Tennessee Liquefied Gas Corp. v. Ross

• Decision Date: 12 September 1968
• Citation: 41 A.L.R.3d 769,60 Tenn.App. 648,450 S.W.2d 587
• Parties: , 41 A.L.R.3d 769 TENNESSEE LIQUEFIED GAS CORPORATION, Plaintiff-In-Error, v. Robert H. ROSS, Defendant-In-Error.
• Court: Tennessee Court of Appeals

Page 587

450 S.W.2d 587

60 Tenn.App. 648, 41 A.L.R.3d 769

TENNESSEE LIQUEFIED GAS CORPORATION, Plaintiff-In-Error, v. Robert H. ROSS, Defendant-In-Error.

Court of Appeals of Tennessee, Western Section.

Sept. 12, 1968 Certiorari Denied by Supreme Court March 3, 1969.

Lloyd Tatum, Henderson, for plaintiff in error.

Walter C. Drake, Edward C. Duke, Jackson, for defendant in error.

CARNEY, Judge.

Upon the trial below the jury awarded the plaintiff, Robert H. Ross, $2,500.00 as damages for the loss of his house trailer and contents by explosion and fire on February 11, 1966. The defendant, Tennessee Liquefied Gas Corporation, has appealed in error.

Assignments of error I, II, III, V, VI, VII, VIII, and IX raise the broad question of whether there was material evidence to support the verdict of the jury and whether the Trial Judge should have directed a verdict for defendant.

Where there has been a verdict for the plaintiff approved by the Trial Judge, in considering a defendant's motion for a directed verdict the Court of Appeals must look at all the evidence, construe it most favorably to the plaintiff, take the plaintiff's evidence which supports his theory as true, discard all countervailing evidence and indulge all reasonable inferences to uphold the verdict. Spivey v. St. Thomas Hospital, 31 Tenn.App. 12, 211 S.W.2d 450; Rose & Co. v. Snyder, 185 Tenn. 499, 206 S.W.2d 897; Dunn v. Ralston Purina Co., 38 Tenn.App. 229, 272 S.W.2d 479.

Plaintiff's declaration was in one count and the allegations of negligence are as follows:

'That on or about November 26, 1965, the plaintiff herein hired the defendant corporation, through its servants at Jackson, Tennessee, to install bottled gas to a house trailer owned by the plaintiff and situated on Highway number U.S. 45, north of Henderson in Chester County, Tennessee. That servants of the defendant proceeded to install the necessary connections to the plaintiff's house trailer and in doing so they did not properly install the necessary or proper regulatory devices to control the gas. That one of the defendant's servants informed the plaintiff through his wife and other members of his household of this fact and stated that they would return and install the proper equipment at a later date. That the defendant, Tennessee Liquefied Gas Corporation, had a duty to properly install the necessary and needed regulatory devices to make the plaintiff's trailer home safe for the use of the gas product furnished by the defendant. That the defendant's servants failed to so adjust or install the proper equipment and that as a direct and proximate result of this failure the said house trailer of the plaintiff's was completely destroyed by an explosion and ensuing fire that occurred on or about February 11, 1966. * * *'

The defendant entered a plea of not guilty.

Plaintiff Robert Ross was employed at Brown Shoe Company in Selmer, Tennessee. Sometime prior to Thanksgiving, 1965, he purchased a new house trailer for his home. The trailer was equipped with a gas furnace and gas cook stove. Either natural gas or propane gas could be used in the furnace and stove. Plaintiff contracted with the defendant, Tennessee Liquefied Gas Corporation, to furnish him propane gas. The plaintiff entered into a written contract with the defendant the pertinent portions of which we copy as follows:

'DEALER-CONSUMER CONTRACT

No. 188

Date 11--23--65

The undersigned subscribed requests that TENNESSEE LIQUEFIED GAS CORP. OF _ _, or its authorized agents (herein called Dealer) lease and install equipment for bottled-tank gas service to his (or her) appliances.

Robert (First Name)

H. (Initial)

Ross (Last Name)

R #1 Henderson

Complete Address

_ _

Location of Property Where Equipment is to Be Used

2 100 lbs. Cyl--Blocks & Reg

Description of Leased Equipment

INSTALLATION CHARGE ..... $10.00

REFUNDABLE DEPOSIT .....$10.00

SUBJECT TO TERMS AND CONDITIONS OF FOLLOWING AGREEMENT:

1. Title to the cylinders, tanks, regulating equipment and cabinet described above shall remain in the Dealer's name. The user agrees to return this equipment in good condition should he discontinue the purchase of gas from Tennessee Liquefied Gas Corp. or its authorized agents. The User further agrees that the service lines, pipes and appliances into which bottled gas is to be delivered from the regulator will be his property and shall be maintained by him.

