Opinion
27862.
DECIDED MARCH 9, 1940.
Action for damages; from Fulton superior court — Judge Paul S. Etheridge. April 19, 1939.
Richard C. Smith, Walter A. Sims, for plaintiff.
Alston, Foster, Moise Sibley, Henry J. Miller, for defendant.
1. "When a plaintiff's right to recover depended upon the establishment of a particular fact, and the only proof offered for this purpose was circumstantial evidence from which the existence of such fact might be inferred, but which did not demand a finding to that effect, a recovery by the plaintiff was not lawful, when, by the positive and uncontradicted testimony of unimpeached witnesses, which was perfectly consistent with the circumstantial evidence relied on by the plaintiff, it was affirmatively shown that no such fact existed." Frazier v. Georgia Railroad c. Co., 108 Ga. 807 ( 33 S.E. 996).
2. It results from an application of the above principle to the evidence in the instant case that the judge did not err in directing the verdict for the defendant.
DECIDED MARCH 9, 1940.
Mrs. Alice Slaton brought suit against the Atlanta Gas-Light Company for alleged personal injuries as the result of an explosion of gas in her home. After the plaintiff had introduced all of her evidence the defendant made a motion for a nonsuit, which was overruled. Evidence for the defendant was introduced, at the close of which the defendant made a motion for a directed verdict in its favor. This motion was sustained, and the plaintiff excepted.
The plaintiff alleged, in effect, that she bought a stove from the defendant company, and about a year thereafter it exploded, and she received certain burns; that she filed complaints with the defendant, and that on or about December 16, 1937, the defendant's workmen made certain repairs and inspections on the thermostat (an instrument which regulates the temperature of the oven), on the stove and represented to her that the stove was in good working order and would not again explode; that thereafter, on March 5, 1938, the stove again exploded as a result of the defective repairs made on the thermostat, and she received the injuries now complained of. The defendant denied that its agents repaired the stove in the manner alleged in the petition, but admitted that on December 16, 1937, they installed a new valve regulating the top burner of the stove, and alleged that an inspection of the stove revealed nothing wrong with the thermostat or the oven. The evidence disclosed that before the repair work was done on December 16, 1937, the defendant's workmen made certain minor repairs and adjustments on the stove, such as cleaning the burners which had become clogged with grease, dirt, or jelly, and inspected the thermostat and oven and found nothing wrong with either. The evidence for the plaintiff showed that on December 16, 1937, the defendant's workmen made certain repairs on the stove, but that it was not actually known to the plaintiff whether the repairs were made on the thermostat or not. The defendant's evidence, by the testimony of the defendant's workmen, was that these workmen replaced the valve regulating the top burner of the stove, cleaned the top burners, and checked the thermostat to the oven and found that it was in good working order. This evidence was direct, positive, and uncontradicted, and was not inconsistent with the circumstantial evidence of the plaintiff. Testimony of the plaintiff's witness showed that the oven and thermostat were used frequently between December 16, 1937, the date of the repairs by the defendant's workmen, and March 5, 1938, the date of the explosion which caused the injuries complained of.
The testimony of the plaintiff was, in substance, that on the morning of March 5, 1938, she arose to get breakfast; that she had lighted the top burners of the stove and oven, preparatory to cooking some biscuit; that she did not know how long the oven had been lighted or heating, but she made up the biscuit and had them on the table close to the stove, and had other things in the stove as usual, when the stove exploded on the top; that the explosion did not blow the stove to pieces; that she did not know whether it blew the door open or not, and she did not know how she got burned. Mrs. Pierce, the plaintiff's sister, testified that she was there on the morning the plaintiff was burned, and saw the burns, but did not see the explosion; that the stove was not blown open nor was the oven door blown open. The remaining part of the evidence for the plaintiff as to what happened on March 5th was indefinite and uncertain, leaving much to circumstantial evidence as to how the explosion occurred.
