Maryville Lumber Co. v. Robinson

391 S.W.2d 624, 216 Tenn. 184, 20 McCanless 184, 1965 Tenn. LEXIS 571
CourtTennessee Supreme Court
DecidedJune 2, 1965
StatusPublished
Cited by1 cases

This text of 391 S.W.2d 624 (Maryville Lumber Co. v. Robinson) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Maryville Lumber Co. v. Robinson, 391 S.W.2d 624, 216 Tenn. 184, 20 McCanless 184, 1965 Tenn. LEXIS 571 (Tenn. 1965).

Opinion

Mr. Justice White

delivered the opinion of the Court.

Dr. Paul Robinson recovered a judgment against Mary-ville' Lumber Company in the amount of $1,958.87 in the General Sessions Court of Knox County. The defendant appealed to the Circuit Court wherein the trial judge, sitting without the intervention of a jury, found in favor of the defendant and dismissed the case.

An appeal in error was perfected to the Court of Appeals and that court reversed and entered a judgment for Dr. Robinson in the amount sued for, $1,958.87. Upon proper application we granted certiorari and the case has been argued at the bar of this Court.

The facts are that on May 5,1962, the Maryville Lumber Company was in the process of building a new dwelling' house for Robinson. On the afternoon of that date certain employees of the Petitioner, Maryville Lumber Company, were finishing the hardwood floors in the second story area of the house and were using an inflammable floor sealer. While they were so engaged a fire occurred, resulting in damage to this area of the house in the dollar amount aforesaid.

[187]*187The testimony of Dr. Robinson is of little value in determining the issues here to be decided, because he was not present at the time of the fire, but did arrive shortly thereafter. He did state, however, that said employees told him they were applying the floor sealer when the fire suddenly occurred; he had no knowledge of the cause of the fire.

Other witnesses for the respondent, Robinson, testified as to the inflammable nature of the floor sealer, that is, that any spark would ignite the sealer and the witness, Sentell, an expert, testified that persons applying the sealer should not smoke in the area of application. They should keep the floor and area of work free of rags and other material used in the application process. Proper ventilation, in his opinion, is of great importance. Sentell always used a non-sparking type of ventilation fan when applying the sealer, according to his testimony.

The petitioner’s employees, Bob Cooper and his son, Bobby Cooper, testified they were in the process of applying the floor sealer at the time of the fire. The Coopers had sanded these hardwood floors in the morning hours, and started applying the sealer at approximately two o’clock the same afternoon. Prior to commencing the application of the floor sealer, both Coopers stated they had opened all of the upstairs windows, and there was a good breeze blowing through the upstairs of the house. Further, there were no rags, trash, or refuse of any sort on the floor, nor were any other items of equipment on the floor. At the moment of the fire, they were applying the floor sealer by the use of a five inch paint brush, and the fire suddenly started at the north or street side of the room in the area of a furnace duct and traveled in a split second across and over the entire room.

[188]*188The label on the can containing the sealer read: “CAUTION INFLAMMABLE MIXTURE. DO NOT USE NEAR FIRE OR FLAME. AVOID STRIKING OR LIGHTING MATCHES. USE IN A WELL VENTILATED AREA. ’ ’ Both of the Coopers admit knowledge of the warning on the can, bnt stated that no open fires or flames were around the sealer, that no one struck a match in the area, and that the room was well ventilated at all times.

The last, and perhaps most significant, witness called was Eugene McDonald, a plumber, who was working in the basement of the house when the fire occurred. McDonald was an employee of a plumbing sub-contractor on the job, not an employee of the defendant lumber company.

McDonald testified that he was working in the basement of the house installing a cold water line. Approximately five minutes before the fire occurred, he accidentally allowed one of the water pipes to come into contact with the furnace duct work, thereby producing an electrical shock to him. Soon thereafter a plumber who was working with McDonald allowed the same water pipe to come in contact with the furnace duct. When it touched the duct, he turned it loose, dropping it, and it fell against the duct. McDonald said that at this moment he heard a hissing noise which sounded like electric current jumping from metal to metal. Immediately after this occurred, McDonald states he heard the Coopers running from the upstairs of the house shouting “Fire”.

The trial judge dismissed the action for want of actionable negligence. The Court of Appeals reversed on the grounds that the defendant was negligent in (1) failing to provide a fan or some other means of ventilation and [189]*189circulation, and (2) permitting a plumber and other workmen to be in the house at the time the sealer was being applied.

The basic question which must be decided by this Court is whether the clear preponderance of the evidence 'is against the findings and the judgment of the trial court. In so doing, we have the power and the duty to consider the entire record and determine where the preponderance of evidence lies as there has been no concurrence of finding on questions of evidence by the trial court and the Court of Appeals.

T.C.A. sec. 27-303 provides that the decision of a trial judge of a court of record, sitting without the intervention of a jury, shall be presumed to be correct upon appeal unless the preponderance of the evidence is otherwise.

"Where the trial judge and the Court of Appeals differ in their respective findings and conclusion of facts upon the oral evidence, this Court is obligated to review such evidence de novo, but with the presumption that the trial court’s decision was correct unless the evidence preponderates against it. Under such circumstances the record is then open to examination de novo in this Court. Folk v. Folk, 210 Tenn. 367, 355 S.W.2d 634, 357 S.W.2d 828 (1962); Miller v. Kendrick, 153 Tenn. 596, 285 S.W. 51 (1925); Cooley v. East & West Ins. Co., 166 Tenn. 405, 61 S.W.2d 656 (1933); Joest v. John A. Denie’s Sons Co., 174 Tenn. 410, 126 S.W.2d 312 (1939).

Further, even where the trial court and the Court of Appeals concur in their findings as to the evidence, we may review the opinion of the Court of Appeals and the record of the case to determine the validity and ac[190]*190curacy of the conclusions of law made by the Court of Appeals based upon the findings of fact. Overbey v. Poteat, 206 Tenn. 146, 332 S.W.2d 197 (1960); Insurance Co. of North America v. East Tennessee, V & G. Railroad, 97 Tenn. 326, 37 S.W. 225 (1896); Martin v. Mc-Crary, 115 Tenn. 316, 89 S.W. 324, 1 L.R.A.,N.S., 530 (1905); Moore v. Cincinnati, N. O. & T. P. Ry. Co., 148 Tenn. 561, 256 S.W. 876 (1923); King v. Buckeye Cotton Oil Co., 155 Tenn. 491, 296 S.W. 3, 53 A.L.R. 1086 (1927).

In view of these authorities we have carefully examined the record to determine (1) what acts or breaches of duty, if any, were committed by the petitioner which would render it liable to Robinson for damages; and (2) whether these acts, if any, were the proximate cause of the accident and the resulting damages.

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Bluebook (online)
391 S.W.2d 624, 216 Tenn. 184, 20 McCanless 184, 1965 Tenn. LEXIS 571, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maryville-lumber-co-v-robinson-tenn-1965.