# FILED June 25, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS AT KNOXVILLE

JAKE O. PURKEY and TEAM ) HAMBLEN CIRCUIT TECHNOLOGIES, INC., ) C.A. NO. 03A01-9707-CV-00317 ) Plaintiffs-Appellees ) ) ) vs. ) ) HON. KINDALL T. LAWSON ) JUDGE ) DENNIS PURKEY, d/b/a WEST END ) SERVICE CENTER, )

) Defendant-Appellant ) AFFIRMED AND REMANDED

EDWARD J. WEBB, JR., K. JEFF LUETHKE, Hunter, Smith & Davis, Johnson City, for Appellant. C. DWAINE EVANS, Evans & Beier, Morristown, for Appellees.

O P I N I O N McMurray, J.

I n this bailment c ase, plaintiffs, Jake Purkey and Team Technologies, Inc., filed suit after their trucks were destroyed in
a fire at the West End Service Center's (defendant) place of business. A jury found the defendant liable for the value of the trucks and also for the rental expenses incurred by Team Technolo-2

gies in procuring a substitute vehicle after i ts tru ck was destroyed. The defendant, Dennis Purkey, owner of the West End Service Station (West End), appeals, arguing there is no material evidence to support the jury's verdict. We affirm the judgment of the trial court.

O n or about January 2, 1996, Jake Purkey, son of the def e n - dant, left his truck at West End for service and repairs. Mr. David Schumaker, an owner of Team Technologies, a custom contract manufacturing business, left his company's vehicle at West End for the same purpose. On the early morning of January 3, 1996, a fire occurred which destroyed West End's service building and the two vehicles therein.

The jury trial took place on May 29, 1997. At the trial, both plaintiffs admitted that theyhad n o direct evidence that the defendant negligent ly cau sed or contributed to the fire. The defendant testified that he was unaware of anything he did or neglected to do which would have caused or contributed to the fire. He stated that he had no knowledge of the fire's cause or origin.

O n cross-examination, the defe ndant stated that the work he
was performing on Team Technologies' vehicle required disconnecting the fuel lines. He testified that he did not know whether the fuel lines had been reconnected before he left the shop on January 2.3

H e also testified that if not reconnected correctly, the fuel lines could leak and cause gasoline fumes to accumulate. The defendant stated that he "didn't pay any attention [to] gas smells — gasoline smells" and since he worked around the smell of gasoline so often, " I guess I'm immune to it." There were no open windows or vents in the building, and the doors were locked whenthe defendant left for the day.

The def endant presented the testimony of Mr. Gary Young, a fire causation expert. Young investigated the fire scene approximatelyeight days after the fire. He testified that the fire was caused by a low-order expl osion. Young stated that the evidence suggested that the fire began high in the building and spread downward. There wa s no evidence that the fire had been intentionall yse t, or that it had been caused by either of the plaintiffs' vehicles.

Young test ifie d that "it's absolutely my opinion that a natural gas explosion occurred and blew the wall out. I just don't knowwhat happened to cause the natural gas explosion." He explained that the reason he was certain it was a natural gas explosion was that natural gas is lighter than air, causing it to rise, and the burn patterns suggested the fire started in the upper portion of the building. Although Young stated he was certain of
a natural gas explosion, on cross-examinationhe was presented with4

his investigation report, which stated that the evidence "lends
some credence to the possibility of some type of natural gas leak," and which stated as its conclusion, "it is my professional opinion that the specific cause or precipitator for this fire loss can simplynot be determined based on the evidence available ..." His report also noted that he had interviewed the Morristown City Fire Investigator, who
revealed that at the conclusion of his investigation, his o fficial ruling is that this fire is undetermine d i n origin. He notes, however, that he thinks one possibilityas a possible cause for the fire might be due to the rear block wall o f the building collapsing due to some type of previous structura l pr oblem which in turn tore the gas supply lines. . .he was unable to prove the above scenario with scientific certainty but offered it as one possible explanation for the fire.
Young testified that the only indicator of a natural gas leak would be a distinctive odor. The defendant testified that he did
n o t n otice any natural gas odor before he left West End that evening. Young stated that he did not uncover any evidence suggesting that the defendant did anything to cause or contribute to the fire.

