Burkett v. Studebaker Bros. Mfg. Co.

• Decision Date: 11 October 1912
• Citation: 150 S.W. 421,126 Tenn. 467
• Parties: BURKETT v. STUDEBAKER BROS. MFG. CO.
• Court: Tennessee Supreme Court

150 S.W. 421

126 Tenn. 467

BURKETT v. STUDEBAKER BROS. MFG. CO.

Supreme Court of Tennessee.

October 11, 1912

Certiorari to Court of Civil Appeals.

Action by Carrie H. Burkett against the Studebaker Bros Manufacturing Company. A judgment for defendant was reversed by the Court of Civil Appeals, and defendant brings certiorari. Judgment of the Court of Civil Appeals reversed and that of the trial court affirmed.

Eugene E. Ivins, of Etowah, for plaintiff.

T. Pope Shepherd, of Chattanooga, and D. S. Stuart, of Athens, for defendant.

NEIL J.

This is an action for damages, brought against the defendant to recover for injuries alleged to have been inflicted upon the person of the plaintiff, resulting from a defect in a carriage made by the defendant, by reason of which one of the rear wheels gave way, and caused the carriage to partly overturn and throw the plaintiff out in such manner as to inflict serious injury upon her. The trial judge directed a verdict in favor of the defendant. From the judgment rendered thereon the plaintiff appealed to the Court of Civil Appeals and there the judgment was reversed. The case was then brought to this court by certiorari on the part of the defendant.

The undisputed facts disclosed by the record are as follows:

A short time prior to September 30, 1908, the plaintiff and her then husband, Col. T. M. Burkett, were desirous of purchasing a carriage for the use of Mrs. Burkett. They applied to Reed Hardware Company, a business firm in Athens. Tenn., where they resided. That firm wrote to several manufacturers of carriages, among others the defendants. Thereupon, on the 30th of September, the defendant wrote a letter to plaintiff in which it recommended two of their carriages of the kind known as a "station wagon." This letter, after describing the carriages in detail, stated: "We use the best material throughout in the construction of these carriages, and every attention is given to detail of finish to make them complete in every respect. We would like very much to have you ride in a Studebaker carriage, and we trust that you will conclude to favor the Reed Hardware Company with your order." Shortly after this an agent of the defendant called upon Burkett and wife, in Athens, and exhibited cuts of the vehicle desired, in the presence of Mr. Sherman, a member of the firm of Reed Hardware Company, but no purchase was at that time made. A month or two after this Col. Burkett took up the matter with Gillespie-Ford Company, a business concern of Chattanooga. On the 18th of November, this firm wrote Col. Burkett a letter in which they said: "We are inclosing you a cut of the station wagon that speaks for itself. We don't know where or of whom you could get one that would equal it in looks or merit. These people have had the experience, the money, and the material to make the best on the market, and we are very anxious to make this to you, as we know a Studebaker sold means a satisfied customer. We are making you a price for immediate acceptance that barely equals the price of a second-grade outfit. The fact is that, as a man of your wide political experience well knows, all prices will advance in from 30 to 60 days, and we wish to get this order to the factory before they notify us. Understand us that this is no scheme to push you into anything, for we will as gladly sell you later as now; but, if they advance on us, we will have to do the same with our customers. Hoping that we may be allowed to have the pleasure of your order by return mail, we are," etc. On November 21st Col. Burkett replied, acknowledging the receipt of the letter just mentioned, saying: "We will take the wagon delivered here complete at $500 cash. We don't want anything but the very best made into the style ordered, including all the things set out under cut 1397," etc. On the 23d of the same month Gillespie-Ford Company replied to the foregoing: "We have forwarded your order to the Studebaker Bros. Mfg. Co. for job that you selected, and as soon as we get word from them will let you know date of shipment. This will be a swell turnout, and will be favorably commented on wherever seen." Thereupon Gillespie-Ford Company sent the order to defendant, with orders to ship the goods direct to Col. Burkett, at Athens. This was done, and the bill was charged by defendant to Gillespie-Ford Company. The vehicle reached the Burketts in the early days of January, and was presented by Col. Burkett to the plaintiff. A few days thereafter, the first time it was used, one of the wheels broke down. There were only three persons in the conveyance besides the driver, and it was standing still, except that the horses were moving backward slowly, because crowded in front by another vehicle. There was no violent movement at all. One of the rear wheels slipped down a slight declivity, a few inches in length, and all the spokes broke off at the hub, causing the carriage to overturn, and plaintiff to be thrown to the ground, and injured. The testimony shows that the wood of which these spokes were made was, as an expert witness says, "brash"; that is brittle, and hence very inferior as spoke timber. The declaration, in its several counts, presents the case in two aspects: First, as an article purchased...