Southern Gas Corp. v. Brooks

• Decision Date: 28 April 1961
• Court: Tennessee Court of Appeals
• Parties: SOUTHERN GAS CORPORATION of Tennessee, Plaintiff-in-Error, v. L. T. BROOKS et al., Trustees of Mt. Pleasant C. M. E. Church, Defendants-in-Error.

Page 570

359 S.W.2d 570

50 Tenn.App. 1

SOUTHERN GAS CORPORATION of Tennessee, Plaintiff-in-Error, v. L. T. BROOKS et al., Trustees of Mt. Pleasant C. M. E.

Church, Defendants-in-Error.

Court of Appeals of Tennessee, Western Section.

April 28, 1961.

Certiorari Denied by Supreme Court Sept. 6, 1961.

Waldrop & Hall, Hewitt P. Tomlin, Jr., Jackson, for plaintiff-in-error.

Schneider, Schneider & Harris, Jackson, for defendants-in-error.

CARNEY, Judge.

The plaintiffs below, L. T. Brooks, Hamp Brooks, George Brooks, Willie Meachem, Albert Davis, Booker T. Hunt and Guy Brooks, as trustees of the Mt. Pleasant Colered Methodist Episcopal Church recovered a judgment of $9,000 against the defendant, Southern Gas Corporation, for the destruction by fire of the church building and contents. $7,500 represented the value of the building and $1,500 the value of the contents destroyed by the fire.

From this judgment Southern Gas Corporation has appealed in error and filed six assignments of error all of which raise the one question whether the Trial Judge erred in failing to grant defendant's motion for a directed verdict, both at the conclusion of the plaintiffs' proof and at the conclusion of all of the evidence in the case.

The Southern Gas Corporation, a corporation with its principal place of business at Jackson, Madison County, Tennessee, is engaged in the business of supplying and selling propane gas to approximately 1400 customers within a radius of 35 miles of Jackson, Tennessee. The Mt. Pleasant C. N. E. Church was located about five miles north of Jackson, Tennessee, on a rural road. The church had been heated prior to November 6, 1958, with coal.

In October, 1958, the plaintiff trustees contracted with the defendant for the purchase and installation of two thermostatically controlled 70,000 BTU gas floor furnaces and for the lease from the defendant of a 250-gallon tank for the storage of propane gas. The defendant agreed to make all necessary connections and installations of the equipment.

Mr. Hamilton, principal owner of the defendant corporation, testified that in 95% of the cases his company furnished the entire installation of the equipment necessary to the use of propane gas and, to use his words, '* * * we make a contract, go out, our men, we usually lease it out, the salesman or myself and I act as salesman in many cases, and we lease out the system and we guarantee it and agree to service it free of charge as long as they have it and we complete the job from the very beginning to the very end.' (Tr. p. 225)

The contract price for the installation of the two floor furnaces was $430.00. On November 3, 1958, plaintiffs made a down payment of $120.00 to the defendant corporation. On the morning of November 6, 1958, Mose Robinson, janitor of the church, unlocked the church building at about 7:00 A.M. for the employees of the defendant to enter and install the floor furnaces. Shortly thereafter Mr. L. P. Deaton, foreman for the defendant corporation along with five employees arrived and began installing the floor furnaces, the storage tank and the other necessary pipes, fittings, valves, etc.

After the furnaces were installed and the storage tank filled with propane gas, the furnaces were lighted and burned for about fifteen minutes during which time Mr. Deaton and/or the other employees made checks of the valves, thermostats and connections. The furnaces seemed to be working properly. The employees found no leaks of gas in the connections and all the equipment appeared to be in good working order and properly installed. Mr. Deaton and the employees shut but did not lock the doors of the church and they left the premises about 12:00 noon.

Sometime shortly after 1:30 P.M. a neighbor, one Leo Bills, who is not a member of the church, was returning to his farm home from Jackson, Tennessee, and he saw dense smoke coming from the direction of the church when he was about one-half mile away. His first thought was that the smoke might be coming from his home but as he got nearer he realized that the smoke was coming from the church building.

When he got to the church there was no one around and the doors and windows appeared to be fastened. He summoned another neighbor, one Pearl Ardis, a member of the church. Pearl Ardis then called by telephone the witness, Mr. William Johnston, who was farming in the vicinity and asked him to bring his employee, Clyde Pearson, the Superintendent of the Sunday School, who was picking cotton for Mr. Johnston, over to the church.

