Adams v. Wilkes

• Decision Date: 10 October 1921
• Docket Number: 10735.
• Citation: 109 S.E. 804,118 S.C. 93
• Parties: ADAMS v. WILKES ET AL.
• Court: South Carolina Supreme Court

109 S.E. 804

118 S.C. 93

ADAMS v. WILKES ET AL.

No. 10735.

Supreme Court of South Carolina

October 10, 1921

Appeal from Common Pleas Circuit Court of Laurens County; Ernest Moore, Judge.

Action by J. J. Adams against S. M. Wilkes and others, partners in trade, and doing business under the firm name of S. M. & E H. Wilkes & Co. Judgment for defendants, and plaintiff appeals. Affirmed.

Richey & Richey and H. S. Blackwell, all of Laurens, for appellant.

Simpson Cooper & Babb and Featherstone & Knight, all of Laurens, for respondents.

COTHRAN J.

Action for $7,000 damages, alleged to have been sustained by the plaintiff, in the destruction of his dwelling house by fire caused by the alleged negligence of the defendants in installing a heating plant, which they had undertaken under a written contract. The case was tried before Judge Moore and a jury, November term, 1920, and resulted in a verdict for the defendant. Plaintiff appeals.

On April 2, 1919, the plaintiff and the de fendants entered into a written contract, by which the defendants undertook to furnish and install in the plaintiff's dwelling house a heating plant of specified description, with certain accessories mentioned, for $253.50. The contract contained a certain guaranty, the only portion of which pertinent to the present controversy is an undertaking on the part of the plaintiff to furnish "a suitable chimney," into the lower part of which the smoke pipe from the furnace was to be inserted.

The contention of the plaintiff was that the connection between the smoke pipe and the flue of the chimney was negligently made, in that the end of the pipe where it entered the chimney was so near the woodwork of the house, the sill, and hearth box that the latter caught fire from the heat of the pipe and destroyed the house. The defendants contend that the installation was properly completed and that the fire originated from some other cause. Each contention was supported by more than a dozen witnesses. The issue was sharply drawn, one of fact, submitted to the jury in an exceedingly clear and fair charge; they decided it in favor of the defendants, and their verdict cannot be disturbed unless the appellant has been able to point out prejudicial error in the admission of testimony or in the charge of the presiding Judge. This he has failed to do, as we will endeavor to demonstrate.

The first exception imputes error in refusing to allow the witness Fitzsimmons to state that the pipe was not properly installed, and to state where, in his opinion, the fire started, the witness having as claimed, qualified as an expert in the investigation and location of the origin of fires.

The witness was allowed to state that the flue (of the chimney) was built wrong; that the pipe entered the corner of the chimney; that to be safe it should have entered in front of the fireplace, and not at the corner of the chimney with an elbow; that, entering the corner, there should have been a course of two bricks laid flat between the entrance of the pipe and any inflammable material. It was a necessary conclusion from this testimony that the pipe was not properly installed, which the jury were as capable of forming as the witness, and must have formed if they believed the witness. The refusal to allow the witness to state the only possible conclusion from this testimony was entirely proper.

The question of the origin of the fire was one of the issues of fact in the case, to be determined by the jury from the evidence....