Act-O-Lane Gas Service Co. v. Clinton, ACT-O-LANE

• Decision Date: 10 January 1951
• Docket Number: ACT-O-LANE
• Citation: 35 Tenn.App. 442,245 S.W.2d 795
• Parties: GAS SERVICE CO., Inc. v. CLINTON et ux.
• Court: Tennessee Court of Appeals

Page 795

245 S.W.2d 795

35 Tenn.App. 442

ACT-O-LANE GAS SERVICE CO., Inc. v. CLINTON et ux.

Court of Appeals of Tennessee, Eastern Section.

Jan. 10, 1951 Certiorari Denied by Supreme Court Aug. 31, 1951.

Strang, Fletcher & Carriger, Chattanooga, for plaintiffs in error.

Steven C. Stone, Chattanooga, for defendants in error.

HOWARD, Judge.

Referring to the parties as they appeared in the court below, the plaintiffs, Mr. and Mrs. Julius Clinton (husband and wife), jointly sued the defendant, Act-O-Lane Gas Service Co., Inc., for damages to both real and personal property resulting from an alleged breach of contract. There was a jury verdict for the plaintiffs from which the defendant appealed to this court, assigning errors which will be hereinafter considered.

At the time the matters herein arose the plaintiffs were residents of the State of Georgia, living at or near Tunnel Hill, on Highway 11, about 20 miles south of Chattanooga, where they owned a modest four-room home which was formerly heated with an oil stove and a coal heater. Clinton was regularly employed as a boiler repairer for a Chattanooga concern, and out of town work compelled his being away from home continuously for periods of from four to five months. Mrs. Clinton was also employed as a supervisor at a chenille plant located across the highway from their home, and except at night and on weekends she was seldom at home. It appears that she kept at her home a large quantity of materials from which chenille garments or products are made, as well as several of the machines used for making said products, and that some of these finished articles were kept in her home for sale to the public.

The defendant corporation was organized in 1947 with its principal office at Chattanooga, Tennessee. It has subsequently engaged in the sale and distribution of propane gas and various types of household appliances in which said gas was used. The facts are undisputed that in May 1947 the defendant's agent entered into a contract with plaintiffs to sell them certain household appliances and propane gas to be used in connection therewith, at a total cost, including installation, of nearly $1,000, for which plaintiff, Julius Clinton, signed two title retention notes payable in 12 and 36 monthly installments.

Taking up the defendant's assignments, it is first insisted that plaintiffs adduced no material evidence to support the verdict, and that the trial court erred in refusing to sustain the defendant's motion for peremptory instructions made at the conclusion of all the evidence. In considering whether or not there is any merit in the defendant's insistence, we must take the strongest legitimate view of the evidence in favor of plaintiffs, construe it most favorably to them, and indulge all reasonable inferences to uphold the verdict. Western Union Tel. Co. v. Lamb, 140 Tenn. 107, 203 S.W. 752; Wildman Mfg. Co. v. Davenport Hosiery Mills, 147 Tenn. 551, 249 S.W. 984; Osborn v. City of Nashville, 182 Tenn. 197, 185 S.W.2d 510; Good v. Tennessee Coach Co., 30 Tenn.App. 575, 209 S.W.2d 41, 43. Applying the foregoing rule to the evidence presented here, we think that this assignment is without merit.

According to the plaintiffs, the defendant's agent, Holbrook, represented that the gas was a good, dry gas and that it would produce a clean dry heat, better than any other heat on the market; that the gas was represented to be hotter and better for heating purposes than either coal, electricity, oil or natural gas, and that it would be much cleaner and drier than their present type of heat; that the gas was represented to be so hot that it would consume the moisture, if any, and there would be no fog on the windows, and that three heaters used singularly or collectively would adequately heat their home; that upon these representations they purchased from defendant three unvented space or room heaters, a gas range and a gas refrigerator, which were delivered and installed in their home with the necessary pipe connections to a tank outside the house where the gas was stored, and that defendant's agents gave them no instructions as to how the gas should be used or how the appliances were to be operated; that during a cool spell in October 1947, Mrs. Clinton started the bedroom heater, and that within twenty or thirty minutes the windows of the house were covered with fog; that because she was away from home during the daytime she burned only her bedroom heater at night, except occasionally when company came in she would burn two of the heaters. Noticing the moisture, Mrs. Clinton stated that she immediately called Holbrook on the telephone and complained to him about the condition; that Holbrook came out and on seeing the moisture stated that he didn't know what was causing the trouble unless there was some water in the gas tank; that shortly thereafter the heater in the bedroom got out of order and wouldn't burn, and Mr. Core, defendant's superintendent, discovered that the flow of the gas had been cut off by ice forming in the pressure reducing valve on the heater, and that by removing the ice the condition was corrected, but not for long as it subsequently occurred several times.

