Sellers v. Montana-Dakota Power Co. , 99 Mont. 39 ( 1935 )

As to the law relative to the liability of defendant company for failure to have a stopcock in good working order in the street for shutting off the gas, we cite: Bowen Son v. IowaPublic Service Co., 35 F.2d 616; Krom v. Antigo GasCo., 154 Wis. 528, 140 N.W. 41, 42. The general liability is also discussed in Manufacturer's Light Heat Co. v. AmericanTel. Tel. Co., 5 F.2d 572, 24 N.C.C.A. 749. As to sending in excessive current, interesting cases are Hanton v. NewOrleans C.R. Light Power Co., 124 La. 562, 50 So. 544, 12 N.C.C.A. 218, note; Hoboken Land Imp. Co. v. United ElectricCo., 71 N.J.L. 430, 58 A. 1082; Alabama City G. A.R. Co. v. Appleton, 171 Ala. 324, 54 So. 638, Ann. Cas. 1913A, 1181;Colorado Springs Elec. Co. v. Soper, 38 Colo. 126,88 P. 161; Pullman Palace Car Co. v. Laack, 143 Ill. 242,32 N.E. 285, 18 L.R.A. 215; Citizens' Gas Oil Min. Co. v. Whipple,32 Ind. App. 203, 69 N.E. 557; Cushman Rankin Co. v. Boston M.R.R., 82 Vt. 390,73 A. 1073, 18 Ann. Cas. 708. To undertake to do work and to do it imperfectly is such an act of negligence as will render the company liable. (Lanigan v. New York Gaslight Co., 71 N.Y. 29. ) For gas escaping because no stopcock, see Swayzee v.Augusta, 108 Kan. 785, 197 P. 208; Castner v. Tacoma G. F. Co., 123 Wash. 236, 212 P. 283; Canfield v. WestVirginia etc., Co., 80 W. Va. 731, 93 S.E. 815.

Res gestae: "Natural gas is almost odorless, being detectable through smell only by persons trained and accustomed to it." (Nomath Hotel Co. v. Kansas City Gas Co.,300 Mo. 240, 253 S.W. 975.) This case is useful for many other reasons in the case at bar but we quote the foregoing chiefly in connection with the specification of error relating to the exclusion of the testimony of Atwood that his brother, who died before the trial, during the fire said that he smelled gas in the apartment. The courts are not entirely agreed as to whether and under what circumstances the statements and exclamations of bystanders are competent as part of the res gestae of the transaction in question. Some courts are inclined to hold that only the statements of actual participants are admissible. Others hold that the statements of a mere bystander or onlooker may constitute part of the res gestae if they otherwise conform to the rules governing this class of testimony. (11 Ency. Evid., p. 342.) Among the cases in the footnote holding the statements of bystanders admissible is listed State v. Biggerstaff,17 Mont. 510, 43 P. 709. The quality of a thing may be part of theres gestae. "Look out, that plank is cracked," is held admissible as part of the res gestae. (Louisville etc. PacketCo. v. Samuels, 22 Ky. Law Rep. 979, 59 S.W. 3.) Such testimony varies in persuasiveness but is always competent. If a man in the building during the fire said to a crowd on the street, "I smell kerosene," it would be convincing.

It has been held that the death of the declarant and consequent inability to produce his testimony is a circumstance properly considered by the court in exercising its discretion as to admission thereof in evidence. (Pledger v. Chicago, B. Q. Ry., 69 Neb. 456, 95 N.W. 1057.) "The real test is whether the declaration, considering all the circumstances, was spontaneously made without premeditation under pressure of the main transaction and can therefore be regarded as trustworthy." (11 Ency. Evid., p. 335.) Testimony to the same effect does not cure error in excluding such declarations. (Griffin v. State,40 Tex. Cr. 312, 50 S.W. 366, 76 Am. St. Rep. 718.)

