Chambers Built Ins Co. v. Rabb

G-eorge Rose Smith, J.

The appellant, a manufacturer of cooking stoves, appeals from a verdict and judgment awarding the appellees $20,000 as compensation for severe burns suffered by their two-year-old daughter, Debra Dianne Rabb. The appellees’ complaint alleged that a defect in their kitchen range, which had been manufactured by the appellant, caused a container of grease to catch on fire and injure the child. The serious question in the case is whether there is any substantial evidence to support a finding that the fire was in fact caused by a defect in the above.

Mr. and Mrs. Rabb bought the stove new in 1959. It had been used in the preparation of two meals a day for about three weeks when the fire occurred on the evening of September 8. That night Mrs. Rabb, in preparing supper, fried potatoes in about two quarts of grease in the stove’s deep well. Near the end of the meal, which was eaten at a table about two feet from the stove, the door to the storage compartment in the lower righthand part of the stove fell open. Both Mr. and Mrs. Rabb testified that they could see smoke and flame in the compartment, and the grease in the deep well was on fire. Mrs. Rabb at once carried her little daughter out of the house. Mr. Rabb used a garden rake to pick up the container of burning grease and carry it outside. Just after he had backed through the door, however, Debra Dianne threw her arms around his legs and caused the hot container to fall off the rake, splashing burning grease upon the child,

Throughout the case the appellant’s theory has been that Mrs. Rabb, after cooking the French fried potatoes, forgot to turn off the burner under the deep well, so that the grease became so hot that it caught on fire. Mr. and Mrs. Rabb testified that the burner was turned off; but, if they were mistaken about this, there is an abundance of evidence showing that the failure to turn off the burner under the grease could have caused the fire. This testimony is in effect uncontradicted and need not be set out in detail.

To meet their burden of proving a defect in the stove the plaintiffs relied upon the testimony of C. B. Lampkin, a qualified appliance repairman. Lampkin examined the damaged range about a month after the fire, when, following Debra Dianne’s release from the hospital at El Dorado, the Babbs returned to their home at Magnolia. Lampkin found two loose mounting screws at a point where there was a gasket a few inches below the right front top burner on the stove. He said that gas escaping from the leaky gasket would be ignited ‘ ‘ almost instantly” by the pilot light for the right front burner. On cross examination he said that if the screws had been loose all along he did not think the stove could have been used for three weeks without a fire.

Lampkin’s testimony, viewed in its most favorable aspect, would support a finding that the loose connection had caused gas to be ignited by the pilot light at a point just below the right front top burner, which would place the fire in the upper front area of the storage compartment. It was still necessary, however, for the plaintiffs to show that flames originating in this area could in turn cause the grease in the deep well to catch on fire. Upon this vital point we can find no evidence to support the jury’s conclusion that the defective connection was the proximate cause of the fire in the deep well.

The deep well extended downward from the right rear section of the top of the stove. The well itself was a hollow metal cylinder, open at the top and the bottom. Bock wool about an inch and a half in thickness was wrapped around the outside of the well, for insulation. The well was heated by a gas burner at the bottom of the cylinder. The removable container, which at the time of the fire was filled with grease to about two-sevenths of its capacity, was placed in the metal cylinder when being used for cooking. There was a lid for the well, which Mrs. Rabb put back in place after she fried the potatoes.

The fatal weakness in the appellees’ proof is the complete absence of any evidence tending to show how a gas flame in the upper front area of the storage compartment could have ignited the grease in the deep well, in the lower rear section of that compartment. There is no proof whatever that the flame could have come in direct contact with the'grease. To the contrary, the substance of Lampkin’s testimony on this point is that the leaking gas could not have lit the grease: “You cannot ignite grease in the deep well from anything on the outside.” This statement by the witness is unquestionably a correct summation of the situation. With the lid covering the deep well the flames could not have come up through the opening around the front burner, traveled to the back of the stove, and then made their way past the lid in order to descend to the grease at the bottom of the well. Nor, since natural gas is lighter than air, could the fire have traveled downward in the storage compartment to enter the bottom of the cylinder, then up to the top of the metal container, and then down again to reach the grease. There is no possibility that leaking gas could have filled the compartment before igniting, for Lampkin himself testified that the gas would have been ignited almost instantly from the pilot light close by. Finally, there was no explosion. Neither Mr. nor Mrs. Rabb testified that an explosion occurred, and Lampkin said that gas leaking from the loose gasket would have been ignited ■by the pilot light without an explosion.

There being no proof that the flames came in direct contact with the grease, the only alternative basis for a recovery would be a showing that the flames played against the outside of the deep well and heated it to such an extent that the grease caught on fire. The record contains no evidence to support such a conclusion. Lampkin and one of the appellees’ attorneys were invited to attend, and did attend, a demonstration at which the appellant undertook a reproduction of the alleged fire. It was found that if the deep-well burner was not turned off, as the appellant insists to have been the ease, the grease would become overheated to the point of catching on fire in an hour and ten minutes. The effect of Mr. Babb’s testimony was that an hour and ten minutes elapsed between the time when his wife started to cook and the time of the fire. Mrs. Babb fixed the time at about forty minutes.

At this demonstration the appellant also loosened the mounting screws in question, upon a stove of the same model, and permitted the leaking gas to ignite from the pilot light and burn freely in the upper part of the storage compartment. The grease had first been used tq fry potatoes. It was found that its temperature, instead of going up, actually decreased. This is not surprising, in view of the fact that the grease not only was below the point where the heat was applied but also was insulated by the rock wool, the wall of the metal cylinder, the intervening air space, and the wall of the removable container. Moreover, it should be pointed out that the appellant’s attempted reproduction of the fire was not in the nature of sui’prise testimony produced for the first time at the trial. The appellees’ lawyer and their expert witness were both invited to view the demonstration well in advance of the trial, so that there was ample opportunity for a rebuttal.

It is fair to say that the appellees have never, in their proof, in their brief, or in their oral argument in this court, demonstrated facts upon which it could be found that the leaky gasket caused the grease in the deep well to catch on fire. In effect they bypass this problem, by contending that if Mrs. Babb turned off the burner under the deep well, as she testified, then the fire could only have come from the defect in the stove. But this argument ignores the vital issue of causation and would permit the jury to find a causal connection when no witness in the case was able to do so.

Beversed and remanded.

McFaddin, Johnson, and Holt, JJ., dissent.