Alabama Power Co. v. Pierre

• Decision Date: 06 October 1938
• Docket Number: 1 Div. 2.
• Parties: ALABAMA POWER CO. v. PIERRE ET AL.
• Court: Alabama Supreme Court

183 So. 665

236 Ala. 521

ALABAMA POWER CO. v. PIERRE ET AL.

1 Div. 2.

Supreme Court of Alabama

October 6, 1938

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

Action by William A. Pierre and Fannie Pierre against the Alabama Power Company for fire loss allegedly occasioned because of negligence of defendant's employees. From a judgment for plaintiffs, defendant appeals.

Affirmed.

Inge &amp Stallworth, of Mobile and Martin, Turner & McWhorter and J C. Blakey, all of Birmingham, for appellant.

Gordon Edington, Leighs & Gordon, of Mobile, for appellees.

GARDNER Justice.

W. A. Pierre and wife jointly owned a residence lot on Mobile Bay, upon which they erected a dwelling house, and purchased from the Alabama Power Company certain electrical fixtures. This house was destroyed by fire when practically completed, and the Pierres brought this suit against the Power Company for damages thus suffered, charging that the loss of the house was caused by the negligence of the company's employees while doing work in connection with the installation of some of the fixtures.

At the threshold of the case is the insistence that the defendant was due the affirmative charge upon the theory that at best the evidence as to the cause of the fire was so uncertain, speculative and conjectural as to be insufficient upon which to rest the jury's verdict.

We gave application to the principle in the recent case of Georgia Power Co. v. Edmunds, 233 Ala. 273, 171 So. 256, where is cited Southern Railway Co. v. Dickson, 211 Ala. 481, 100 So. 665. From the opinion in the latter case the following excerpt was set out, and is here repeated as containing appropriate illustrative principles:

" 'Proof which goes no further than to show an injury could have occurred in an alleged way, does not warrant the conclusion that it did so occur, where from the same proof the injury can with equal probability be attributed to some other cause.'

"But a nice discrimination must be exercised in the application of this principle. As a theory of causation, a conjecture is simply an explanation consistent with known facts or conditions, but not deducible from them as a reasonable inference. There may be two or more plausible explanations as to how an event happened or what produced it; yet, if the evidence is without selective application to any one of them, they remain conjectures only. On the other hand, if there is evidence which points to any one theory of causation, indicating a logical sequence of cause and effect, then there is a juridical basis for such a determination, notwithstanding the existence of other plausible theories with or without support in the evidence."

The application of the stated doctrine is of course to be determined upon the peculiar facts in each particular case.

And considered in the light of the evidence adduced upon the hearing we are persuaded a jury question was presented. No detail statement of the proof is necessary, and we consider a general summary will suffice.

The plumbers were at work in the kitchen as late as 6:35 P. M. The earliest hour of the discovery of the fire was 8:30 P. M. by a neighbor who states the fire was in the kitchen, which is located in the northwest corner of the house, and that flames were then of such intensity as to have melted the window panes, and was protruding through the window. The window of the kitchen had been pulled down and the door closed. The plumbers were using a blowtorch which emitted flames some eight or ten inches in length, and were also using matches, both in the kitchen and under it where there was inflammable material. The blowtorch was used under the kitchen and matches struck under it, and the plumbers warned of the danger in such use. They admitted that a flashlight should have been used, and that the method followed was improper, but the flashlight had been forgotten. Others working at the house insisted they struck no matches, and did no smoking in the kitchen. While some time elapsed between the hour of departure of the plumbers and the discovery of the fire then in full force, yet Pierre, the owner, and the plumbers left about the same time, and no one saw any indication of fire as they were leaving.

The kitchen was left closed, and the jury could reasonably infer that even a spark might have been left smoldering in the kitchen or under it for some time before it would break into a flame.

There was proof tending to show negligent handling of the blowtorch in the kitchen. The neighbor who discovered the fire states that it was confined entirely to the kitchen and the flames were then flowing out of the window two or three feet.

True, there is no positive proof as to the cause of the fire, and many different causes may be imagined. But where, as here, the evidence points to one theory of causation, indicating a logical sequence of cause and effect, there is a juridical basis for such determination, notwithstanding the existence of other plausible theories, whether with or without support in the evidence.

In the instant case we are of the opinion a reasonable inference is deducible from the evidence that the fire did in fact originate from the careless manner in which the plumbers used the torchlight and struck matches underneath the kitchen, and that, therefore, it cannot be said the evidence is without "selective application" as to plausible explanation of its origin. The affirmative charge requested upon the contrary theory was of consequence properly refused.

Defendant insists, however, that if the correctness of the foregoing conclusion be conceded, yet there is no liability, as the plumbers were in the employ of one Bailey who was, as to this defendant, an independent contractor, and of consequence defendant had no supervision over the work then being done, citing General Exchange Ins. Corp. v. Findlay, 219 Ala. 193, 121 So. 710, noted in the more recent cases of Birmingham Post Co. v. Sturgeon, 227 Ala. 162, 149 So. 74, Greenwald v. Russell, 233 Ala. 502, 172 So. 895, and Wade v. Brisker, 233 Ala. 585, 173 So. 64.

It is, of course, the well settled general rule that one is not ordinarily responsible for the negligent conduct of his independent contractor. But the rule has exceptions, one of which is that a person is responsible for the manner of performance of his non-delegable duties, though done by an independent contractor. This exception was here given recognition in Dixie Stage Lines v. Anderson, 222 Ala. 673, 134 So. 23, and Alabama Power Co. v. Emens, 228 Ala. 466, 153 So. 729.

Plaintiffs' proof tended to show that, in the purchase of electrical equipment for their residence for a fixed sum, it was an inducement to close the trade and make the purchase from defendant, that defendant, a responsible and solvent concern agreed to install the same in the house without cost to these plaintiffs. They had no knowledge of, nor were they...