Expert and opinion evidence: "The trial judge, against the objection of the defendant, permitted some of the firemen who were present, aiding in the endeavor to save the building, and whose testimony showed that they went into the building and knew of its size, the character of the material out of which it was built, and the point to which the fire had reached when the car ran upon the hose, to testify that, in their opinion, but for the interruption which was occasioned by the defendant, the building would have been saved and the destruction of the plaintiff's property avoided." They "were experts, and their opinions were based upon their own personal knowledge of the conditions." They showed by their evidence that their vocation in life was extinguishing fires, and we think that this evidence was admissible and relevant. (Walker v. State, 58 Ala. 393; Jones on Evidence, pars. 366, 375; First Nat. Bank of Portland v.Fire Assn., 33 Or. 172, 53 P. 8; Birmingham E. B.R. Co. v. Williams, 190 Ala. 53, 66 So. 654; Germania Life Ins. Co. v. Ross-Lewin, 24 Colo. 43, 51 P. 488, 65 Am. St. Rep. 215;Davis v. State, 44 Fla. 32, 32 So. 824.)

The court erred in refusing to permit plaintiff to amend her complaint. (Kakos v. Byram, 88 Mont. 309, 292 P. 909;Johnson v. Herring, 89 Mont. 156, 295 P. 1100; Ryan Co. v. Russell, 52 Mont. 596, 161 P. 307; Norton v. Bassett,158 Cal. 425, 111 P. 253; Green v. Gavin, 11 Cal. App. 506,105 P. 761.) Plaintiff offered to prove by the witness Atwood a statement made by Schoengarth, one of the firemen, whom he met on the stairway during the fire, to the effect that he was on his way to get a man to shut off the gas. The court sustained an objection. Schoengarth at the time was not acting as an employee of the defendant and could not bind the defendant by any statement he made. It is settled that an employee of an electric company, while acting at fires under the direction of the city authorities, cannot render the company liable by his words or acts in the absence of special authority. (New Omaha etc. Co. v. Anderson, 73 Neb. 84, 102 N.W. 89; Trouton v. New Omahaetc. Co., 77 Neb. 821, 110 N.W. 569.)

Opinion evidence of firemen properly rejected: All of the facts relating to the peculiar course of the fire were fully and in detail described by witnesses to the jury and there was not the slightest excuse for the reception of opinion evidence. Moreover, the witnesses were not qualified as experts. The evidence shows that they were not professional fire-fighters, but merely members of a volunteer fire department. Plaintiff cites the case of Walker v. State, 58 Ala. 393. The case is not in point, for in the cited case a very comprehensive foundation was laid. The witnesses were shown to be professional firemen and proof was offered that "their vocation in life was extinguishing fires." She also cites the case of First Nat. Bank v. FireAssn., 33 Or. 172, 53 P. 8. The foundation laid for the expert testimony in this case likewise showed that the witnesses were professional firemen, the court saying: "The witnesses were regarded by the court below as skilled firemen, and were permitted to testify as competent experts concerning matters falling within the line of their vocation." In the case at bar one witness was a transfer man and the other an electrician. Neither one was a skilled fireman.

Statement of a witness that he heard a deceased person say he smelled gas was properly stricken: Atwood, a witness called by plaintiff, testified that he and his brother went to the fire shortly after 2 o'clock. They went to the second floor of the building and watched tenants of the building carry water to the meter-room and throw it on the fire. The witness stood outside the door. They next went into the deceased brother's apartment and noticed the smoke, and during their conversation the deceased brother expressed his opinion that the smell was from gas. In support of this specification of error, plaintiff cites Pledger v. Chicago, B. Q. Ry. Co., 69 Neb. 456,95 N.W. 1057. There the court said: "The trial court must be permitted to exercise its discretion, very largely, in determining whether the declarations were made under such circumstances as to permit the inference that they were genuine expressions." The law in Montana is well settled that the admissibility of statements as a part of the res gestae rests largely in the determination of the trial court. Indeed, counsel for plaintiff appearing before the bar of this court in the case of Sullivan v. Metropolitan Life Ins. Co., 96 Mont. 254,29 P.2d 1046, urged the identical rule which he now asks this court to disregard.

