Brown v. Marshall Ice Electric Company , 209 Ark. 925 ( 1946 )

W. E. Brown was awakened about two o'clock the morning of March 15, 1945. His explanation of the cause was: "I heard something that sounded like the Frigidaire running in the room where I was sleeping. . . . The light [fixture] in that room had a three-way connection, [with] the globe in the bottom, and it was cut off by the door in that switch; and I raised out [of bed] and couldn't tell whether it was in that; and fire was shooting out of those holes. I also heard this noise in the radio, and went outside and pulled the [main] switch, like I always did — and [as the folks do, too, when we have trouble] like an electrical storm."

The switch was left "off" during the remainder of the night; but the next morning at 9 o'clock Brown went to Marshall Ice Electric Company's office and talked with Herbert Wright, a repair man, asking that the trouble be adjusted. About five hours later Wright went to Brown's home, worked on the so-called "three-way" drop and remarked, "I think that is your trouble." The Brown family went to a neighbor's home after a lapse of twenty or thirty minutes following Wright's leave-taking, and soon observed smoke or fire coming from the roof or "upper part" of the house.

Brown's testimony is that he heard a "hissing" or "crackling" noise in the attic. While the switch was in position to disengage the flow of current, Mrs. Thelma Cypert (Brown's daughter) climbed into the attic. She testified her father turned the switch on and "I heard the wire over the front room `crackle' and `fry'."

Brown says he told Wright about the "hissing" sound in the attic and asked him (Wright) if he didn't intend to go up there, but was assured the trouble was with the socket or its connections in the room where Brown saw the fire.

It was shown that although Wright was regularly employed by Marshall Ice Electric Company as "trouble shooter," he was permitted to do repair work on his own account and was allowed to retain charges for such. There is an absence of substantial testimony showing that Wright, in working for Brown or for anyone in similar circumstances, was accountable to the Electric Company. On the contrary, there is proof of non-participation. The jury was instructed to return a verdict for the Company, but it was permitted to determine whether the fire was occasioned because wiring or fixtures became unreliable, and whether Wright was guilty of negligence in failing to inspect the attic wiring. By its verdict the jury found in effect that the fire was caused from a short circuit, and that Wright was negligent.

It is not necessary to pass upon sufficiency of the evidence tending to show employer and employee relationship between the Company and Wright. When we decide, as we do, that the verdict against Wright for $900 was based upon speculation, other matters become unimportant.

Wright concedes that Brown mentioned to him what was thought to be a "crackling" sound in the attic; but the fact remains that the "drop" to which the three-way light socket was connected came through the ceiling, and Brown's definite testimony is that when he awoke during the electric storm fire was coming from the three apertures, indicating that each was faulty, or that the "drop" connection or receptacle wiring was broken or loose. But Brown goes further and says there was noise in his radio, and that "fire was shooting out of it."

The terms "crackling," "frying," "hissing," etc., are clearly intended to convey the impression that a short circuit of considerable proportions had occurred, from which fire could, and naturally would, spread. The evidence, as abstracted, does not show how the radio and Frigidaire were connected. The latter operates from a motor and requires appreciably more current than an ordinary incandescent light bulb. Such installations are frequently wired for 220 volts as distinguished from 110 volts usually utilized for incandescent lighting. Neither Wright nor Marshall Ice Electric Company had anything to do with original installation of the wiring system.

Brown's assertion that the only thing Wright did was to examine "the light socket in the front room" was supported by his wife's testimony. The latter, on cross-examination, made the statement that ". . . during the time Mr. Wright was [at our house] we heard no sparkling in the attic."

The evidence shows that when Wright arrived the main control switch was "off" and it was not turned on again until Brown, at Wright's direction, closed it after certain repairs had been made on the drop or connections in the living room where fire was seen to come from the fixture openings.

The defendants requested instructed verdicts on the ground that there was no substantial evidence to show that the fire originated because of faulty wiring and that Wright was not negligent. Brown's testimony that after Wright adjusted the main-room "drop" and the current was turned on, he did not thereafter hear the attic noise is significant. He contends, however, that in spite of the admitted adjustment of the drop and at least temporary elimination of the noise complained of, Wright and the Electric Company should be held liable for the consequent loss — Wright because he failed to go into the attic, and the Company as Wright's principal.

It has been consistently held that speculation may not be substituted for fact or reasonable inferences, and that a judgment so predicated cannot stand. In the instant case it is not shown that Wright held himself out as an expert, or as a guarantor of results. But this would not be necessary if the fire resulted from his negligence. In its final aspect the situation is that Brown, his wife, and his daughter, thought they heard a "crackling" sound in the attic. Other expressions from the same witness are that the noise appeared to come from a point near where the main-room drop came through the ceiling. Admittedly there was trouble with this drop, and admittedly it was ostensibly repaired, for Mrs. Brown testified that while Wright was in their home and presumptively after he had worked with the "drop" and fixture the "crackling" could not be heard. The system functioned efficiently after the "drop" was repaired. There was no further "fire," "crackling" or "frying."

Did Wright, as a reasonably prudent man, have a right to think that the difficulty had been overcome? Wright the answer to that question would seemingly absolve him, it is not necessarily reached in the determination of this case because origin of the fire was purely speculative. That being true, the defendants were entitled to directed verdicts. Williams, Administrator, v. Lauderdale, ante, p. 418, 191 S.W.2d 455.

The judgment against Wright is reversed and the cause is dismissed. The instructed verdict in favor of Marshall Ice Electric Company is affirmed.