The jury awarded Jake Purkey $9,125, the amount stipulated as the fair market value of his t r u ck. The jury awarded Team Technologies $17,593.99, the value of its vehicle plus its expenses i n renting another bus ines s vehicle until a suitable replacement could be found.5

Prior to trial, the defend ant moved for summary judgment, whichwas denied by the trial court. The defen dant argu es on appeal that the denial of summary judgment was erroneous. As the court noted in Bradford v. City of Clarksville , 885 S.W.2d 78, 80 (Tenn.App. 1994), "[a] trial court's denial of a motion for summary judgmen t , pre dicated upon the existence of a genuine issue of material fact, is not reviewable on appeal when a judgment is subsequently rendered after a trial on the merits."

The defendant argues that there is no evidence to support the jury's verdict. Bailment cases such as this one are gove rned by T.C.A. § 24-5-111, which provides: In all actions by a bailor against a bailee for loss or damage to personal property, proof by the bailor that the propertywas delivered to the baile e in good condition and that it was not returned or redelivered according to the contract, or that it was returned or redelivered in a damaged condition, shall constitute prima facie evidence that the bailee was negligent, provided the loss o r damage was not due to the inherent nature of the property bailed.
I t is undisputed that plaintiffs' proof was sufficient to make out a prima facie case under the statute, and thus the burd e n shifted to the defendant to affirm atively prove he was not negligent. Morton v. Martin Aviation Corp. , 325 S.W.2d 524 (Tenn. 1959); Steiner-Liff Iron & Metal Co. v. Woodmont Country Club , 480 S.W.2d 533 (Tenn. 1972); Crook v. Mid-South Transfer & Storage Co., Inc. , 499 S.W.2d 255 (Tenn.App. 1973).6

W e are of the opinion that there was material e vid ence, including the presumption afforded by the statute, supporting the jury's verdict in this case. Defend ant m akes much of the expert Young's testimony that he found no evidence that defendant caused
o r contributed to the fire, but it is an elementaryprinciple that the jury is at liberty to accept, reject, or accord whatever weight i t will to an expert's testimony. See , e.g. , Speight v. Gibbs , 486 S.W.2d 922, 924 (Tenn.App. 1972). As noted by the Supreme Court in Mortonv. Martin Aviation Corp. , 325 S.W.2d 524, 528 (Tenn. 1959):

The presumption created bythis statute is one made b ylaw which creates an inference of a fact which is pri m a facie correct and will sustain the burden o f evidence unless and until conflicting facts onthe point are shown. Where conflicting facts on the point are shownthe permissible deduction from this statutory legal presumptionwh ich is before the Court is one that the jurymay accept or reject or accord such probative value a s it desires , and such inference is evidence and remains i n the case even though there is evidence opposed thereto withrespect to the point involved. In other words this presumptionis a prima facie proof of the fact presumed, and unless the fact thus established, prima facie, by l egal presumption of its truth is disproved, it mus t stand as proved.
I d . [emphasis added].

I n Irving Pulp & Paper, Ltd. v. Dunbar Transfer & Storage Co., Inc. , the Sixth Circuit, applying Tennessee law, stated the following:
Uponsuch a [prima facie] showing , th e bailee assumes both the burden of producing evidence that t h e7

damage was not caused by the bailee's negligence and the risk of nonpersuasion of the trier of fact . Irving Pulp & Paper , 732 F.2d 511, 5 15 (6 th Cir. 1984) [emphasis added].
The jury's response to the question on a special verdict form, request e d b y the defendant, which queried, "has the defendant, D enni s Purkey, presented sufficient evidence to prove by a preponderance of the evidence that he committed no act, error or omission that resulted in the fire in question?" was "no." Thus, the defendant did not meet his burden of persuasion of the trier of fact.

The trial court's judgment entered on the j ury's verdict is affirmed. Costs on appeal are assessed to the appellant.

_______________________ Don T. McMurray, Judge CONCUR:

______________________________ Herschel P. Franks, Judge

______________________________ Charles D. Susano, Jr., JudgeIN THE COURT OF APPEALS AT KNOXVILLE

JAKE O. PURKEY and TEAM ) HAMBLEN CIRCUIT TECHNOLOGIES, INC., ) C.A. NO. 03A01-9707-CV-00317 ) Plaintiffs-Appellees ) ) ) vs. ) ) HON. KINDALL T. LAWSON ) JUDGE ) DENNIS PURKEY, d/b/a WEST END ) SERVICE CENTER, )

) Defendant-Appellant ) AFFIRMED AND REMANDED ) ) JUDGMENT
This appeal came on to be heard uponthe reco rd from the Circui t Cour t of Hamblen County, briefs and argument of counsel. Upon consideration thereof, this Court is of the opinion that there was no reversible error in the trial court. The trial court's judgment is affirmed. Costs on appeal are assessed to the appellant.

PER CURIAM