Notice to an electric company's meter-man, having no authority to change wiring, of defective wiring, is not notice to electric company. (Ratliffe v. Kentucky W. Va. Power Co., 232 Ky. 262, 22 S.W.2d 620.) In support of plaintiff's contention that it was the duty of the electric company to inspect the wiring within the building before sending electricity over such wiring, the case of Hoboken Land Improvement Co. v. United ElectricCo., 71 N.J.L. 430, 58 A. 1082, is cited. This case is not in point. There the electric company hired an independent electrician to install its meter and fire was caused by a defective meter-box. It is apparent that the fire started in an appliance belonging to the company. In the case at bar the fire is alleged to have started not in any appliance belonging to the company or installed by it but in an appliance installed by and owned by the owner. The following cases defining the duty of electric light companies in inspecting wires and appliances of customers are in favor of our contention of nonliability: Tripp v. Cox, 296 Fed. 587; Drury v. East St. Louis Light Power Co., 194 Ill. App. 121; Frazier v. Cityof Geneva, 203 Ill. App. 566; Sutton's Admr. v. KentuckyUtilities Co., 245 Ky. 470, 53 S.W.2d 711; Smith's Admx. v.Middlesboro Electric Co., 164 Ky. 46, 174 S.W. 773, Ann. Cas. 1917A, 1164; Caldwell v. Alley, 70 Ind. App. 313,123 N.E. 432; McFerran v. Merchants' Heat Light Co.,81 Ind. App. 653, 131 N.E. 544, 132 N.E. 267; Blass v. Virgin Pine LumberCo., 50 F.2d 29; Hill v. Pacific Gas Electric Co.,22 Cal. App. 788, 136 P. 492; Minneapolis General Electric Co. v. Cronon, 166 Fed. 651, 92 C.C.A. 345, 20 L.R.A. (n.s.) 816.

Liability for failure to provide emergency switches outside of building: The duty of an electric company to cut off current in case of fire is discussed in the case of Pennebaker v. SanJoaquin Light Power Co., 158 Cal. 579, 112 P. 459, 39 Am. St. Rep. 202, 31 L.R.A. (n.s.) 1099, in which the court denied plaintiff's contention that it was the duty of the electric company to do so.

Liability for disobedience of ordinance relating to stopcocks for gas: To this point we cite Cochran v. Philadelphia R.T.R. Co., 184 Pa. 565, 39 A. 296.

The court properly denied plaintiff's motion for leave to amend her complaint: The amendment was entirely inconsistent with the original complaint. The proposed amendment alleged no facts to show the manner in which this strange, mysterious ground current rises, nor to indicate where the current goes, or what effect it has when it does arise, nor any facts to show the manner in which it could have aggravated the fire in question. No citation of authority is required in support of the rule repeatedly recognized by this court which gives the trial court great latitude in exercising its discretion in permitting amendments during the course of trial. The plaintiff, Jessie Jean Sellers, has appealed from a judgment against her and in favor of the defendant, Montana-Dakota Power Company, a corporation organized under the laws of Delaware and furnishing electricity and natural gas to the city of Glendive and its citizens.

The action arose out of the loss of plaintiff's household goods and personal property, located in an apartment rented by her on the second floor of the Reynolds building, in Glendive, when the building was destroyed by fire on the morning of November 20, 1932. This building consisted of a basement and first floor, occupied by Reynolds and a tenant in conducting a store and meat market, and a second floor divided into ten living apartments, one of which was occupied by this plaintiff. In June, 1932, Reynolds purchased and installed a second-hand Frigidaire machine, the motor to which was placed in the basement and from which a conduit containing electric wires was extended up through the building to the meter closet on the second floor. This machine was defective, and Reynolds purchased a new motor, and later had the "electrical side" examined by an expert, and then the "chemical side" replenished and perhaps repaired. The fire was evidently caused by a short circuit in the "electrical side" of the Frigidaire. The plaintiff contends that this situation was brought about by the negligent acts or omissions of the defendant company.

