Patton v. Dail, 458

• Citation: 114 S.E.2d 87,252 N.C. 425
• Decision Date: 27 April 1960
• Docket Number: No. 458,458
• Court: North Carolina Supreme Court
• Parties: A. F. PATTON and Vann Doris Patton v. Henry DAIL.

Page 87

114 S.E.2d 87

252 N.C. 425

A. F. PATTON and Vann Doris Patton v. Henry DAIL.

No. 458

Supreme Court of North Carolina.

April 27, 1960

Simms & Simms and Smith, Leach, anderson & Dorsett, Raleigh, for plaintiffs, appellants.

Teague, Johnson & Patterson, Raleigh, for defendant, appellee.

PARKER, Justice.

A. F. Patton is an electrical contractor. On 20 December 1958 he and his wife were the owners of a four and one-half room house with bathroom, located about five miles from the city of Raleigh, which they rented. Plaintiffs lived in the city. About 8:15 a. m. o'clock on this day defendant, who is a plumber, by contract with A. F. Patton met him at this house and replaced a spigot in the kitchen. After defendant left, A. F. Patton turned on the water and discovered a leak under the house. A. F. Patton went under the house to find the leak, and found a bursted joint in the pipe under the bathroom. The bathroom was about 14 to 16 inches above the ground. The house had no basement. He turned the water off, and disconnected the electric hot water heater. He returned to the city about 9:15 a. m. o'clock and instructed defendant to go back and repair the leak.

About 10:00 a. m. o'clock on this day Bennett Rowland, who had rented this house from plaintiffs, began moving his furniture in. He finished moving about 2:30 p. m. o'clock, locked up the house, and left, because he had no oil to heat it, and would not have any until two days later. Before leaving he went into all the rooms to see if there was any evidence of fire or smoke, and found none. He heard of the fire the next day. Some of his furniture was burnt up, other parts of it were damaged by fire and smoke.

Between 4:30 and 5:30 p. m. o'clock defendant telephoned plaintiffs' daughter, Harriet Patton, and asked for her father. When she said he was out, defendant said he had completed the work at the house, but had not turned on the water.

About 6:00 or 6:30 p. m o'clock on this day Emmett Bagwell and his wife driving to Raleigh were travelling along the road, which is approximately 50 yards from this house. He drove into some smoke, looked toward the house, and saw it was on fire underneath. He backed up, and went to Lewis Wilkins' to call the Garner Fire Department. He returned to the house. He testified on cross-examination: 'When I got there it was fire underneath and burnt through the floor. The first thing I seen when I walked in there was fire underneath the house. I didn't see no hole in the floor. The fire burnt through the floor. I saw that hole, saw it when I first got there. I saw it from underneath the house.'

Lewis Wilkins went to the house. He testified on direct examination: 'The first flame I saw was under the house. It was burning both the timber under the house and also a little dry grass was burning. Yes I stayed there after that. We was trying to put water on it at that time and while we was trying to put water on it, the flames seemed to have broken loose inside the house then. ' On cross-examination he said: 'I saw some burning timber under the house; that was directly under the bathroom. No other burning except under that area of the house, that's right. * * * I said it was approximately 6:30 when Mr. Bagwell stopped by my house. * * * I lived about 150 yards from the house.'

W. R. (Jack) Johnson is chief of the Garner Fire Department. He and twelve firemen and fire fighting equipment went to this burning house. When he arrived, fire was coming out of the front gable and two windows on the Raleigh side of the house. A bedroom and the bathroom were on the Raleigh side of the house. The fire was concentrated in the area of the bedroom and bathroom, the worst damage was done in that area. He looked under the house. 'The wood underneath the bathroom area of the house, the underpinning around the hole was charred somewhat. ' He had to put some fire out up under the house.

A. F. Patton heard of the fire, and arrived at the house about 7:00 or 7:15 p. m. o'clock. The Garner Fire Department was there fighting the fire. He went in the house. The whole front of the ceiling was burnt, and the firemen had knocked holes in the kitchen wall. One bedroom was badly burned, and another destroyed. There was evidence of fire in the attic all over the house. The bathroom was burned up, and there was a big hole, about 3 1/2 feet in diameter, through the bathroom floor. 'There were no other holes burnt through the floor anywhere in the house. ' He could see beneath the hole in the bathroom floor the piece of copper pipe defendant had replaced.

About 9:00 or 9:30 p. m. o'clock that night defendant told him 'he had replaced a piece of copper pipe under the bathroom. * * * Mr. Dail did not say anything in his conversation with me with respect to how he formed that pipe. He just told me that he had sweated pipe at one end at the truck before he went under the house and made the last connection under the house. He told me he had replaced the bursted fitting with a piece of copper pipe. I know what is meant by saying that he sweated one end at the truck. It means sweating one end of the pipe into the adapter so when he went under the house he screwed it in the pipe because you cannot sweat and screw in after it is sweated. There were not more than two joints to this pipe. There is an electrical device that can be used to sweat a connection and make the solder joint. I don't think Mr. Dail said anything to me about what device he used.'

A. F. Patton returned to this burned house during daylight, and examined the copper pipe defendant had replaced. He testified: 'It had been connected up by the use of two copper adapters, copper to iron pipe adapters, sweat joint. The adapter is used to screw into a fitting of iron pipe. It is a galvanized pipe and to the end you slip the copper into it and sweat that joint. Sweat that joint means, that is used by a flamce torch that you heat this pipe and adapter to a temperature and place your solder on it and it runs in and runs around the joint. Both ends of this pipe were attached that way. * * * I have been in the electrical business since about 1932 or 1933. In that connection I have been connected with the construction trade and have had occasion to observe plumbing work being done. I am familiar with...