Bible & Godwin Const. Co., Inc. v. Faener Corp.

• Decision Date: 07 January 1974
• Citation: 504 S.W.2d 370
• Parties: BIBLE AND GODWIN CONSTRUCTION COMPANY, INC., Appellee-Complainant, v. FAENER CORPORATION and Aetna Casualty and Surety Company, Appellants-Defendants.
• Court: Tennessee Supreme Court

Page 370

504 S.W.2d 370

BIBLE AND GODWIN CONSTRUCTION COMPANY, INC., Appellee-Complainant, v. FAENER CORPORATION and Aetna Casualty and Surety Company Appellants-Defendants.

Supreme Court of Tennessee.

Jan. 7, 1974.

John P. Davis, Jr., Knoxville, for appellants-defendants; Hodges, Doughty & Carson, Knoxville, of counsel.

F. Chris Cawood, Eblen & Eblen, Kingston, for appellee-complainant.

OPINION

DYER, Chief Justice.

Faener Corporation and its insurance carrier, Aetna Casualty & Surety Company (referred to in this opinion as defendants), by leave of the chancellor, appeal from the action of the chancellor in overruling their demurrer filed in answer to the bill filed against them on May 22, 1970, by Bible &amp Godwin Construction Company (referred to in this opinion as complainant), which bill sought reimbursement either by way of damages for breach of contract, indemnity or contribution.

On May 8, 1968, complainant entered into a contract with Brooks Furniture Manufacturing Company (referred to in this opinion as Brooks), whereby complainant was to construct an addition to the Brooks plant. On May 16, 1968, complainant entered into a contract with defendant, Faener Corporation, whereby certain of the work under the Brooks contract was subcontracted to Faener Corporation. On August 10, 1968, Faener Corporation, under its subcontract, was welding the roof on the new addition to the old plant at a point near a paint spray room when the Brooks plant caught fire causing extensive damage.

As a result of this fire Brooks filed suit in the Circuit Court of Claiborne County against both complainant and Faener Corporation for damages based upon the negligent performance of their contacts. Upon the trial the jury returned a verdict against complainant, the judgment entered being in the amount of $20,409.79, including interest and costs, which judgment has been paid. The jury found in favor of Faener Corporation and a judgment was so entered.

In the case sub judice filed to recover the $20,409.79, paid by complainant, it is stated in complainant's brief that the only issue here on appeal is as follows:

Appellee is of the opinion that the determinative issue for the Court is the question of whether or not a jury verdict in a prior tort case against a prime contractor and relieving a subcontractor precludes a subsequent action by the prime contractor against the subcontractor for indemnity based on their contract relationship.

In making this statement complainant admits it has abandoned any claim upon the theory there was an agreement among counsel at the trial in the Circuit Court which would constitute a contract or any claim for contribution. We accept this statement and will consider only the claim made by the complainant upon defendants for indemnity.

Defendants allege error in the failure of the chancellor to hold claim for indemnity was barred by T.C.A. § 23--3104(f), which statute is as follows:

The judgment of a court in determining the liability of the several defendants to a claimant for an injury or wrongful death after trial on the merits, shall be binding among such defendants in determining their right to contribution or indemnity, except where a claimant commenced an action for injury or wrongful death prior to the effective date of this chapter.

The thrust of this argument is that since the liability of both parties has been determined after a trial on the merits in the Circuit Court where Faener Corporation was found to have no liability in this matter, then under T.C.A. § 23--3104(f) complainant is barred from recovering either contribution or indemnity.

This statute is a part of Chapter 575, Public Acts of 1968, designated as the 'Uniform Contribution Among Tort-Feasors Act,' now codified in T.C.A. as §§ 23--3101 to 23--3106.

In construing T.C.A. § 23--3104(f), which is a part of Chapter 575, enacted by the Legislature as one Act, we examine the entire Act with a view to arrive at the true intention of each section and the effect to be given, if possible, to the entire Act and every section thereof. Where different sections are apparently in conflict we must harmonize them, if practicable, and lean in favor of a construction which will render every word operative. Tenn. Electric Power Co. v. Chattanooga, 172 Tenn. 505, 114 S.W.2d 441 (1937); Tiger Creek Bus Line v. Tiger Creek Transport, 187 Tenn. 654, 216 S.W.2d 348 (1948); Williams v Thomas Jefferson Ins. Co., 215 Tenn. 356, 385 S.W.2d 908 (1965).

Under this rule of statutory construction, in construing T.C.A. § 23--3104(f), as applied to the facts of this case, it is necessary to consider T.C.A. § 23--3102(f), a part of Chapter 575, which reads as follows:

This chapter does not impair any right of indemnity under existing law. Where one tort-feasor is entitled to indemnity from another, the right of the indemnity obligee is for indemnity and not...