Viking Motor Lodge, Inc. v. American Tobacco Co., 4 Div. 367

• Decision Date: 18 June 1970
• Docket Number: 4 Div. 367
• Citation: 286 Ala. 112,237 So.2d 632
• Parties: VIKING MOTOR LODGE, INC., a Corporation v. AMERICAN TOBACCO COMPANY, a Corporation and Guy Wright, Jr.
• Court: Alabama Supreme Court

Page 632

237 So.2d 632

286 Ala. 112

VIKING MOTOR LODGE, INC., a Corporation v. AMERICAN TOBACCO COMPANY, a Corporation and Guy Wright, Jr.

4 Div. 367.

Supreme Court of Alabama.

June 18, 1970.

Volz, Capouano, Wampold & Prestwood, Al James Sansone, Montgomery, for appellant.

Williamson & Taber, Greenville, for Guy Wright, Jr.

Oliver Brantley, Troy, for American Tobacco Co., a corp.

HARWOOD, Justice.

The complaint below contained four counts. Counts I, III and IV allege that the defendants negligently ignited a fire upon the property of the plaintiff's i.e the Viking Motor Lodge, and as a proximate result of said negligence, the plaintiff suffered damages in the amount of $41,909.65. Count II avers that the defendant Guy Wright, an agent, servant, or employee of the defendant American Tobacco Company, while acting in the line and scope of his employment, negligently ignited the fire, etc.

At the conclusion of the evidence, the court below gave the general affirmative charge in favor of the defendants. The jury returned a verdict consonant with such instructions, and a judgment was entered in favor of the defendants pursuant to such verdict. Hence this appeal.

Guy Wright was employed by the American Tobacco Company as a cigarette salesman. His territory composed a number of counties, including Pike County.

On 16 March 1966, he registered at the Viking Motor Lodge in Troy. After pursuing his business that day he returned to his room in the motel. He completed some paper work relative to his activities, and then he and a salesman for another company drove in separate automobiles to a restaurant for dinner. Wright testified he may have had a beer during dinner. After finishing their meal, Wright and his companion went to a cocktail lounge in Troy where they remained seated and talked for some time. Wright testified he consumed two or three beers during this time, but felt no effect from them. Wright returned to his motel room between 11:30 P.M., and midnight, and went to bed.

Wright testified he smoked about two and a half packages of cigarettes a day and that he probably smoked a cigarette during the time he was preparing for bed which took some 20 to 30 minutes. There was several ash trays around the room. He did not smoke in bed.

About 2:30 A.M., Wright awakened to find about everything in his room on fire except the bed in which he was sleeping. The fire in general was in the area of the room away from the bed. He managed to get his pants on and ran out of the room. Finding a fire extinguisher outside he attempted to use it, but without effect. He then knocked on nearby doors to awaken the occupants, and ran to the office. The night clerk called the fire department.

James T. Massey, Chief of the Troy Fire Department, arrived at the motel shortly after the call to the fire department. The room occupied by Wright was then totally on fire. The next morning as soon as the scene had cooled enough he made an investigation in an effort to determine the cause or origin of the fire. The room and its contents had burned to ashes and he was unable to determine the cause of the fire.

The plaintiff introduced evidence showing that the motel was heated, and cooled, by a water percolating system. A fan in each room, electrically operated circulated the hot or cold air by blowing over a coil in the apparatus.

Mr. Charles McMillan, operator and real owner of Viking Motor Lodge, testified that he arrived at the motel about 5:00 A.M. This was some two hours after the discovery of the fire and the destruction thereby of the room occupied by Wright. At the time of his arrival McMillan observed the lights on in other rooms in the wing of the motel wherein the burned room was located. It was Mr. McMillan's testimony that all of the electrical systems in that wing were on the same circuit. It was Mr. McMillan's view that the fire was caused by a cigarette setting Wright's bed on fire. However, cross examination revealed that Mr. McMillan arrived at this conclusion by eliminating in his own mind any other causal agent. It is significant that Wright suffered no burns from the fire though he wore no night clothes in bed.

Young Flowers, Jr., an electrician of considerable experience testified for the plaintiff.

Mr. Flowers did the electrical work when the motel was repaired after the fire. When he first saw the burned room it had been cleaned up, and only charred studs remained. That part of the electrical system which had not been burned, that is, in the remaining unburned portion of the motel wing, appeared to be properly wired, and he found nothing to indicate the fire had been caused by a faulty electrical system.

In Mr. Flowers' opinion each unit in the wing wherein the burned room was located was on a separate circuit. In this aspect Mr. Flowers' testimony differs from that of Mr. McMillan.

A sub-feed was in the attic, and the insulation had been melted off the conductors inside the circuit and had burned the wiring as well as the surrounding lumber. Two fuses in the sub-feed had been blown, and this would indicate a short circuit.

Mr. Flowers further testified that an overload in a system can be caused by a short circuit resulting from mashing an exposed cord, as by placing a chair leg or bed leg on it. He also testified that it is possible for an electric motor to burn without blowing a fuse or tripping a circuit breaker. The 'burning' of the fuses in the sub-feed would have been caused by the fire itself.

In brief counsel for appellant assert:

'At the trial of the case, the...