Mr. Johnston came immediately with his employee, Clyde Pearson. We quote from his testimony as follows:

'Q Are you familiar with the location of the Mt. Pleasant CME Church?

A I am.

'Q And approximately how long have you lived out in that vicinity, Mr. Johnston?

A Some eight years.

'Q And I would now, sir, direct your attention to the day of November the 6th, 1958, it was on Thursday, and ask you whether or not anything unusual happened sometime in the afternoon of that day?

A Well, that's the day the church over there burned.

'Q And what was it--Did you have any knowledge or did you learn that the fire--that the church was on fire?

A I did.

'Q And what did you do then, sir, when you learned that it was on fire?

A. Pearl Ardis called me and asked me if Clyde Pearson was picking cotton for me and I told her that he was and she said, 'the church is on fire over there and will you get him and bring him over here', and that's what I did.

'Q And will you state to the gentlemen of the jury what transpired or what you saw when you got there?

A Yes, sir, I will try to. When we got over there, wasn't anyone there; went up to the door to open the door of the church; there was so much pressure against it that we couldn't open it; whether it was locked or not, I don't know. I told Clyde, let's take a two by six, there was a two by six laying there and I told him let's pry that door open and see if we can put it out, so I took it and slammed it against the door and slammed it open, and when we did, I suppose smoke bulged out of it half as far as from here to that wall back yonder, if not further.

'Q The smoke just came right out?

A That's right, you couldn't see anything whatsoever then at all.

'Q And what, if anything, did you do then, sir?

A We went over to Pearl Ardis' house--that was the closest one that had a telephone, and called--telephoned the fire department and asked them if they would come out there. They said that they would, provided we put up a $100.00 and I turned to Clyde and asked him if he wanted to put up the $100.00 and he said, well, that might just be throwing it away because it looks like by the time they get here--the thing was well on the way anyhow--it wouldn't be saving very much and just tell them not to come and so that is what happened. We turned and called the gas company then about turning it off, about turning that tank off to keep it from exploding

'Q Do you know which gas company that was?

A Southern Gas.

'Q And did you talk to them?

'A I talked to someone in the office. I don't know who or whatnot.

'Q What did they state to you?

A They said they would send someone out there, which they did.

'Q And what was the state of the fire when that someone arrived?

A It was so far along that he just drove by and looked and never got out of the truck, if I can remember right.

'Q And, Mr. Johnston, when you did throw open the doors there or knock open the door, what--you stated that smoke came out--could you determine any location or could you see anything at all?

A It was just bulging up, looked like from the floor. Clyde wanted to go in there and get out some chairs and things and I told him there wasn't any need to go in there because you couldn't see, and at that time he was the only one up there.

'Q And in your best estimate now, Mr. Johnston, approximately what time did you arrive at the scene of the church with Clyde?

A With Clyde?

'Q Yes, sir.

A Somewhere around 2:00 o'clock. I don't know, it could have been a few minutes before or a few minutes after, I don't know.

'Q But somewhere in the vicinity of 2:00 o'clock?

A That's right.

The building burned for about two hours and was entirely consumed by the fire.

The church was a one-story building about 32 by 60 feet sitting on a concrete block and brick foundation. There was a wooden floor and wooden sub-floor. The interior walls were covered with a pine wainscoting up to a rail above which the interior walls were covered with sheetrock. The interior ceiling was a fiber board generally referred to as Celotex. The outside wall consisted of fire resistant white asbestos shingles nailed over storm sheeting which covered the studs.

Each floor furnace was a separate heating unit and they were installed just as they came from the manufacturer. The burner and pilot light where enclosed in a steel box near the bottom of the heating unit. Each unit swung down through the floor suspended by a metal flange that hung on the floor in which the units were installed. Rectangular holes approximately 30 by 36 inches were cut in the floor for the installation of each of these floor furnaces. A vent ran from each furnace under the floor to the outside of the building through the concrete block foundation.

The 250-gallon storage tank was set up some 20 to 30 feet outside the church building. A black metal pipe supply line approximately 3/4 inch in diameter was run from the storage tank underground to the foundation and thence along under the floor joists of the building to supply fuel to the two floor furnaces. Copper tubes carried the fuel from the main supply line to each floor furnace.

Each floor furnace had a separate thermostat which was installed on an interior wall of the building. These thermostats are described as self-energizing. They required no separate electrical circuit but operated on a very low voltage, which voltage was produced by heat generated by the pilot...