Curtis v. Murphy Elevator Company, Civ. No. 3-75-253.
| Citation | 407 F. Supp. 940 |
| Decision Date | 13 January 1976 |
| Docket Number | Civ. No. 3-75-253. |
| Parties | Howell CURTIS, d/b/a Curtis Mortgage Company v. MURPHY ELEVATOR COMPANY and Rockwell International. |
| Court | U.S. District Court — Eastern District of Tennessee |
COPYRIGHT MATERIAL OMITTED
Calvin N. Taylor, William A. Young, Knoxville, Tenn., for plaintiff.
John P. Davis, Jr., Hodges, Doughty & Carson, Jerry A. Farmer, Knoxville, Tenn., for defendants.
This case was filed by Howell Curtis doing business as Curtis Mortgage Company against Murphy Elevator Co., Inc., Fincor, Inc., and Rockwell International. Since Fincor is owned by Rockwell International, a voluntary non-suit was taken against it at the request of plaintiff. Jurisdiction is based on diversity of citizenship and the amount in controversy. Murphy Elevator Company has filed a cross-claim against Rockwell seeking a judgment over for any amount that the plaintiff may recover from it.
Plaintiff seeks damages from the defendants because two elevators that were purchased from Murphy Elevator Company allegedly did not perform properly. The action is based upon alleged negligence, misrepresentations, and breach of warranty. Plaintiff says that Rockwell supplied defective component parts for the two elevators in question.
Plaintiff seeks damages for alleged breaches of Sections 47-2-313, 47-2-314, 47-2-315, T.C.A., and also for breach of Sections 402B and 552D of the Restatement of Torts, 2d. Ed., as well as damages for negligence.
Plaintiff claims that all of the defendants were guilty of negligence in design, manufacture, installation and servicing of the elevators and of the component parts supplied by Rockwell. Plaintiff seeks not only direct damages but also consequential damages.
Murphy denies liability but states that if it is liable that Rockwell should be made to reimburse it for the amount it is required to pay due to a breach of warranty by Rockwell in the furnishing of component parts for the elevators.
Murphy denies that the elevators were improperly designed, improperly manufactured or installed, and denies that they were delivered to Curtis in a defective and unreasonably dangerous condition.
Murphy says that if it breached any warranty plaintiff is not entitled to recover because Murphy disclaimed any warranty except to replace certain parts within one year after the sales contract was consummated and any materials that were defective.
Murphy says further that the action is barred by the four-year statute of limitations contained in T.C.A. § 47-2-725.
Murphy denies that any false statements were made by it or its representatives to plaintiff concerning the elevators.
As an affirmative defense Murphy claims that plaintiff misused the elevators and that such misuse was the proximate cause of the troubles complained of in the complaint.
Murphy also contends that any malfunction of the elevators was caused by the negligence of plaintiff or its tenants or representatives in failing to properly service and maintain the elevators.
Another affirmative defense asserted by Murphy is the assumption of risk of any defects in the elevators. It is difficult for the Court to understand this defense.
Murphy says further that the elevators and the control mechanisms and wiring therein were substantially changed after they were installed and accepted by the plaintiff.
Murphy says further that if the elevators were defective such defects were in the control panel manufactured by Rockwell and that any malfunction in the elevators was caused by the said control mechanism and that if it is liable to plaintiff the cross-defendant who has been sued in a cross-action by Murphy is liable to it for the amount awarded to the original plaintiff.
Rockwell denies any liability to Murphy under the cross-action.
Rockwell International denies liability both on the matters complained of in the complaint and on the matters complained of in the cross-action. Rockwell says no express warranties were made to plaintiff by it. It says further that any component parts of the elevator systems supplied by Rockwell were of merchantable quality; at the time these parts were purchased it had no knowledge of any particular purpose for which the parts were to be used; and that they were not unreasonably dangerous when they left the custody of Rockwell. This defendant says that no misrepresentations of a material character were made by them.
Rockwell says further that it was not guilty of any negligence in the manufacture or design of any component parts used in the elevator systems, strict quality control having been exercised on each part. It says further that plaintiff has not suffered any damage and there has been no depreciation of value in the building owned by plaintiff and in which the elevators are located.
It also states that the plaintiff or its lessee has misused the elevator systems and has failed to properly maintain them.
Rockwell says further that plaintiff or its lessee accepted the elevator systems as installed after approval by the State of Tennessee's inspector and therefore assumed the risk of any defect in the elevator systems.
It says further that the elevators and the control mechanism and wiring therein were substantially changed after installation and acceptance by the plaintiff and that the elevators are presently operating satisfactorily and have been so operating for some time.
Rockwell says further that if a defect exists in the elevator systems, it is in the areas designed, manufactured or installed by Murphy Elevator Co. and not with any component parts manufactured by and sold by this defendant.
The issues as formulated in the pretrial order are as follows:
The Court is of the opinion and finds that the preponderance of the evidence showed that the defendant Murphy breached an implied warranty of merchantability in the sale of these elevators; that said elevators were not suitable for the purpose for which they were to be used and as a direct and proximate result thereof plaintiff sustained damages.
The answer to this question is Yes. In the opinion of the Court, and the Court finds, that Murphy is entitled to recover one-half of the damages assessed against Murphy because Rockwell breached an implied warranty to Murphy when they sold the elevator parts to Murphy.
(6) The defendant Murphy claims that it is entitled to disclaim any liability that allegedly occurred more than one year after the date of contract.
The written contract entered into between Murphy and Curtis contained the following provision:
"All warranties, express, implied and statutory, shall terminate upon final acceptance of the work covered by this contract except that we agree to replace f. o. b. our plant any defective materials not due to ordinary wear and tear or improper use which may develop within one year from date of said final acceptance."
In the opinion of the Court this is not an adequate disclaimer under T.C.A. § 47-2-316.
At the conclusion of the Memorandum delivered from the bench, the parties were advised that the question of the amount of damages would be taken under advisement and that a Supplemental Memorandum would be prepared and filed with the Clerk. Since that time the Court has considered the record in depth and makes the following supplemental findings of fact and conclusions of law:
1. Statutes of Limitation
On May 20, 1971, the Murphy Elevator Company Murphy contracted with Howell C. Curtis to install two elevators in the Arnstein Building, a seven-story office building located in Knoxville, Tennessee. The front or east elevator was accepted by Curtis on December 10, 1971, and the rear or west elevator was accepted by Curtis on June 6, 1972. This action was filed September 12, 1975.
The Tennessee commercial law provides its own statute of limitations, and the period specified therein is applied in cases involving an alleged breach of warranty in a contract for sale. Layman v. Keller Ladders, Inc., 224 Tenn. 396, 455 S.W.2d 594 (1970). The statute of limitations is set out in T.C.A. § 47-2-725 and provides, in pertinent part, as follows:
Thus, actions based on breach of warranty must be brought within four years after tender of delivery is made unless one of the exceptions provided in the statute applies. See McCroskey v. Bryant Air Conditioning Company, 524 S.W.2d 487, 491-92 (Tenn.1975). We must therefore...
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