Cantrell v. Burnett & Henderson Co.

• Decision Date: 11 December 1948
• Citation: 216 S.W.2d 307,187 Tenn. 552
• Parties: CANTRELL v. BURNETT & HENDERSON CO. et al.
• Court: Tennessee Supreme Court

216 S.W.2d 307

187 Tenn. 552

CANTRELL v. BURNETT & HENDERSON CO. et al.

Supreme Court of Tennessee.

December 11, 1948

Error to Circuit Court, Madison County; Mark Walker, Judge.

Action by George Leon Cantrell against Burnett & Henderson Company and Hudson Sales Corporation for breach of implied warranty upon sale of an automobile and for defective construction of the automobile. After judgment for defendants was affirmed by Court of Appeals, certiorari was denied. Upon plaintiff's petition to rehear.

Petition to rehear denied.

Waldrop, Hall & Winningham, of Jackson, for plaintiff in error.

Moss & Benton, of Jackson, for defendant in error Burnett & Henderson Co.

Jack Manhein, of Jackson, for Hudson Sales Corporation defendant in error.

TOMLINSON Justice.

In a memo opinion filed October 16, 1948, certiorari in this case was denied. Cantrell, the petitioner for certiorari, has filed the petition to rehear. The burden of his complaint is that the result of our conclusion in denying the certiorari is to deprive him of his constitutional right to a jury trial.

It is apparent from the face of the petition and the authorities to which it refers that counsel is laboring under the erroneous impression that our conclusion as to respondent. Hudson Sales Corporation, was dictated by Code, section 10654. Probably in denying certiorari, we should have gone into more detail than we did in stating our conclusion as to the Hudson Sales Corporation. So, in considering and disposing of the insistence made by the petition to rehear we will state in more detail what we conceive to be the facts and law which control the question.

Cantrell purchased a new Hudson automobile from Burnett & Henderson Company, a dealer at Jackson. Burnett & Henderson Company had bought this car from the manufacturer, Hudson Sales Corporation. That automobile was destroyed by fire three or four days after its purchase. It was Cantrell's insistence that the proximate cause of the fire was a defect in the wiring or other similar construction of the automobile which Burnett & Henderson Company had sold him.

Based upon the theory just stated, Cantrell sued both the dealer and the manufacturer, and proceeded to trial upon a three count declaration. The first count was against the dealer predicated upon Code section 7208 which imposes upon the dealer an implied warranty as to the condition of the car when sold. The second count sued both the dealer and the manufacturer under the same code section. The third count sued the manufacturer alone on the allegation that the car was defectively constructed, and that this defect caused the fire. Of course, the third count sounded in tort, whereas the other two sounded in contract; but they were grounded upon the same alleged facts.

Upon the trial of the case to a jury, after both sides had introduced all the proof they cared to offer and had rested the trial judge withdrew the case from the jury as to the Hudson Sales Corporation on the theory that the Hudson Sales Corporation, the manufacturer, was not liable, in any event because of lack of privity of contract, but permitted the case to go to the jury as to the dealer. Burnett & Henderson Company, after giving the jury this instruction:

'If you find that the plaintiff purchased the automobile involved in the lawsuit from the defendant Burnett and Henderson Company, and if you further find that said automobile at the time of such purchase by the plaintiff was not of merchantable quality but was in some way defective, and that the fire which destroyed said automobile was the result of such defect, then you shall return a verdict in favor of the plaintiff against the defendant Burnett & Henderson Company.'

It is clear that the issue submitted to the jury for determination was whether the automobile when purchased by Cantrell from Burnett & Henderson Company was at that time 'in some way defective, and that the fire which destroyed said automobile was the result of such defect.' The determination of that issue by the jury was controling as to whether it, the jury, 'shall return a verdict in favor of the plaintiff against the defendant Burnett & Henderson Company.'

It is also clear that if the automobile, when sold to Cantrell by Burnett & Henderson Company, was not in some way defective, or that the fire which destroyed it was not caused by such defect, then Hudson Sales Corporation is, as a matter of law, not liable to Cantrell on any theory, tort or contract, because liability is predicated entirely upon the proposition that the car was defective when bought by Cantrell and that this defect caused the fire which destroyed it.

Upon the issue submitted to it, to wit, whether the automobile when sold to Cantrell by Burnett & Henderson Company had a defect which caused the fire, the jury found that this automobile at the time it was sold to Cantrell by Burnett & Henderson Company did not have a defect which caused the fire that destroyed it.

This verdict was concurred in by the Trial Judge and the Court of Appeals upon material supporting evidence. So, the judgment rendered against Cantrell upon that verdict judicially determines it to be a fact that at the time of its sale to Cantrell that car did not have a defect which caused the fire that destroyed it. That being true, the Hudson Sales Corporation could not, as a matter of law, be liable to Cantrell on any theory, tort or contract, for the destruction of that car, if this judgment against Cantrell on this judicially determined fact is binding against him in a suit subsequently conducted by him against the Hudson Sales Corporation on the identical fact already judicially determined, the Hudson Sales Corporation by reason of the directed verdict not being a party to the suit at the...