John R. Francis Bldg. Co., Inc. v. Bob Meador Co., Inc.

• Decision Date: 18 December 1974
• Docket Number: No. 1029,1029
• Citation: 517 S.W.2d 693
• Parties: JOHN R. FRANCIS BUILDING COMPANY, INC., Appellant, v. BOB MEADOR COMPANY, INC., Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 693

517 S.W.2d 693

JOHN R. FRANCIS BUILDING COMPANY, INC., Appellant, v. BOB MEADOR COMPANY, INC., Appellee.

No. 1029.

Court of Civil Appeals of Texas Houston (14th Dist.).

Dec. 18, 1974.

John B. Patrick, Francis, Patrick & Robertson, Henry P. Giessel, Alice Giessel, Talbert Giessel & Stone, Houston, for appellant.

James B. Sales, Fulbright & Jaworski, Houston, for appellee.

TUNKS, Chief Justice.

In this case the appellant, John R. Francis Building Company, Inc. (Francis), as plaintiff in the trial court, sought to recover judgment against Bob Meador Company, Inc. (Meador) for damage to a house owned by Francis. The damage to the house was caused by fire.

The case was tried to a jury. At the close of plaintiff's testimony, the defendant moved for instructed verdict. The defendant's motion was granted and the trial court rendered judgment that the plaintiff take nothing. Francis has perfected appeal to this Court.

We affirm the judgment of the trial court that there was no evidence that Meador was guilty of negligence, as pled by Francis, which caused the house to burn.

Francis, a home builder, built the house in question. Meador contracted for the installation of the central air conditioning system in the house. The house was completed except for the installation and connection of the compressor for the air conditioning. In connecting the compressor, a welding machine was used. Francis pled that the use by Meador's employee of the welding machine caused the fire. He pled two specific acts of negligence: one, the use of a defective welding machine, and two, the negligent use of the welding machine so as to cause sparks to escape from it and ignite the house.

At the jury trial, the evidence consisted of the testimony of John R. Francis, Jr., the shareholder of the appellant corporation, a deed of conveyance of the property where the fire occurred from the subdivision developer to appellant, and ten photographs of the destroyed house taken by Francis after the fire. Francis testified that on the day of the fire, he drove by the house some time between 9:00 and 10:30 a.m. At that time, he observed a man, whom he had seen on prior occasions working for appellee. This man was unloading an air conditioning compressor off a truck identified as belonging to appellee. Francis said that the air conditioning work was the only work being done on the house that day. He left the area, and when he returned between 11:30 and 12:00 noon, the house was on fire. Francis described the procedure for installing an air conditioning compressor and offered the theory that appellee's employee was negligent in hooking the compressor to the tubing in the wall of the house. Under this theory, he contended that the employee was negligent in the use of acetylene torch, which is used to solder the tubes from the compressor to the tubes coming out of the wall. He pointed to one of his photographs of short three- to four-inch tubes coming out of the wall, and testified that it is customary for these tubes to extend two feet on the exterior of the house. He said that to solder such short tubes, one must take precautions or the flame from the torch could easily enter the hole in the wall and ignite the insulating material found therein. Francis testified that appellee had installed the air conditioning evaporator in the attic and the wiring leading down the wall to the hole where the compressor was hooked up. Between the exterior brick veneer and the inside wall of the house was free flowing air. In case of fire, Francis said this air space would act like a chimney and carry the hot air up to the attic. He said that although the attic and upper story were destroyed, the only damage to the first story, other than smoke damage, was in the wall where the copper leading to the compressor was located. He testified that it is his experience that most fire damage occurs toward the top of a building.

Negligence and causation may be established by circumstantial evidence. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273 (1958). But neither negligence nor causation will be presumed. East Texas Theatres, Inc. v. Rutledge, 453 S.W.2d 466 (Tex.Sup.1970); Texas & P . Coal Co. v. Kowsikowsiki, 103 Tex. 173, 125 S.W. 3 (1910); McGill v. Minyard's Food Stores, Inc., 417 S.W.2d 309 (Tex.Civ.App.-Dallas 1967, writ ref'd n.r.e.). Nor can one presumption be based upon another presumption nor an inference of fact upon other inferences. Hamilton v. Newbury, 412 S.W.2d 801 (Tex.Civ.App.-Dallas 1967, writ ref'd n.r.e). 'The fact relied upon to support the presumption must be proved and no inference can be drawn except one which rests upon facts established by legal and competent evidence.' McClish v. R. C . Young Feed & Seed Co., 225 S.W.2d 910, 913 (Tex.Civ.App.-Amarillo 1949, writ ref'd). 3 R. McDonald, Texas Civil Practice, § 11.28.3, at 240--41 (1970).

The mere happening of damage by fire is no evidence of a defect in the welding machine or that it was used so as to permit sparks to ignite the house. See Mustang Aviation v. Ridgway, 231 S.W.2d 677 (Tex.Civ.App.-Dallas 1950, writ ref'd); Ablon v. Hawker, 200 S.W.2d 265 (Tex.Civ.App.-Dallas 1947, writ ref'd n.r.e.). In Bass v. General Motors Corporation, 447 S.W.2d 443 (Tex.Civ.App.-Fort Worth 1968, writ ref'd n.r.e.), an automobile owner sued the manufacturer and dealer for damages caused by a fire which started when the vehicle was parked and unoccupied. The plaintiff claimed that the electrical wiring was faulty and that this was the cause of the fire . He...