Benson v. Fowler

• Decision Date: 21 June 1957
• Citation: 43 Tenn.App. 147,306 S.W.2d 49
• Parties: James B. BENSON v. H. E. FOWLER and Nu-Gas Company, Inc. 43 Tenn.App. 147, 306 S.W.2d 49
• Court: Tennessee Court of Appeals

Page 49

306 S.W.2d 49

James B. BENSON v. H. E. FOWLER and Nu-Gas Company, Inc.

43 Tenn.App. 147, 306 S.W.2d 49

Court of Appeals of Tennessee, Western Section.

June 21, 1957.

Certiorari Denied by Supreme Court Oct. 4, 1957.

[43 TENNAPP 152] Lloyd Tatum, Henderson, and Fonville & Diamond, Jackson, for plaintiff in error.

Hancock & Manhein and G. L. Morrison, Jackson, for H. E. Fowler.

Moss & Benton, Jackson, for Nu-Gas Co., Inc.

BEJACH, Judge.

This cause involves an appeal by James B. Benson, who was plaintiff in the lower court, from a jury verdict and judgment thereon in favor of the defendants in the Circuit Court of Madison County, Tennessee. For convenience the parties will be styled, as in the lower court, plaintiff and defendants or by their respective names. Plaintiff's suit is for damages resulting from the loss of three fingers on his left hand and one finger on his right hand, which fingers had to be amputated following the freezing of same, caused by contact with propane gas, while he was filling a tank attached to a tractor owned by defendant, H. E. Fowler, from a storage tank on the premises of said Fowler, the tank on the tractor in question and the gas having been sold by the defendant Nu-Gas Company. Plaintiff's declaration is in two counts. The first count charges common law negligence on the part of defendants, alleging 'that said defendants knew or should have known that propane gas is a highly dangerous liquified petroleum gas and especially dangerous and likely to cause [43 TENNAPP 153] serious injury when it leaks on or comes in contact with a person; that it was the duty of defendants to exercise a high degree of care, to see and know that the plaintiff and all persons intended to handle and use said propane gas be properly instructed in its use and in particular in regard to the peculiar, uncommon, and highly dangerous qualities and properties of said propane gas.' The second count charges violation by defendants of certain regulations promulgated by the Fire Marshal of the State of Tennessee, pursuant to authority vested in said State Fire Marshal by Chapter 191, Public Acts of 1947. The defendants filed pleas of not guilty and contributory negligence.

The proof established that the plaintiff, James B. Benson, worked as a sharecropper on the farm of defendant, H. E. Fowler, sometimes referred to as Hughey Fowler, located on the Beech Bluff road about five miles from Jackson, Tennessee; that the defendant, Nu-Gas Company, had installed propane gas tanks on the Fowler farm; that some two or three weeks before the 13th day of March, 1954, on which date plaintiff was injured, two tractors owned by Fowler and operated on his farm were equipped for use of propane gas as fuel for said tractors; that propane gas was stored in a large container tank in the rear of the Fowler residence, from which tank propane gas was also used for heating the Fowler residence. On March 13, 1954, while attempting to refuel a tractor tank from the storage tank, plaintiff was injured by the spewing of propane gas onto his hands for from two and a half to three minutes from an open valve on top of the tractor tank. It was plaintiff's contention, and he so testified, that he was performing this operation exactly as he had been instructed; that he knew the [43 TENNAPP 154] tractor tank was full, or 90% full, which was as full as it was supposed to be, when gas was vented from this open valve; that when gas began to come out of this valve on this particular occasion, he attempted to cut it off but could not because the cut-off mechanisms would not work. It is the plaintiff's contention that the cut-off mechanism failed to work because same had frozen, and there is some testimony in the record tending to show that under certain conditions such freezing could occur. Plaintiff testified that he tried to cut off the valve at the end of the delivery hose, then tried to cut off the open valve, and that when neither of these valves would operate, he finally cut off the flow of gas at the main storage tank, although he had not been instructed so to do. At the time of plaintiff's injury, he was refueling the tank on the tractor for the second time without assistance.

Plaintiff testified that neither defendant, H. E. Fowler, the Nu-Gas Company, nor anyone else had warned him that propane gas is highly dangerous if it leaked onto his hands, that he was only warned not to strike a match or smoke around propane gas, that no warning signs were posted around the gas tank installation, that he had no reason to suspect that propane gas was dangerous if it leaked onto his person, and that although he was present when the propane gas installation was made by defendant, Nu-Gas Company, and it knew he was going to operate the tractor, he was not warned.

