Valentine v. Conchemco, Inc.

• Decision Date: 06 July 1979
• Citation: 588 S.W.2d 871
• Parties: Paul VALENTINE, et ux., Plaintiffs-Appellees, v. CONCHEMCO, INC., Defendant-Appellant.
• Court: Tennessee Court of Appeals

Page 871

588 S.W.2d 871

Paul VALENTINE, et ux., Plaintiffs-Appellees, v. CONCHEMCO, INC., Defendant-Appellant.

Court of Appeals of Tennessee, Eastern Section.

July 6, 1979.

Permission to Appeal Denied by Supreme Court Oct. 22, 1979.

Ben W. Hooper, II, Newport, for defendant-appellant.

William M. Leibrock, Newport, Kenneth W. Kromer, Jr., Knoxville, for plaintiffs-appellees.

OPINION

FRANKS, Judge.

This suit against the manufacturer, alleging negligence, strict liability and breach of warranty for the destruction of plaintiffs' mobile home by fire, resulted in a jury verdict of $15,000.00. Responding to a motion for new trial, the trial judge suggested a remittitur of $5,809.30, which was accepted by the plaintiff but defendant has appealed charging numerous errors.

Plaintiffs purchased the mobile home in February, 1975, and it was destroyed by fire on the night of May 20, 1975. Plaintiff, Kenneth Valentine, testified that on the night of the fire he was awakened by his wife's screams and observed a "bluish glow" on the wall separating the bedroom and bathroom; he also observed flames and smoke inside the bathroom as he exited the trailer. He disengaged the electrical power supply to the home but the fire progressed rapidly and the entire trailer was engulfed in flames and totally destroyed. Janice Valentine confirmed the existence and location of the "glow".

At the trial, plaintiffs relied on an expert witness to establish their case against the manufacturer. The witness, Hal Sanders, is an experienced fire investigator and a consulting engineer by profession. In the course of his investigation, Sanders examined the remains of the mobile home with particular emphasis on the electrical circuitry and electrical appliances which were inside the trailer at the time of fire. Additionally, he examined a new mobile home of the same make and model. The witness offered the opinion, based upon his observations, that the fire had originated in an electrical outlet located in the wall separating the bedroom and bathroom. He concluded the cause of the fire was a short circuit in the outlet caused by condensation of moisture in the electrical outlet, with the source of the moisture being the bathroom. He further stated that the use of a non-weatherproof electrical outlet in that particular location violated provisions of the National Electrical Code. ¹

Defendant's employee in charge of assuring compliance with various safety codes, testifying as an expert, was of the opinion that the outlet complied with the National Electrical Code. Defendant also offered evidence with respect to the procedures used in the course of manufacture of mobile homes to prevent the escape of moisture from the bathtub areas.

The assignments of error are:

1. The verdict of the jury is so excessive as to evidence passion, prejudice or unaccountable caprice.

2. There was no evidence to support the verdict of the jury on the issues of negligence, warranty or defect in design.

3. The Court erred in initially ruling that a defense witness had not been qualified as an expert.

4. It was error not to admit into evidence the business records of defendant relating to the standards of The National Fire Protection Association and Underwriter's Laboratories, Incorporated.

5. The Court erred in failing to charge the jury with the official standards for regulations of the National Fire Protection Association and National Electrical Code.

6. The Court erred in charging the jury on theories of negligence as there was no evidence of negligence on the part of the defendant.

7. The Court erred in charging the jury on theories of warranty as there was no evidence to support the allegation of any breach of warranty by defendant.

In support of the first enumerated assignment, defendant argues that another jury from the same panel at the same term of court had returned a large jury verdict in another mobile home fire case and, since plaintiffs only proved damages in the amount of $9,190.70, the verdict alone infers misconduct on the part of the jury.

The first argument is without merit because the record does not establish that this jury was drawn from the same panel or that any particular person served in the capacity as a juror in both cases and the assertion, if established in the record, would not Ipso facto establish a basis of prejudice.