2. Any necessary service on the equipment owned by Dealer shall be taken care of by the Dealer free of charge, unless upon inspection it is found to be the case that someone has tampered with this equipment, and in that case the customer shall pay reasonable charge for such service.

4. The Dealer or Tennessee Liquefied Gas Corp. shall not be liable for any damages or injuries resulting from the use of bottled gas, regulating equipment, valves, appliances, or containers, for failure to perform any obligations hereunder and especially when such failure is due to any cause beyond its control. The user agrees not to permit the refilling of any tank or container by anyone other than an authorized dealer of Tennessee Liquefied Gas Corp.

5. It is expressly agreed between the parties that all the dealer's equipment is now and shall remain personal property, even though it may be fastened to, or attached to the real estate. This agreement is a material part of the whole agreement and without which section the Dealer would not have entered into any part of the agreement.

9. It is further agreed that the entire agreement is contained in this contract and that no other agreement, oral or written, shall alter, change or qualify the terms hereof.

_ _

COMMENTS:

/s/ Robert H. Ross

Signature of Customer

/s/ Gibson Kendall

Signature of Agent of Tennessee

Liquefied Gas Corp.'

On or about November 26, 1965, employees of the defendant carried the two cylinders or 'bottles' of gas, two concrete blocks, and regulator to the house trailer of the plaintiff located in Chester County on Highway 45. This equipment was installed outside the trailer near the front.

The propane gas was connected from a cylinder through the regulator to the piping of the trailer. The cook stove was made ready to use on the first trip. The furnace was not put in operation until a day or two later when the defendant's agents returned and made some adjustments to the furnace before putting it into operation. The evidence is in conflict as to just what adjustments were made by defendant's agents to the furnace.

Defendant's employee Hall testified that the reason the furnace was not put in operation on the first trip was that he did not have the proper wrench to install a propane gas orifice in the burner on the furnace; that ordinarily two separate orifices are furnished by the manufacturer of the furnace. One orifice is for the use of natural gas and the other orifice is for use of propane gas; that the employee Hall along with employee Denton returned a day later and installed a propane gas orifice in the furnace and made sure that the furnace was operating properly when they left.

The orifice used in the furnace in the trailer was a brass cap or screw with a very small hole in the center. The hole was about the size of a pinpoint. Its purpose was to restrict the amount of propane gas which flowed into the burner of the furnace. The only difference between a propane gas orifice and a natural gas orifice is the size of the hole which permits the gas to pass through. Propane gas is heavier than natural gas and the orifice for natural gas has a bigger hole than one with propane gas. Usually the holes were drilled into the orifice by defendant's employees in accordance with specifications furnished by the manufacturer of the furnace.

The plaintiff admitted that the furnace was not hooked up on the first trip but stated that he did not know why. He contended that when the employees came the second time and hooked up the furnace so as to give plaintiff's family heat in the trailer, that they did not have a propane gas orifice with them but they stated to members of plaintiff's family that they were installing a natural gas orifice and would return and install the 'right' orifice when they obtained one. Plaintiff testified that he requested the defendant's officials on more than one occasion to furnish the proper propane gas orifice but they never did so.

Plaintiff's father and 11-year-old son testified that the defendant's employees said in their presence that they would come back and put in the right orifice at a later date and that the one they were installing would give them some heat until they could get the right one. The burner from the furnace in the plaintiff's house trailer removed after the fire was introduced in evidence but it was damaged so badly that it was impossible to tell whether the orifice installed in the burner was a natural gas orifice or a propane gas orifice.

Plaintiff testified that from time to time when he went into the office of defendant to order replacement of the bottles of gas he made request of the defendant to procure and install the 'right size' orifice or part in the heater and that defendant's agents kept promising to do so but never did make such installation. Defendant's manager, Mr. Long, denied that plaintiff ever asked him about a propane gas orifice. Since the jury found in favor of the plaintiff we must accept plaintiff's evidence as true and hold that there was material evidence to support the finding of the jury that the defendant was guilty of negligence in failing to install a propane gas orifice in the heater.

Therefore, the next question we consider is whether there is material evidence to support the finding of the jury that such negligence on the part of the defendant constituted a proximate cause of plaintiff's damages, namely the explosion and burning of the trailer. The plaintiff heated his trailer with the furnace from about November 26, 1965, to the date of...