The complaint alleges that a part of the business in which the defendant was engaged was "the installation of power and light connections, the installation of Frigidaire, ice making machines; the inspection of such connections of its electric currents, with motors and lighting devices used by its customers, * * * and the sale of natural gas under pressure through pipes to such of the general public in Glendive as desired to and did pay for its service and its commodity, natural gas. That plaintiff was one of its customers. * * * That at some time about five months before November 19, 1932, the proprietors of said building had in the basement thereof a Frigidaire machine which was not properly installed nor properly connected with the electric current * * * with defective insulated feed wires and unworkable and unsafe, * * * and * * * for hire and for special payment therefor, requested the defendant to send some expert man to examine, inspect, repair and reconstruct the electric connections of said Frigidaire," and put it and its connections "in good and safe condition," and that the defendant agreed to do so. Further, that the servant of the company worked on the machine several days, but failed to render the machine safe, though assuring the proprietors that he had done so, and that the defendant's negligence in this regard and in "sending an excessive load of electricity over the same, set the building on fire."

It is further alleged that the defendant negligently failed to install fuses which would break the current when the load became too heavy, and permitted switches to be "bridged" so that the fuses would not burn out if the Frigidaire received a greater load than it was designed for, all of which defendant knew from monthly inspections of the Frigidaire and its connections, or should have known by the exercise of reasonable care and ordinary skill, but nevertheless continued to send a "large current of electricity" over the wires. It is then alleged that the fire could, and would, have been extinguished without damage to plaintiff's property "but for the continuing charge of an excessive current of electricity being sent through the said wires by the defendant"; that the fire would have been extinguished had the defendant used reasonable care and speed to cut the current from the building, "but, being notified to do so, it negligently failed to cut off the said current," and failed to have on hand ladders and devices for doing this work. It is further alleged that escaping gas contributed to the fire and that the defendant failed and neglected to have stopcocks outside the building, which were workable, to cut off the gas.

However, the evidence adduced, and which the jury was permitted to consider, warranted a finding to the effect that the defendant installed wiring only on the outside of buildings, and did not, particularly with reference to the Reynolds building, have anything to do with the wiring within buildings; that the offending Frigidaire was installed in June, 1932, by an independent electrician employed by Reynolds, who did all the work with the exception of the placing of the meter, and that all work thereafter done, and all inspection of the wiring thereof, was by this electrician, or another electrician also employed by Reynolds; that the man called in the latter part of the month to inspect and repair the Frigidaire, an employee of the defendant, was not an electrician and not authorized to inspect or do any work on the wiring, but was employed only to take care of the "chemical side" of the machine; that he did this; finding that the chemical was low and the pipes leaking, he repaired the pipes and renewed the liquid. For this service and liquid, the proprietor was billed, and this bill he paid, but the defendant was in nowise responsible for the condition of the wiring within the building, or the defects, if any, in the "electrical side" of the Frigidaire.

While a number of switches had been installed in the building, but one was "bridged" to prevent the safety fuses from burning out; the evidence does not disclose who was guilty of this breach of proper installation, nor whether it affected the Frigidaire wiring.

The volunteer fire department of Glendive was called out some time after the fire was discovered, and arrived at the building at 2:15 A.M.; it found such a volume of smoke in the basement that it was impossible to enter that part of the building. The conduit leading from the Frigidaire motor to the meter closet on the second floor was found to be at white heat, and this condition was not relieved by opening all the switches in the closet, nor did the flooding of the conduit and surroundings with both chemicals and water have any permanent effect upon the conduit. The fire itself was, at the time of the arrival of the fire department, and for perhaps an hour thereafter, insignificant, and could have been extinguished without damage to plaintiff's property had it not been for the presence of some strange and unusual condition unique in the experience of firemen of from eighteen to twenty-five years' experience. This condition, however, would not warrant recovery unless it was shown to have resulted from some negligent act or omission of the defendant company.

The evidence adduced and permitted to go to the jury supports the judgment, and there is no contention that it is insufficient to warrant the verdict. Appellant's chief complaint is that the court erroneously excluded offered evidence, and struck out evidence after its admission, which tended to connect the defendant with the condition shown and demonstrate negligence on its part, asserted by appellant to have been the proximate cause of the fire and consequent damage to her.