The second argument relates to the size of the jury verdict but the record establishes that the disparity between the jury award and the actual damages was the result of confusion rather than passion or prejudice. Plaintiffs sued for $16,503.39 compensatory damages and $10,000.00 punitive damages, and proved $9,190.00 actual damages.

After the jury retired to consider its verdict, the jury foreman returned with this inquiry:

"MR. TURNER: I think you specified this and it just slipped our minds. I think you quoted a figure of $16,000 or $9,000, now we don't know which is which . . ."

Defense counsel objected to the Court's clarifying the figures for the jury on the grounds that it would amount to a comment on the evidence. The Court declined to respond to the query and shortly thereafter the jury returned with the verdict. It is apparent the jury's confusion was not alleviated by the judge's response, a response endorsed by defense counsel. No passion or caprice can be read into their mistake, which was corrected by the remittitur.

The next assignment is directed toward the evidence presented by plaintiff. It should be noted at the outset the standard for review of a jury verdict is whether there is material evidence to support the verdict. Prater v. Burns, 525 S.W.2d 846 (Tenn.App.1975). The focal point of this assignment is the testimony of plaintiffs' expert, Sanders. The defendant charges the testimony by the expert that a malfunction of the non-weatherproofed, electrical outlet was the cause of the fire was mere speculation, not amounting to material evidence, because Sanders never actually observed the allegedly defective outlet. It is undisputed that the witness in a search of the wreckage was unable to identify the specific electrical outlet for examination.

The witness examined the remains of the mobile home in May or June of 1975; he systematically examined the remains of appliances in the area of the fire, the washer, dryer, clock radio, water heater and all of the outlet receptacles except the receptacle in the wall between the bedroom and bathroom. He testified that he was unable to locate the particular outlet in the wreckage although he made a diligent search. He determined from inspection of the other outlets and appliances that none of these had been the source of the fire.

Based upon those observations and his inspection of an undamaged mobile home of like make and model, and the location and appearance of the fire as described by plaintiffs, the witness concluded that the missing outlet had caused the fire. The defendant contends that this conclusion, offered without actual inspection of the outlet, was nothing more than speculation which "borders on perjury because it is so preposterous." This bold declaration is borne out neither by the evidence in this case nor the law.

The witness testified to extensive experience in fire investigation and a knowledgeable background in electrical codes. The witness relied upon the plans and specifications for the mobile home, his inspection of an essentially identical trailer and the Code in concluding that the outlet should have either been weatherproofed or placed elsewhere. He explained his theory of causation as follows:

Q. Alright, now let's talk about the moisture in the wall or in the cavity, how is that moisture going to get in when you've got a one piece single construction or one unit, fiberglass, plastic or whatever it is, tub-shower combination, how is it going to get in there?

A. There's a seam around the top of the shower stall that has a little chrome trim, which is one location. Around the location there's a plate that fits over the valve handle for the shower, the tub and shower valves, moisture can get in there, warm moist air, we're not talking about like rain passing through, we're talking about warm moist air as it builds up in the bathroom then it passes into cooler areas and then it starts condensing out on cooler surfaces and . . .

Q. . . . (W)hat happens when you get condensation on the cooler surfaces?

A. Well, you get droplets of moisture, droplets of water where it condenses and then it will run down towards the floor, and if it condenses on wiring then it will run down the wiring.

Q. Alright, what happens if it condenses on wiring and runs down the wire to the receptacle box?

A. It would run into the receptacle box, and over the terminals and the areas in the receptacle itself. The receptacle, the hot side and the ground strap are about a thirty second of an inch apart and they're separated by just a very very close tolerance on the separation between the two, and contamination of the water and moisture can cause the electrical break-down and current leakage at this point, it carbonizes the plastic insulation, micarda, or bakelite, the material that the receptacle is made out of.

Q. And what do you mean, "carbo...