Chattanooga Warehouse & Cold Storage Co. v. Anderson

• Decision Date: 25 February 1919
• Citation: 210 S.W. 153,141 Tenn. 288
• Parties: CHATTANOOGA WAREHOUSE & COLD STORAGE CO. v. ANDERSON.
• Court: Tennessee Supreme Court

210 S.W. 153

141 Tenn. 288

CHATTANOOGA WAREHOUSE & COLD STORAGE CO. v. ANDERSON.

Supreme Court of Tennessee.

February 25, 1919

Certiorari to Court of Civil Appeals.

Action by Hattie A. Anderson, administratrix, against the Chattanooga Warehouse & Cold Storage Company. Judgment for plaintiff reversed, and suit dismissed, by Court of Civil Appeals, and the case brought to the Supreme Court by certiorari. Judgment of Court of Civil Appeals affirmed.

McKINNEY J.

A. S Anderson, the husband of the defendant in error, on October 23, 1916, fell through an open elevator shaft, located in the building occupied by the plaintiff in error, in Chattanooga and received injuries, from which he died in a few hours.

Suit was instituted to recover damages therefor, and a verdict of $20,000 was rendered by the jury, upon which judgment was entered, after a motion for a new trial had been overruled by the court.

Upon appeal this judgment was reversed by the Court of Civil Appeals, and the suit was dismissed; motions for peremptory instructions having been made in the lower court. The case has been brought to this court by writ of certiorari.

The plaintiff in error operated a warehouse and cold storage plant in Chattanooga in a building owned by the Stone Fort Land Company. Mr. Theodore King was president and general manager of the storage company. This building extended 100 feet from east to west, 80 feet from north to south, and was six stories in height. The south fronted on the street, and had a platform on the level with the first floor. There was a large door on the south side, about the middle of the building, and goods received by wagon or truck, for storage were unloaded on this platform and conveyed into the building through this large door.

The office was located in the southwest corner of the building on the first floor, and was partitioned off from the wareroom proper. There was a door leading from the office into the wareroom, a door leading from the platform into the office, and steps leading from the street up to the platform, about opposite the office door.

The business of the storage company had grown to such proportions that the building occupied by it was insufficient to take care of its business, so that, on September 20, 1916, it entered into a contract with the Stone Fort Land Company, by which the latter was to erect a building east of and adjoining the old building, and lease same to the storage company for a term of years. The new building was to be 100 by 180 feet, to be four stories high, and was to be constructed of reinforced concrete. The plans and specifications for the new building were agreed upon and made a part of the contract between the storage company and the land company. The contract for the erection of the new building was let by the land company to T. S. Moudy & Co. Mr. McDavity was the superintendent in charge of the building, W. C. Spiker was the inspector of the concrete work, and said A. S. Anderson was the inspector under Mr. Spiker. W. T. Downing, the architect, had general supervision of the entire work. None of these parties were in the employ of the storage company, and this latter company had nothing to do with the erection of the new building, the supervision of the work, or the workmen, and was not to be consulted about anything connected therewith.

Mr. King, the president and general manager of the storage company, was frequently about the new building discussing it with the workmen, and he says that his purpose in this was to see that a good building was erected in accordance with the specifications, since he was to occupy the building.

Mr. Anderscon was on the work from 10 to 15 days before he was killed. During that time he had frequent conversations with Mr. King, where the new building was being erected, several times in the office of the old building, and he and Mr. King were seen in the office several times engaged in conversation with blueprints before them.

Mr. King testifies that, according to his recollection, they never discussed the plans or the construction of the new building in the office, but that on several occasions some one did call Mr. Anderson over his telephone, and that he would send for Mr. Anderson, who would come to the office and talk over the telephone.

So far as the record shows, Mr. Anderson, prior to the day of the injury, had never been in any part of the storage company's building, except the office.

Mr. King testifies, without contradiction, that all business with the storage company was transacted in the office; that no one, except the employés, was permitted to enter the wareroom, with the further exception that customers having goods stored there were permitted to inspect same, when accompanied by some employé of the company; that he had never invited Mr. Anderson into the wareroom, and that he had never seen him in any part of the building other than the office.

About 4:30 or 5 o'clock on the afternoon of the accident Mr Anderson and Mr. King were engaged in a conversation about the middle of the new building. Mr. King returned to the old plant. There is a dispute as to whether he was in the office or in the wareroom, when Mr. Anderson came to the old building some 20 or 30 minutes later. Mr. Anderson spoke to one Lowe, an employé of the Hamilton Produce Company, who was unloading some barrels of cabbage at the large door on the south side, and asked if he knew where Mr. King was, to which Lowe replied that he thought Mr. King was in the back end of the wareroom. There is nothing in the record to show the purpose for which Mr. Anderson wanted to see Mr. King. However, it has been assumed by counsel that he wanted to see him about the construction of the new building. The elevator shaft was about 25 feet from this large door, and some 10 or 12 feet from the door leading from the office into the wareroom. Lowe did not notice whether Mr. Anderson entered through the...