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 they had 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 when the defendant left for

the day. 

The def endant presented the testimony of Mr. Gary Young, a

fire causation expert. Young investigated the fire scene

approximately eight 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 y se 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

know what 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-examination he was presented with
4

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

simply not 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 possibility as 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,

which was 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

property was 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 elementary principle 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

Morton v. Martin Aviation Corp. , 325 S.W.2d 524, 528 (Tenn. 1959):

The presumption created by this statute is one made

b y law 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 on the point

are shown. Where conflicting facts on the point are

shown the permissible deduction from this statutory legal

presumption wh ich is before the Court is one that the

jury may 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

with respect to the point involved. In other words this

presumption is 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:

Upon such a [prima facie] showing , th e bailee

assumes both the burden of producing evidence that t h e
7

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., Judge
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

) 

) 

JUDGMENT

This appeal came on to be heard upon the 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