Fairbanks, Morse & Co. v. Gambill

• Decision Date: 18 May 1920
• Citation: 222 S.W. 5,142 Tenn. 633
• Parties: FAIRBANKS, MORSE & CO. ET AL. v. GAMBILL.
• Court: Tennessee Supreme Court

222 S.W. 5

142 Tenn. 633

FAIRBANKS, MORSE & CO. ET AL. v. GAMBILL.

Supreme Court of Tennessee.

May 18, 1920

Certiorari to Court of Civil Appeals.

Action by Charles H. Gambill against Fairbanks, Morse & Co. and another. Judgment for the plaintiff in the circuit court was reversed by the Court of Civil Appeals, and plaintiff brings certiorari. Judgment of Court of Civil Appeals modified, and that of circuit court affirmed on condition that plaintiff accepts a remittitur of part of the amount awarded.

E. T Seay, Jno. B. Keeble, and F. M. Bass, all of Nashville, for plaintiff in error.

W. H Washington, B. D. Shriver, and J. E. Travis, all of Nashville, for defendants in error.

HALL J.

An action of damages instituted in the circuit court of Davidson county by the plaintiff, Charles H. Gambill, against the defendants, Fairbanks, Morse & Co. and D. K. Lee, to recover for personal injuries alleged to have been sustained by the plaintiff as a result of the negligence of the defendants. The trial of the case in the circuit court resulted in verdict and judgment for the plaintiff for $5,000.

Defendants' motion for a new trial having been overruled, an appeal in the nature of a writ of error was taken by the defendants to the Court of Civil Appeals. That court reversed the judgment of the circuit court, and dismissed the suit upon the ground that there was no evidence to support the verdict and judgment, and that the defendants' motion for a directed verdict, made at the conclusion of all the evidence, should have been sustained by the trial judge. The Court of Civil Appeals also sustained the defendants' assignment of error going to the excessiveness of the verdict, being of the opinion that the verdict of $5,000 was excessive in view of the nature of the plaintiff's injuries. The plaintiff filed his petition in this court for a writ of certiorari which was granted, and the case is now before this court for review.

The plaintiff's declaration contains one count, and avers that the plaintiff was working as a laborer for the Tennessee Central Railroad Company at the time of sustaining his injuries, and used in his work a certain office in the railroad yards of said company in Nashville, Tenn.; that the defendant D. K. Lee was demonstrating a motor hand car belonging to the defendant Fairbanks, Morse & Co., which hand car was propelled by gasoline; that said Lee, being the agent of the defendant Fairbanks, Morse & Co., and while acting within the general scope of his authority as such agent, brought into the office of the plaintiff a can, such as is commonly used to contain coal oil, without any mark upon it indicating its explosive qualities and asked permission of the plaintiff to store the can in his (plaintiff's) office, assuring plaintiff at the time that it did not contain anything dangerous or explosive, and "negligently impressed plaintiff with the belief that it was coal oil, entirely harmless, and only had the properties of coal oil, and thereby threw plaintiff off his guard, whereas in truth and in fact it was pure gasoline, a highly volatile and dangerous explosive"; that on the day of the accident, to wit, 28th day of December, 1916, plaintiff, mistaking said can for his own can, which contained coal oil, and which was similar to the can left in the office by the defendant Lee, use it to pour some coal oil on the kindling to start the fire in the office stove, a use entirely harmless and without danger for coal oil or any other oil of similar properties, and while doing so plaintiff was in the exercise of ordinary care, but that by reason of the negligence of the defendants, and as a proximate result of being deceived and misled as to the identity, nature, and dangerous and explosive qualities of the contents of said can, it took fire and exploded with terrific force and violence, covering plaintiff with sheets of flames, whereby his body, head, face, nose, hands, arms, and legs were severely burned.

Both defendants filed pleas of not guilty. The defendant Fairbanks, Morse & Co., however, first filed a plea in abatement to the jurisdiction of the court upon the ground that it was not in court by proper service of process by reason of the fact that the defendant D. K. Lee, upon whom process was served, was not at the time of the service an officer of the company, but was merely an employé or traveling salesman or solicitor for said defendant company, and was not therefore, such agent or representative as that service of process issued against said defendant could be properly and lawfully executed upon said Lee.

