Montgomery Ward & Co. v. Scharrenbeck

• Decision Date: 01 October 1947
• Docket Number: No. A-1229.,A-1229.
• Citation: 204 S.W.2d 508
• Parties: MONTGOMERY WARD & CO. et al. v. SCHARRENBECK et al.
• Court: Texas Supreme Court

Page 508

204 S.W.2d 508

MONTGOMERY WARD & CO. et al. v. SCHARRENBECK et al.

No. A-1229.

Supreme Court of Texas.

October 1, 1947.

Error to Court of Civil Appeals of Eleventh Supreme Judicial District.

Action by G. W. Scharrenbeck and wife against Montgomery Ward & Co., and Marcus H. Sessions for damages resulting from the burning of plaintiffs' home as the alleged result of negligence of individual defendant as an employee of corporate defendant, wherein Dubuque Fire & Marine Insurance Company intervened. A judgment for plaintiffs and intervener was affirmed by Court of Civil Appeals, 199 S. W.2d 830, and defendants bring error.

Judgments of District Court and Court of Civil Appeals affirmed.

Woodruff & Holloway and Gib Calloway, all of Brownwood, for petitioners.

Wilkinson & Griffin, Gordon Griffin and E. M. Davis, all of Brownwood, for Scharrenbeck et ux.

J. C. Darroch and Lee McCartney, both of Brownwood, for Dubuque Fire & Marine Ins. Co.

BREWSTER, Justice.

G. W. Scharrenbeck et al., respondents, sued Montgomery Ward & Company and its employee, Marcus H. Sessions, petitioners, for damages arising from the burning of their home because of the negligence of Sessions in repairing and adjusting a kerosene hot-water heater therein. Upon favorable jury findings respondents were awarded judgment against both petitioners, which was affirmed by the court of civil appeals. 199 S.W.2d 830.

Scharrenbeck bought the residence from one Willingham and moved into it on February 7, 1943. The heater, purchased by Willingham from Montgomery Ward & Co. some 16 months theretofore and continuously used by him, had been temporarily disconnected while Scharrenbeck was acquiring the place. Being unable to light the heater, Scharrenbeck called in a plumber, but the latter was not familiar with the heater and could not put it in operation.

Upon the plumber's advice to consult Montgomery Ward & Co., Scharrenbeck, on February 9, reported the condition of the heater to the manager of Montgomery Ward's store at Brownwood, who referred him to Sessions, the salaried head of the store's repair department. The guaranty under which the heater was sold having expired, Sessions agreed to put the heater in operation provided Scharrenbeck would pay Montgomery Ward & Co. for his services. It is undisputed that Sessions was authorized to make this agreement for his company and that the work subsequently done by him for Scharrenbeck was within the scope of his employment.

The heater was installed in the bathroom and was fueled through a line from an outside tank. The heater was cylindrical in form, with a hollow iron pipe some six inches in diameter extending vertically through it and on up through the ceiling some two feet above the roof. In the lower part of the heater were a burner pot, from which the heater was lighted, a constant-level fuel valve and a thermostat.

Sessions found that the fuel was not flowing properly through the constant-level valve and that some of the valve parts were corroded. So he removed, cleaned and replaced the corroded parts, decided that the fuel was flowing properly, and informed Scharrenbeck that the heater was ready to be lighted. As Sessions did not know how to light the heater, Scharrenbeck lit it, following the directions given on an attached metal plate; and there is no contention that he did not follow those directions.

After the kerosene was thus lighted, Sessions stayed with the heater for an hour and a half or two hours, waiting to see that the water heated properly; but the evidence is conflicting as to whether or not he then turned up the heat on the burner. After that period of waiting, the roof caught fire some 18 inches or two feet from the heater flue, the flames apparently being whipped out of, and away from, the flue by a strong north wind. The house and its contents were destroyed.

Petitioners complain of the action of the trial court in overruling a number of special exceptions which they filed against respondents' allegations of negligence on the part of Sessions in repairing and adjusting the heater. However, some of the acts and omissions alleged were not submitted to the jury and some of those submitted are immaterial so we need not consider the exceptions to them.

In relation to those exceptions which are relevant, the substance of respondents' allegations was that when they moved into the house they found the heater so out of condition that it would not heat water, which fact they reported to Montgomery Ward & Company's manager at Brownwood; that the manager informed them that his company kept Sessions employed "to make such repairs and do whatever was necessary to put such heaters in good operating condition", which it would do without charge if the guaranty given Willingham when the heater was sold was still in force, otherwise it would have Sessions make the necessary repairs and put the heater in working condition but Scharrenbeck would have to pay it for his services when the work was completed; that the manager then referred them to Sessions, who agreed to make the necessary repairs and put the heater in operation the next day, on condition that they pay Montgomery Ward & Co. for his services, which they agreed to do; and that Sessions came the next day to their home to make the repairs and to adjust the heater, or burner, and to put it in operation. Then the petition proceeds: "After working with said heater or burner, for some time, he advised plaintiffs that he had adjusted said heater, and burner, and that it was ready to light, and directed plaintiff G. W. Scharrenbeck to light the oil in the oil box under said burner. Thereafter, he spent more than an hour working with, and attempting to regulate and repair said burner. He advised plaintiffs that the heater, or burner, was working satisfactorily, but that he was regulating it so as to heat the water more quickly. Actually, he did not repair or adjust said burner so it would heat the water in the tank, but he negligently caused said burner to set fire to plaintiffs' house, and to burn the same and plaintiffs' garage to the ground." Then it is alleged that the fire that destroyed the house "was proximately caused by each of the following negligent acts of defendants, to-wit:...