The evidence of the defendant as to what occurred on that day and the reason for the explosion, if any, was both positive and direct. T. H. Townsend testified that by instruction he met Finch at the home of the plaintiff on March 5, 1938, between 10:00 and 10:30 a. m. Finch was already there. They went into the house together. Townsend tried to light the oven, but could not do so, for the heat control was cut back below the temperature of the oven and the oven was hot. There was no indication of an explosion. He then raised the temperature of the heat control to where gas would pass through to the oven, and lit the burners; this was done by turning the little red knob. After lighting it he turned back the little red knob to where it would cut off the gas from the oven, and the oven went out. He took out the by-pass plug or valve (which controls the flow of gas into the thermostat when the main thermostat valve is closed, so that a flame remains in the oven in the nature of a pilot), to see whether or not it was stopped up, but he did not find anything wrong. He identified the particular by-pass plug exhibited to him as the one he took out. He testified, that on this oven there was what is known as a precautionary pilot in addition to the by-pass plug, that the line comes from the oven valve, and just before it goes into the thermostat it separates, and one line goes off to the precautionary pilot and the other line goes into the thermostat; that this precautionary pilot, or raw-gas pilot, is separate from the main burners, and even though the thermostat was completely closed and the by-pass on the thermostat closed the precautionary pilot would burn unless it had been turned off; that Finch went to the shop to get a new by-pass plug, as he had ruined the threads on the old one either in trying to screw it back or when it was being taken off; that they examined the part very carefully, held it up to the flashlight, and looked through it, but found nothing wrong with it; that the threads were ruined, because when such a part is taken out while the stove and the part are both hot, nine times out of ten the threads are ruined; and that it was probable that particles of rust in the stove line could have got into the by-pass plug and thereby stopped it up. Finch's testimony corroborated that of Townsend in all details. The testimony of every one else corroborated the evidence of Townsend and Finch, that the by-pass plug was not defective, and that the only possible cause of the thermostat cutting off the entire flame on the burners would be a stoppage of the by-pass plug due to some slight obstruction, and this was likely to occur in view of the particles of rust from the stove line getting into the plug.
The sole charge of negligence against the defendant was in defectively repairing the plaintiff's stove on December 16, 1937, by installing therein a defective thermostat, which act was alleged to have been the proximate cause of her injuries. If perchance a suit is brought in good faith by a party who erroneously thinks that when a gas stove explodes, which has been installed and recently repaired, one or both, by the gas company, the company is necessarily liable and responsible for injuries received from such explosion, where the company has not satisfactorily accounted for the occurrence, even if the direct evidence establishes without dispute that the company used due care in repairing or inspecting the stove, generally speaking, the only effective defense or protection a gas company has against such a suit is the direct testimony of the workmen who did the work; and this is often true only on account of the rule that the negligence of the defendant can not be established by circumstantial evidence which is consistent with the direct, uncontradicted, reasonable, and unimpeached testimony of the workmen who did the work, which direct testimony shows that the workmen were not negligent as alleged. It should be remembered that a corporation can act only through its agents; and where it sends its agents to repair a stove, the only way, generally speaking, the company can prove by direct and positive evidence that the repairing and inspection were not defective is by the testimony of these agents so sent. In the instant case, where the plaintiff's evidence tended to show that the company's workmen repaired a stove on or about December 16, 1937, and the plaintiff frequently used the oven of the stove between that date and March 5, 1938, when the stove exploded; that the workmen of the company, on notification of the explosion, went to investigate it several hours thereafter, and after disassembling certain parts of the stove in order to investigate the trouble, the workmen sent off and obtained certain new parts therefor, which they used in reassembling the parts of the stove; and where the defendant's workmen positively testified that the reason for getting the new parts and using them in reassembling the stove was that they had ruined the threads on the old parts, either in disassembling or in attempting to reassemble the stove while it was hot (because when the named parts are removed while the stove is hot, nine times out of ten the threads on those parts are ruined), and the new parts were not obtained because the old ones were mechanically defective; and where the defendant's workmen further positively testified that the investigation of the stove by them several hours after the explosion showed that the former repairs on December 16, 1937, had had nothing to do with the explosion, but that it might have been caused by a particle of rust stopping up the pipe, or some other cause in no way connected with the former repairs of the stove, and that there was no negligence in any of the inspections of the stove, there was not sufficient circumstantial evidence to establish the fact that the company did not exercise due care in repairing a particular part of the stove, where the workmen who did the work, were unimpeached, and testified positively that the repairs were not defective and that they exercised due care in repairing and inspecting.
If the circumstantial evidence of the witnesses for the plaintiff, although true, does not contradict the facts positively testified to by the workmen that they were not negligent in repairing and inspecting the stove, such circumstantial evidence is not inconsistent with the positive, direct testimony of the workmen; and it can not be said that the plaintiff has affirmatively shown that the workmen were guilty of negligence. Western Atlantic Railroad Co. v. Gentle, 58 Ga. App. 282, 297 ( 198 S.E. 257). "A fact can not be established by circumstantial evidence which is perfectly consistent with direct, uncontradicted, reasonable, and unimpeached testimony that the fact does not exist." Neill v. Hill, 32 Ga. App. 381 (2-b) ( 123 S.E. 30). "If the direct evidence established, without dispute, that the defendant was not negligent, the verdict in the plaintiff's favor is unlawful, although the defendant had not satisfactorily accounted for the occurrence." Emory University v. Bliss, 35 Ga. App. 752, 754 ( 134 S.E. 637); Smith v. AEtna Insurance Co., 58 Ga. App. 711 ( 199 S.E. 557). Under the evidence and the rules above stated, the judge did not err in directing the verdict.
Judgment affirmed. Broyles, C. J., and Guerry, J., concur.