Scarbrough v. City of Lewisburg

• Decision Date: 29 June 1973
• Citation: 504 S.W.2d 377
• Parties: Mrs. Maggie SCARBROUGH, Plaintiff-Appellant, v. The CITY OF LEWISBURG and the Lewisburg Gas Board, Defendant-Appellee.
• Court: Tennessee Court of Appeals

Page 377

504 S.W.2d 377

Mrs. Maggie SCARBROUGH, Plaintiff-Appellant, v. The CITY OF LEWISBURG and the Lewisburg Gas Board, Defendant-Appellee.

Court of Appeals of Tennessee, Middle Section.

June 29, 1973.

Certiorari Denied by Supreme Court Feb. 4, 1974.

Robin Courtney, Courtney, Trost, Leech & Hardin, Columbia, for plaintiff-appellant.

Walter W. Bussart, Lewisburg, for defendant-appellee.

TODD, Judge.

OPINION

The plaintiff, Mrs. Maggie Scarbrough, has appealed from a jury verdict and judgment dismissing her suit against the defendants, The City of Lewisburg and the Lewisburg Gas Board, for personal injuries and damage to real and personal property suffered in an explosion and fire at her residence on November 20, 1970.

This suit was filed on June 30, 1971, hence Tennessee Rules of Civil Procedure, effective January 1, 1971, are applicable.

The first assignment of error is as follows:

I.

'The Court erred in failing to require the Defendants to answer properly the Plaintiff's Request for Admissions submitted to the Defendants pursuant to Rule 36 of the Tennessee Rules of Civil Procedure and the Defendants failed to comply with said Rule by refusing to admit certain factual matters raised by the Request.'

On April 26, 1972, plaintiff mailed to defense counsel, and on April 28, 1972, plaintiff filed the following 'Request for Admissions.'

'Pursuant to Rule 36 of the Tennessee Rules of Civil Procedure, the Plaintiff does hereby request from the Defendant the admission of the following relevant matters of fact:

1. That the explosion which occurred on November 20, 1970 at the residence of the Plaintiff located on 301 North Woods Avenue, Lewisburg, Tennessee, resulted from the ignition of natural gas vapors.

2. That the fire which followed the explosion at said residence resulted from the ignition for natural gas vapors.

3. That these natural gas vapors resulted from natural gas which escaped from the gas main owned and maintained by the Defendant, Lewisburg Gas Company, which was located under the pavement of North Woods Avenue in front of the home of the Plaintiff.

4. That the gas which escapted from the main resulted from a break in the main, which was broken completely into two segments.

5. The gas escaped from this break in the main, underground, and followed utility lines likewise located underground into the basement of the residence of the Plaintiff located at 301 North Woods Avenue where they accumulated, and ascended into the first floor of the Plaintiff's residence and mixed with air until they reached flammable proportions.

6. That the Defendant Gas Company has no record of making routine inspections or examinations of this gas main located in the street along North Woods Avenue since its installation in 19_ _.'

Defendants' response to said request, filed on May 25, 1972, was as follows:

'1. Defendant admits that the explosion occurred on November 20, 1970 at the residence of the plaintiff located on 301 North Woods Avenue in Lewisburg, Tennessee. Defendant denies that the explosion resulted from the ignition of natural gas vapors.

2. Defendant denies statements 2, 3, 4, 5, and 6 of plaintiff's requests except defendant admits there was a break in the main on Woods Avenue after the accident.'

Subsequently, on June 1, 1972, defendants filed the following supplemental response.

'1. Defendant cannot admit that the explosion and fire was caused by gas which escaped from its main in front of plaintiff's residence and travelled underground into her house and ignited, because it does not know whether these matters are true or false. Defendant avers that the burden of proof is on the plaintiff to establish these facts by preponderance of the evidence and that the fire and explosion could have been caused by a number of sources. That the source of the gas could have been from a number of sources also, and that evidence will be introduced which shows that it did not come from a broken main.

'2. Defendant further does not admit the above mentioned matters because said admission is improper in accordance with Rules of Civil Procedure 3601 in that it invades the province of the jury as to the ultimate facts in the case.

'Defendant, through his attorney of record, Walter Bussart, does hereby make oath that the foregoing statements are true to the best of his knowledge, information, belief, and judgment.'