There was no replication filed, or issue joined on said plea in abatement, and no action of the court was in any manner invoked by the defendants upon it after it was filed. So far as the record shows, it was entirely ignored by the parties to the suit and the court, and the case was proceeded with on the merits. This amounted to a waiver of the plea in abatement.

Upon the trial in the circuit court plaintiff testified that during the year 1916 he was in the service of the Tennessee Central Railroad Company as a car inspector in its yards at Nashville; that he had an office in the east end of what was called the old freighthouse; that the defendant D. K. Lee was engaged in the business of demonstrating motor hand cars for the defendant Fairbanks, Morse & Co., that is, hand cars operated by gasoline power; that in the summer of 1916, the defendant Lee was down in the yards of the Tennessee Central Railroad Company, demonstrating a hand car which he had for sale, and which he desired to sell to the Tennessee Central Railroad Company, and that about noon Lee walked into his (plaintiff's) office with a can of oil of some kind in his hand, and asked him if he would allow him (Lee) to leave it there. Plaintiff says that he asked Lee if there were any gasoline about it, and that Lee replied, "No;" that he asked Lee if there were anything dangerous or explosive about it, and that Lee replied, "No;" that thereupon he (Gambill) told Lee that the company (Tennessee Central Railroad Company) had an oil house up there near the shop, and he could go and leave the oil there, and that Lee replied that it was so far up there he did not care to go. The plaintiff says he then stated to Lee that the track walker had an old shanty at the spur track, and that possibly the track walker would let him leave his oil there; that Lee replied, "No, I will just leave it here," and set it down in one corner of the office. Plaintiff further testified that as Lee started out of the office he (Lee) said if anything happened he would be responsible for it. Plaintiff says that he got the impression from the statements made by Lee that the contents of the can were entirely harmless and not explosive. He says the can was an ordinary coal oil can, and was just like the can he (plaintiff) kept in the office, which contained coal oil. The plaintiff testified that he kept coal oil in the office for the purpose of filling his lanterns, and was also in the habit of kindling fires in the office stove with coal oil; that he would usually put kindling in the office stove and pour a little coal oil on it and stick a lighted match to it, and in this way start the fire; that he had been doing this for a long time, and did not regard it as dangerous to do so. Plaintiff further testified that the can remained in his office until the 28th day of December, 1916, when he went into the office early in the morning between 6 and 6:30 o'clock and put some coal and kindling in the stove, and picked up a can which he thought was his own can containing coal oil, which he had been in the habit of using to start the fire, but by mistake got hold of the can which had been left in the office by the defendant Lee, which contained gasoline, and poured it on the kindling in the stove, and it happened that there were some life coals in the stove, which fact was not known to him, as there had been no fire in the stove since the day before the accident, and the can immediately exploded with terrific force, throwing the burning gasoline and fire on his body, seriously burning him about the hands, arms, and face. He testified that other railroad employés had access to his office, and some one had moved his can from the place where he usually kept it, and placed the can containing the gasoline in its stead the night before the explosion without his knowledge.

Plaintiff's testimony as to the representations made to him by Lee as to the contents of the can at the time he left it in the plaintiff's office is substantially corroborated by the testimony of the witness Monroe Bostick, who testified on behalf of the plaintiff. Bostick says that he was in the office of the plaintiff when Lee brought the can in and asked the plaintiff if he could leave it in the office. Bostick says the plaintiff asked Lee what was in the can, stating to Lee that the company did not allow him to keep any explosives in the office. Bostick says that Lee told plaintiff that the can did not contain any explosive; that it wouldn't explode.

The defendant Lee testified on behalf of the defendants, and admitted leaving the can of gasoline in the plaintiff's office; testified that the plaintiff was familiar with the contents of the can, and denied that he told the plaintiff that the can did not contain anything explosive. He testified that the plaintiff did not ask him as to the contents of the can at the time he left it in his (plaintiff's) office, and that he made no representation whatever to plaintiff as to the contents of said can.

The jury, however, settled this controverted question of fact in favor of the contention of the plaintiff, and this court must therefore accept the version of the...