v. Epstein (1944), 323 Ill. App. 194, 55 N.E.2d 561; Edmonds v. Heil; Oakdale Building Corp. v. Smithereen Co. (1944), 322 Ill. App. 222, 54 N.E.2d 231.) In each of these cases circumstances beyond the mere occurrence of the fire existed which justified the establishment of a prima facie case of negligence. In Collgood, defendant's employees were in the area of defendant's exclusive control to install fixtures. Shortly after their arrival, the fire department responded to an alarm there and found a space heater with red hot filaments one foot away from a burning box. In Arado, defendants and his workmen were the only ones in the basement when the fire started. Under those circumstances the facts of the occurrence was peculiarly within the knowledge of the defendant. In Edmonds the fire occurred shortly after the janitor had fired the boiler. According to the testimony the janitor was mistakenly operating the system on "pounds" of pressure rather than "ounces." In Oakdale, a fire started within 15 minutes after one of defendant's employees had left the empty apartment.
• 2 In the case at bar, the witnesses who testified pinpointed the fire as originating in defendant's furnace. No other circumstances which could raise an inference of negligence were established. Accordingly the trial court was correct in holding that the doctrine of res ipsa loquitur was not applicable. (See Welch v. New Harper Hotel Co. (1915), 196 Ill. App. 94.) Plaintiff presented no evidence from which a jury could say that it is more likely than not that negligence was the cause of fire. When no such balance of probabilities in favor of negligence can reasonably be found, res ipsa loquitur does not apply. Prosser, Torts 218 (4th ed. 1971).
On redirect examination of Ronald Russell, the following exchange took place:
"Q. Do you have an opinion within a reasonable degree of scientific certainty what instrumentality caused the fire?
Q. Well, assuming the motor didn't start the fire, based upon the evidence in this case, ...