Plaintiff relies upon the fact that defendant's first response, supra, was unsworn and the second was sworn to by counsel.

Rule 36.01, Rules of Civil Procedure, provides (in part):

'Rule 36. Admission of Facts and of Genuineness of Documents

36.01 . . ..

Each of the matters of which an admission is requested shall be deemed admitted unless, within a period designated in the request, not less than fifteen days after service thereof or within such shorter or longer times as the court may allow on motion and notice, the party to whom the request is directed serves upon the party requesting the admission either (a) a sworn statement denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully admit or deny those matters or (b) written objections on the ground that some or all of the requested admissions are privileged or irrelevant or that the request is otherwise improper in whole or in part, together with a notice of hearing the objections at the earliest practicable time. If written objections to a part of the request are made, the remainder of the request shall be answered within the period designated in the request. A denial shal fairly meet the substance of the requested admission, and when good faith requires that a party deny only a part of a qualification of a matter of which an admission is requested, he shall specify so much of it as is true and deny only the remainder.'

Plaintiff's request for admissions contained no stated period for response to avoid the 'deemed admitted' provision of the rule. Without such groundwork, plaintiff can hardly claim any benefit from delay in response. Furthermore, no effort was made to obtain a favorable ruling as a result of delay or failure to swear to the initial response.

The second response, quoted supra, was sworn to by counsel for the defendants. Ordinarily, the verification of such a response should be by the party himself (if an individual) or, in case of a firm or corporation, by the officer, agent or employee having most comprehensive knowledge of the facts. Again, no complaint was made in the Trial Court as to verification by counsel, therefore complaint cannot be made for the first time on appeal.

Plaintiff next complains that defendants failed to make a full disclosure of facts or reasons why facts could not be admitted. Again, no complaint was made to the Trial Court before trial; and further, the second response of defendants, in the main, appears to be as full and candid as the nature of the case permitted.

Specifically, plaintiff complains of the failure of defendants to admit request No. 4, supra. In paragraph 2 of their first response, sponse, supra, defendants admitted a break in their gas main After the explosion. Defendants had no information that the main was broken Before the explosion, because it was not unearthed and examined until after the explosion. Furthermore, admission No. 4 is inextricably bound to admissions Nos. 1 and 2 which state that the explosion and fire were the result of gas which leaked from defendant's main. This is denied by defendant. The words 'the gas which escaped from the main' in admission No. 4 refer unquestionably to the gas which caused the fire and explosion (admissions Nos. 1 and 2). Therefore, defendants could not concede admission No. 4 without admitting that their gas main broke Before the explosion And that gas from that break caused the explosion and fire.

Even though circumstantial evidence may strongly indicate the truth of a proposed fact, there is no duty on the part of a party to admit the truth of such fact, especially where such party relies upon other circumstances to disprove the proposed fact. The theory of defendants was that the explosion and fire resulted from a leakage of gas inside plaintiff's house for which defendants would not be liable. Meter readings showing an unusual volume of gas use for the period were relied upon as a circumstance to support this theory.

Plaintiff next complains that defendants failed to concede proposed admission No. 6 to the effect that defendants had no record of certain inspections. The proposed admission is somewhat imperfect by the use of the indefinite date, 19_ _. Also, there is no record that plaintiffs challenged the failure to respond in any proper manner. Rule 36.01, supra, provides that upon failure to respond within a designated time, the matters 'shall be deemed admitted.' If, therefore, defendant failed to respond properly to any request for admission within a designated time, the remedy of plaintiff would have been a specially requested instruction to the jury to consider that the subject matter of the request 'shall be deemed admitted.' There is no record that such steps were taken to capitalize upon the failure of defendant to respond. In the absence of such steps to preserve her rights, plaintiff is not entitled to reversal on this ground.

Plaintiff's first assignment of error is respectfully overruled.

By her second assignment of error, plaintiff complains of the refusal of the Trial Judge to charge at her request the following:

'I charge you, members of the Jury, that under a doctrine known as res ipsa loquitur, that if you find an explosion has been proved by the Plaintiff and that the origin of the explosion has been established as gas escaping from a gas main under the defendant's exclusive control, the burden of proof then shifts to the defendant to show that it was free of negligence. If you find that the defendant has failed to prove by a preponderance...