Edwards v. Hamill , 266 N.C. 304 ( 1966 )

145 S.E.2d 884 (1966) 266 N.C. 304

Johnnie F. EDWARDS and
Dr. John D. Messick
v.
J. C. HAMILL and Coastal Refrigeration Company, Inc., doing business as All-Weather Cooling & Heating Company.

No. 113.

Supreme Court of North Carolina.

January 14, 1966.

David E. Reid, Jr., Greenville, for plaintiff appellants.

James & Speight, by W. W. Speight and William C. Brewer, Jr., Greenville, for defendant appellees.

SHARP, Justice.

Plaintiffs' evidence justifies the conclusion that Hamill's use of an acetylene torch under the conditions and circumstances disclosed by the evidence caused the explosion and flash fire which is the subject of this action. Patton v. Dail, 252 N.C. 425, 114 S.E.2d 87. "It was his duty to exercise reasonable care; and that includes reasonable foresight as to harmful consequences of his acts and omissions." Johnson v. Nicholson, 159 Cal. App. 2d 395, 407-408, 324 P.2d 307, 314. The question here is whether plaintiffs' evidence would permit a jury fairly and reasonably to infer that Hamill, in the exercise of proper care, should have apprehended that explosion and fire might follow his use of an acetylene torch in and around the ductwork which led to vents in rooms the floors of which had just been treated with lacquer. Defendants contend that plaintiffs' evidence will not justify such an inference.

On a motion for nonsuit, the court must not only take plaintiffs' evidence as true, but must consider it in the light most favorable to them. Thomas v. Thurston Motor Lines; Thurston Motor Lines v. Watson, 230 N.C. 122, 52 S.E.2d 377. Thus considered, the evidence reveals that when Whitehurst told Hamill he could not walk on the floors for several hours, he also said to him, "Whatever you do, don't strike a match around here." When this warning was given both men were in the kitchen and, at that time, the floors of the den and livingroom were being treated. Whitehurst said, "The odor was about to get me myself. That type of lacquer carries a higher odor than gasoline." He had described the area of danger as being "around here" which, although indefinite, would surely include the space beneath the house. If a lighted match were dangerous "around here," a fortiori, an acetylene torch which produced heat enough to melt solder! A workman competent to install air conditioning and to use an acetylene torch presumably was not totally without knowledge and experience in other aspects of home construction. The average person knows that floor lacquer, varnish, and shellac are all highly volatile, flammable liquids which should be kept away from an open flame. Hamill's statement to the insurance adjuster is sufficient to establish that he was using the torch when the explosion occurred. Whether he used it in the face of a danger which he should have apprehended, and thus failed to exercise the care of the reasonably prudent man under the circumstances, was a question for the jury. Clearly, therefore, the nonsuit as to Hamill was erroneous.

The evidence of Hamill's statement to the insurance adjuster, however, was not admitted as against his employer, the corporate defendant. Defendants filed a joint answer, in paragraph 7 of which it is admitted that, at the time Hamill went under the house with the acetylene torch, he was an employee "acting in the course and scope of his employment by the defendant All-Weather Cooling & Heating Company." This admission eliminated the issue of agency from the case. But there is no admission in the answer that Hamill ever lighted the torch. If paragraph 7 contains recitals not responsive to specific allegations which might justify an inference that Hamill did light the torch, these were not introduced in evidence, and, for that reason, cannot be considered in passing upon the motion for nonsuit. See Leathers v. Blackwell Durham Tobacco Co., 144 N.C. 330, 340, 57 S.E. 11, 14, 9 L.R.A.,N.S., 349; Smith v. Smith, 106 N.C. 498, 504, 11 S.E. 188, 189; Stansbury, N.C. Evidence § 177 (2d Ed.1963).

The absence of evidence competent against All-Weather Cooling & Heating Company on the crucial question of what caused the explosion requires that the nonsuit as to it be sustained. Branch v. Dempsey, 265 N.C. 733, 145 S.E.2d 395. No doubt this evidence could have been—and yet may be—obtained by an adverse examination of Hamill.

Since the case goes back for a new trial as to Hamill, we take notice of plaintiffs' assignments of error based upon their exceptions to the refusal of the court to find that the Chief of the Greenville Fire Department was an expert in the detection of causes of fires and explosions. His training and professional knowledge failed to satisfy the court of his competency to testify as such an expert and the court concluded that it could only find him to be "an expert fireman." The judge's conclusion was a factual one which is sustained by competent evidence. Under these circumstances this Court cannot review his findings. Blue v. Aberdeen & W. E. R. R., 117 N.C. 644, 23 S.E. 275; Stansbury, N.C. Evidence § 133 (2d Ed.1963).

Reversed in part; affirmed in part.