On the other hand, witnesses for defendant Nu-Gas Company testified that plaintiff was present when the installation was made and that full and complete instructions and warnings were given which plaintiff either heard or could have heard at that time. Defendant, H. E. Fowler, testified that not only was plaintiff present [43 TENNAPP 155] when the installation was made, where and when he heard the instructions and warnings of representatives of the Nu-Gas Company, but that subsequently he had, himself, personally explained in detail all matters connected with the operation and had personally supervised and assisted plaintiff on several occasions prior to March 13, 1954, in refueling the tractors. Mrs. Melba Fowler, wife of defendant, H. E. Fowler, testified that on the morning of the accident, plaintiff excitedly ran into and out of the house three times, saying the first time, 'Mrs. Fowler, I can't get that hose off of the tank.' Whereupon she said, 'Well, just let it go, I will cut the pilot off on the heater'; that the second time he asked for a pair of gloves, whereupon, she said, 'Mr. Benson, I do not have any gloves, Hughey has the only pair in the field; just let that go, I don't think there is a bit of danger in the world'; that he said, 'I am afraid it will blow up'; to which she replied, 'I don't think there is a bit of danger, just get back and let it go'; that after the third time, she went out to the garage to get the car (to go after Mr. Fowler) and that just as she got to the garage Mr. Benson had the hose off the tank at the tractor and was holding it up. Mrs. Fowler testified that she then noticed that his hands were frozen and said, 'Come on, Mr. Benson, we have got to get you to a doctor'; that she opened the car door and he got in. Whereupon, she asked him, 'Do you want me to carry you on to the hospital, Mr. Benson, you will have to have something done to those hands, do you want me to carry you right on to the hospital, or would you rather go, home?'; that at his request she took him first to his home which was about a quarter of a mile away; and that from there, Mr. Fowler took Mr. and Mrs. Benson to the hospital.

[43 TENNAPP 156] At the conclusion of plaintiff's proof and also at the conclusion of all the proof, both defendants made motions for peremptory instructions, which motions were overruled. After the jury had considered the case, they were excused until the next day, at which time, by request of the foreman, the jury was recharged. Thereafter, the jury returned a verdict in favor of both defendants. Plaintiff moved for a new trial which was taken under advisement by the court. Later, the trial judge announced that the motion for a new trial would be granted, but before any order was entered on the minutes, he reconsidered the matter and overruled the plaintiff's motion for a new trial. Plaintiff excepted to the action of the court, prayed and perfected his appeal in the nature of a writ of error, and has filed sixteen assignments of error in this Court.

By assignments of error I and II, plaintiff contends that there is no material evidence to support the verdict, and that the verdict is contrary to the law and the evidence. We find no merit in either of these assignments. As was said by Howard, J., speaking for the Court of Appeals (Eastern Section) in Dickson Stave & Heading Co. v. Archer, 291 S.W.2d 603, 606:

'In ascertaining whether there is any material evidence to support the verdict, we are required to take the strongest legitimate view of all the evidence, * * * disregard all inferences to the contrary, and indulge all reasonable inferences to uphold the verdict.'

[43 TENNAPP 157] See, also, Jarratt v. Clinton, 34 Tenn.App. 670, 241 S.W.2d 941, and D. M. Rose & Co. v. Snyder, 185 Tenn. 499, 206 S.W.2d 897, 901.

Also, as was said by Avery, P. J. (W.S.), speaking for the Court of Appeals (Western Section) in the case of Callahan v. Town of Middleton, 292 S.W.2d 501, 504:

'This Court is not concerned with the preponderance of the evidence. If there was any material evidence to support the verdict of the jury it is the duty of this Court to sustain the verdict of the jury and judgment of the court thereon.'

See, also, Accident & Casualty Ins. Co. v. Lasater, 32 Tenn.App. 161, 165, 222 S.W.2d 202, and De Rossett v. Malone, 34 Tenn.App. 451, 239 S.W.2d 366. Assignments of error numbers I and II are, accordingly, overruled.

Assignment of error number III complains of action of the trial judge in setting aside the order sustaining plaintiff's motion for a new trial, recalling the motion for further argument, and then overruling the motion for a new trial. It is asserted that by this action the trial judge committed prejudicial error and that this action on his part indicates that in his capacity as a thirteenth juror who was dissatisfied with the verdict.

We find no merit in this assignment. Even if the trial judge's order granting the motion for a new trial had been entered on the minutes of his court, which in this case had not been done, it still would have been within the breast of the court and subject to alteration or recall...