Specifications 1 and 15 predicate error upon the rulings of[1, 2] the court in the following particulars: On redirect examination of the witness McDonough, who had been employed as an electrician by the proprietor of the building, counsel brought up the question as to the existence of "a ground of current," and the witness stated: "I don't know whether there was a ground of current in that building. It did not, to my knowledge, act like there was." Counsel then asked the question: "Did you answer, Mr. O'Neil, Saturday night, that it acted like there was a grounding of current there in the Reynolds Building at all times?" Objection was interposed on the ground that the testimony would be immaterial, that it was an attempt to impeach "his own witness," and as "improper cross-examination on any new matter." The objection was sustained, and counsel made an offer of proof, offering to show by the witness that for a period of eleven years there had existed, to the knowledge of the defendant, "a so-called ground of electric current" escaping from the station of the defendant and affecting every building located in six designated blocks in the city, which condition was of the utmost danger to the Reynolds building at the time the Frigidaire was installed and thereafter. In objections to the offer, defendant's counsel added to the objections to the testimony above that the proposed proof was not within the issues framed by the pleadings. The objections to the offer were sustained. Later Electrician O'Malley, who was chief of the fire department, testified to the existence of the "ground of current," but, without striking out the answers made, the court finally sustained an objection to that line of testimony. Thereupon the plaintiff tendered a somewhat lengthy amendment to the complaint, alleging the existence of a "condition known as a ground of current, escaping from defendant's generating plant, going into the ground and arising into every building" in six city blocks; that this condition rendered it impossible for any electrician to wire any of the buildings so that they would be safe, and setting up the manner in which, in the opinion of the plaintiff, the condition would render the wiring and piping of the building unsafe; that the condition was known to the defendant and was a contributing cause of the overheating of the conduit. The plaintiff asked leave to make the amendment, stating that she was entitled to go to the jury "on all the theories that our evidence sustains." Objection was made on the ground that the request was untimely, and that the complaint already contained allegations of every conceivable specification of neglect; that the amendment was irrelevant and constituted redundant and sham matter, and stated no actionable negligence. The objections were sustained, and the plaintiff was denied leave to amend.

The record does not disclose that the plaintiff or her counsel had any knowledge of the claim that the "ground of current" existed prior to the statement made by the witnesses on the stand, nor does it disclose that the alleged facts were not known to them at the time the original complaint was drafted; in other words, the record is silent as to the entire matter in so far as the trial is concerned. On motion for a new trial on the ground, among others, of newly discovered evidence, O'Malley's affidavit and that of the plaintiff and her counsel were filed, showing that O'Malley did not disclose the alleged facts until four days before the beginning of the trial, and a counter-affidavit by the manager of the defendant company indicates that O'Malley talked the matter over with him at about the same time that he did with counsel for the plaintiff. The motion for new trial was denied, but error is not specified on this ruling of the court.

It is clear from the record that there was no basis for the above offer of proof at the time it was made; the witness then on the stand had stated that he did not know that the condition described in the offer existed in the Reynolds building, and had indicated that he did not think that it did.

An offer of proof is not sufficient without an affirmative showing of good faith and means of "doing or trying to do what is desired." (State v. Bowser, 21 Mont. 133, 53 P. 179, 182;Schilling v. Curran, 30 Mont. 370, 76 P. 998; Juby v.Craddock, 56 Mont. 556, 185 P. 771.) Had the offer been made while O'Malley was on the stand, error could not be predicated on its exclusion, as the proposed evidence was clearly not within the issues presented by plaintiff's charges of negligence in the installation of the wiring for the Frigidaire and the transmission of an excessive load over the defective wiring.

Having failed to get the evidence of the alleged "ground of[3, 4] current" in under the allegations of the sending of an excessive load "over said wires" or "through said wires," plaintiff sought to amend by alleging that vagrant or escaped electricity had entered the building through the ground and without the aid of wires. The motion to amend came after two days of trial and more than six months after the filing of the complaint, and would have changed the whole theory of negligence on which the action was based; no excuse was offered for failure to have this matter included in the original complaint or for not having sooner moved for leave to amend.

The district court is expressly authorized "in furtherance of justice," but "in its discretion," to allow an amendment to any pleading on such terms as it may deem just. (Sec. 9187, Rev. Codes 1921.) The statute is broad enough to permit an amendment at any time during the trial, or at the close of trial, to make the pleading conform to the proof, but the matter lies within the sound legal discretion of the trial court, and before this court may hold a refusal of leave to amend to have been error, the appellant must show an abuse of such discretion. (Cullen v. Western M. W. Title Co., 47 Mont. 513,134 P. 302; Greene v. Rowan, 29 Mont. 263,74 P. 456.) In the circumstances here surrounding the motion to amend, it cannot be said that the court abused its discretion in denying the motion. (St. George v. Boucher, 84 Mont. 158,274 P. 489.)