Mrs. Clinton stated that Holbrook, on one of his frequent visits, told her that defendant's heating engineer, Lambert, had gone out of the city to ascertain the cause of the dampness and that upon his return he (Lambert) would try to find out what was causing the moisture in her home, and that later Lambert, in discussing the matter with her, said: 'Mrs. Clinton, to save my life I have no explanation for this moisture'; that around Christmas 1947 when the gas was again cut off by ice forming in the pressure reducing valves, Lambert sent out one of the defendant's employees to put alcohol in the gas tank, but this did not prevent the gas line from freezing, nor did it eliminate the moisture; and that neither Lambert, Holbrook nor any of the defendant's agents ever said anything about ventilating the house by raising or lowering the windows while the heaters were burning.

Upon discovering that the moisture was damaging everything in the house, including the materials and machinery used in manufacturing chenille products, Mrs. Clinton said that she requested defendant's employees to remove the heater from the back bedroom into the kitchen, and that said employees also removed one of the closets in the house in an effort to eliminate the dampness, but that neither of these moves improved the situation.

The plaintiffs testified that after using the gas several times they discovered everything in the house was damp and covered with moisture; that the bedclothes became so damp they felt like they had just come off the clothes line, the freshly washed and ironed curtains became limp, and their personal clothes and the bedclothes mildewed and lost color. They said that streaks appeared in the paint on the walls and woodwork, and that the walls were damp like a cave; that the furniture which had been put together with glue came apart, the veneer buckled and peeled off, and the rugs on the floors became so damp they mildewed; that a large number of chenille garments as well as valuable materials from which the garments were made became damp and mildewed, were unsalable and could not be used, and that the machinery was damaged to such an extent that it was practically worthless.

Plaintiffs' testimony regarding the cause and extent of their damages was not controverted by the defendant. The record reveals that about 7 per cent of the defendant's customers in the Chattanooga area complained about the excessive moisture produced by the gas.

Defendant introduced three witnesses who qualified as experts in the Petroleum Industry. These witnesses testified that all gas in burning gave off moisture in the form of water vapor, but that this did not result from any defect in the gas but was the result of the normal operation of the laws of nature; that propane gas contained only a very small percentage of water, and that it was impossible for the gas to produce any great amount of moisture. They said that the moisture in plaintiffs' home resulted from the improper use of the gas and heaters; that plaintiffs purchased individual room heaters and that if they had used all the heaters at one time to heat the house instead of only one, that the results would have been satisfactory. They explained that plaintiffs' house got cold at night as well as in the daytime while they were away, and that when the warm air produced by the heater came in contact with the cold air a certain amount of fog or condensation was created, particularly noticeable on the windows, and that this condition could have been remedied by proper ventilation such as raising or lowering the windows.

It is urged on behalf of the defendant that the trial court should have directed a verdict on the undisputed expert testimony of its witnesses. In the light of the plaintiffs' proof we are unable to agree with this insistence. Besides, none of these witnesses ever visited plaintiffs' home and they had no personal knowledge of the conditions existing there, and one of them, a Mr. Ames, Chief Chemist of the Esso Standard Oil Company of Louisiana, admitted that in 1947 his company shipped three cars of gas to the defendant, and that these cars arrived at defendant's plant in October. He testified that the gas included in these shipments had failed to pass the Cobalt Bromide test, commonly referred to as the moisture test, a scientific method used to ascertain the water content in propane gas, and defendant's records showed that defendant sold and delivered to plaintiffs more than 450 gallons of gas during the months of October and November. Witnesses for the defendant admitted that when the gas contained water the pressure reducing valves on heaters would freeze and that the pouring of alcohol into the gas tank was one of the...