Among the many charges of negligence, the plaintiff alleged that the defendant failed to provide switches or other means of cutting off the current of electricity outside the building, and failed to use reasonable care and speed in cutting the current after being notified to do so. Further, that, by ordinance, the defendant was required to install workable stopcocks in the gas feed pipes outside the building, but had negligently failed to do so. It is further alleged that, for a considerable period after the fire was known to exist, it could have been readily extinguished without damage to plaintiff's property, except for the excessive load of electricity continually coming over the wires.

In an attempt to show that the above alleged negligence[5-8] constituted a proximate cause of the damage and injury, plaintiff sought to prove by a member of the Glendive fire department, a volunteer organization to which he had belonged for nineteen years, and during which period he had attended practically every fire started in the city, that, with the equipment and water pressure present at the fire and the same fire force, the last three fires had been successfully extinguished after they had gained greater headway than the instant fire, and that this fire could have been put out within forty-five minutes after the department arrived, without damage to plaintiff's property, "if some strange substance had not been affecting the flames." Plaintiff further attempted to prove by the chief of the fire department, who had twenty-five years.' experience fighting fires, that, had the gas been cut off from the building at 2:45 A.M., when an employee of the defendant unsuccessfully attempted to cut it off, the fire could have been confined to the basement, without damage to plaintiff's property. This testimony, with offers of proof thereon, was excluded.

It is now contended that the testimony of the first witness was incompetent, as all of the facts concerning the fire were before the jury, and that, as to the second, the offer contained a "hypothesis having no foundation in the evidence," to wit, that an employee of the defendant was on the ground at 2:45 A.M., and finally that neither witness was competent to testify as an expert.

As purveyors of such potentially dangerous commodities as electricity and gas, the defendant should maintain a department wherein men are subject to call at any hour of the day or night to meet an emergency, but no duty rested upon it to have a man on hand to cut off the electricity in every instance of fire. "The utmost that will be exacted of lighting companies in this regard is that they shall hold themselves in readiness to cut off the electricity when the necessity arises and they are informed of it by proper authority." (Pennebaker v. San Joaquin L. P. Co.,158 Cal. 579, 112 P. 459, 461, 139 Am. St. Rep. 202, 31 L.R.A. (n.s.) 1099.) There is evidence in the record that the defendant met the above requirements, and that, on request, the electric supply wires were cut, but the "unusual" condition referred to may have been due to escaping gas, and the excluded testimony did not refer to electricity.

With all the facts before the jury, expert opinion evidence is admissible when it is not possible for the jury to form its own conclusions from the testimony. (Cummings v. Reins CopperCo., 40 Mont. 599, 107 P. 904; Yergy v. Helena L. Ry.Co., 39 Mont. 213, 102 P. 310, 18 Ann. Cas. 1201.) O'Malley, the fire chief, testified that Bentik, who was the defendant's gas service man, "was there by 2:45, that was the time I saw him with these tools" — the time when he was trying to shut off the gas. Each of the questions above should therefore have been answered, providing the witnesses were competent to testify as experts. Similar inquiries of "skilled firemen" are held to be proper. (First National Bank v. Fire Assn., 33 Or. 172, 50 P. 568, 53 P. 8; Walker v. State,58 Ala. 393.) But counsel for defendant assert that, because these men were members of a volunteer fire department, one being an electrician and the other a transfer man, they do not come within the term "skilled firemen." It is not the manner in which a man secures his employment, but the nature of his employment and his experience which determine whether or not he is a competent expert witness. A man employed as a volunteer fireman for a period of eighteen to twenty-five years, and attending all fires in the city, secures the same experience in fighting fires as would a paid fireman serving for the same period. "It frequently happens that a witness, by reason of his special skill or experience along certain lines, is able to estimate more correctly than it would be possible for the jury to do, the cause of an observed phenomenon, or the effect of a particular occurrence, and under these circumstances the witness is permitted to state his inference." (22 C.J. 647.)

The court erred in excluding the testimony of the experienced firemen on the ground that their testimony was "incompetent."

The defendant, however, contends that the record discloses no evidence of gas escaping in the building prior to its collapse, and, consequently, that the evidence was incompetent.

These expert witnesses were present striving to extinguish the fire; the first was of the opinion that this could have been easily accomplished had it not been for the presence "of some strange substance"; and the second spoke as from knowledge that gas was escaping. Their credibility and the weight to be given to their testimony, had the testimony been admitted, would have been the subject of cross-examination and contradictory testimony. In[9] this connection, one Atwood testified that, before the fire had gained any headway in the residence portion of the building, he went with his brother, since deceased, to his brother's apartment, and there noticed a peculiar odor to the smoke in the building, and stated to his brother that it was "the queerest smelling smoke I ever smelled," to which his brother replied that it was gas. This testimony was admitted over the objection that it was hearsay and on the assertion that it was a part of the res gestae. However, at the close of plaintiff's case, the court ordered this testimony stricken; error is specified on this action of the court.

Section 10511, Revised Codes of 1921, declares that "where, also, the declaration, act, or omission forms part of a transaction, which is itself the fact in dispute, or evidence of that fact, such declaration, act, or omission is evidence, as part of the transaction." This section states one of the exceptions to the rule excluding hearsay testimony. "The principle upon which the exception is founded is that the declarations were made while the mind of the speaker was laboring under the excitement aroused by the incident, before there was time to reflect and fabricate, and hence the solemnity of the oath is not necessary to give it probative value." (Callahan v.Chicago etc. Ry. Co., 47 Mont. 401, 133 P. 687, 689, 47 L.R.A. (n.s.) 587. See, also, State v. Tighe, 27 Mont. 327,71 P. 3; State v. Biggerstaff, 17 Mont. 510, 43 P. 709;Sullivan v. Metropolitan Life Ins. Co., 96 Mont. 254, 29 P.2d 1046.) The testimony should not have been stricken.

Negligence is predicated upon the manner in which the[10] Frigidaire was repaired by an employee of the defendant company. While it appears from the evidence that this employee had nothing to do with the "electrical side" of the machine, it is shown that he did make repairs on the "chemical side" by renewing the fluid which had leaked out, and, according to his own testimony, by repairing the pipes through which the fluid had escaped. An expert in connection with Frigidaire machines voiced the opinion that the overheating of the "electrical side" and consequent fire was due to the failure properly to repair the "chemical side" of the Frigidaire. This witness stated that, "when the man replaced the fluid in the motor, he didn't fix the leak; * * * the solution gradually leaked out again, and it came to the point on the night of the fire where the motor stopped again." This testimony was stricken on motion.

Perhaps it should have been made more clear that this statement was the expert opinion or theory of the expert, rather than his statement of a fact, but as an expert opinion, based on conditions shown to have existed, it was admissible. As a part of the foundation for the expression of the above opinion, the expert was shown the cable which had connected the motor with the switch-box and which had been at white heat when the fire department arrived, which fact, with others, was called to the attention of the witness, and he was asked, "What, if any, evidence can you see on Exhibit 1 which would necessarily result from a shortage of liquid in the Frigidaire?" His answer was, "It is very apparent that there was a short circuit in the wires that burned that through. It sealed the wire. It is an electric weld. No building is hot enough to burn that. That is an apparent electric weld, caused by a short circuit in the wire." This evidence was stricken as a "conclusion of the witness." Of course, it was a conclusion, but it was one which, under the rules above announced, an expert electrician was entitled to voice; the jurors would manifestly be unable to draw their own conclusions from the mere facts and an inspection of the exhibit. The court, therefore, erred in striking the testimony.

The remaining specifications of error have been examined and found without merit.

For the manifest errors reviewed above, the judgment is reversed and the cause remanded for a new trial.

MR. CHIEF JUSTICE SANDS and ASSOCIATE JUSTICE ANDERSON, concur.

MR. JUSTICE STEWART, deeming himself disqualified, and MR. JUSTICE MORRIS, absent on account of illness, take no part in the foregoing decision.

Rehearing denied February 27, 1935.