D. M. Rose & Co. v. Snyder

• Decision Date: 29 November 1947
• Citation: 206 S.W.2d 897,185 Tenn. 499
• Parties: D. M. ROSE & CO. v. SNYDER.
• Court: Tennessee Supreme Court

206 S.W.2d 897

185 Tenn. 499

D. M. ROSE & CO. v. SNYDER.

Supreme Court of Tennessee.

November 29, 1947

Error to Circuit Court, Knox County; John M. Kelly, Judge.

Action by Boyd Snyder against D. M. Rose & Co., to recover for injuries sustained by plaintiff in course of his employment by defendant allegedly as result of defendant's negligence. From a judgment for plaintiff, the defendant appeals to the Court of Appeals. The Court of Appeals affirmed the trial court's judgment, and the defendant brings certiorari.

Judgment affirmed.

Donaldson, Montgomery & Kennerly, of Knoxville for plaintiff in error.

Joe C Thomason and Frank L. Flynn, both of Knoxville, for defendant in error.

PER CURIAM.

On the allegation that a relation of master and servant existed between plaintiff, Snyder, and defendant, D. M. Rose and Company, Snyder sued the Company for injuries received in the course of his employment and proximately caused by the Company's negligence. On the fourth trial of the case in the Circuit Court of Knox County, plaintiff secured a judgment for $20,000 against D. M. Rose and Company. After motion for new trial was overruled and the judgment approved by the Trial Judge, defendant appealed to the Court of Appeals. That Court sitting en banc, with nine Judges participating, heard the appeal and unanimously approved a clear, careful and complete opinion by Judge Felts in which all assignments of error were considered separately and overruled, and the judgment affirmed.

We granted certiorari, have heard argument and carefully considered the very comprehensive briefs and supplemental briefs filed by both parties. No question of fact or law which was not presented to the Court of Appeals, is presented to us, except a minor matter which arose in the course of the argument before us and which we consider below.

In presenting his assignments of error in support of his petition for certiorari, the petitioner, D. M. Rose and Company, frankly admits that the petition contains only reassignment of errors already presented to the Court of Appeals, and says: 'The Defendant herein made the following assignments of error in the Court of Appeals to the action of the Circuit Court * * *. To save repetition in subsequent assignments of error, assignments of error in the Court of Appeals which are to be relied on here will just be recopied, inasmuch as the Court of Appeals overruled all of our assignments of error and it will be understood that we are assigning as error the action of the Court of Appeals in so doing.'

Much that was said by this Court in the course of the opinion in Mayor and City Council of Nashville v. Patton, 125 Tenn. 361, 370, 143 S.W. 1131, is apposite to the present petition.

Our conclusion, after hearing argument and studying the record is that the Court of Appeals has fully answered all the questions presented and correctly decided the case. To rewrite the opinion on the same assignments would serve no useful purpose and we, therefore, adopt the opinion of the Court of Appeals as the opinion of this Court. Boillin-Harrison Co. v. Lewis & Co., 182 Tenn. 342, 345 187 S.W.2d 17.

'Boyd Snyder brought this common law action against D. M. Rose & Company, as his employer not operating under the Workmen's Compensation Act, [Code, § 6851 et seq.], to recover $50,000 damages for personal injuries suffered by him when an excavation, being made for a house to be erected, caved in and fell upon him.

'The cause of action alleged was that D. M. Rose & Company, a corporation, was making the excavation and constructing the house, and owed him a duty to use reasonable care to furnish him a safe place to work; and that, in several particulars set out, it breached this duty and was guilty of negligence which caused him serious and permanent injuries described.

'He obtained an order requiring defendant to plead specially its defense (Code sec. 8767); and in addition to the general issue, it pleaded that while it had more than five employees at its plant, several miles from the scene of the accident, and was not operating under the Workmen's Compensation Law, it had no employee at the scene, was not constructing the house, was only furnishing materials to the contractor doing the construction, and did not employ the subcontractor making the excavation or have any control or right of control over him or his employees.

'The accident happened April 25, 1940, and there have been four trials. The first resulted in plaintiff's taking a nonsuit and bringing the present suit. On the second trial a verdict was directed for defendant at the close of plaintiff's evidence. Upon his appeal in error to this Court, the Western Division, in an opinion by Judge Baptist January 27, 1943, unreported, held plaintiff's evidence made a case for the jury, reversed the judgment of dismissal, and remanded the case for a new trial, certiorari being denied. After the remand defendant was allowed to add another special plea that if it employed plaintiff such employment was 'casual and not in the usual course of trade, business, profession or occupation of the employer as set out in Code Section 6856, subsection (b).' Upon the third trial the jury could not agree and there was a mistrial. The fourth and last trial resulted in a verdict and judgment for plaintiff for $20,000.

'From that judgment defendant prosecuted this appeal in error, and has assigned numerous errors, insisting that a verdict should have been directed for it, or in any event it should have been granted a new trial for errors in instructions given, in requested instructions refused, and in other matters set out.

'The grounds urged for a directed verdict are (1) that there was no evidence of any relation of employer and employee between plaintiff and defendant; (2) that there was no evidence that it was guilty of any negligence which proximately caused his injuries; (3) that the evidence showed without dispute that if defendant employed plaintiff such employment was 'casual' and his action was barred by his assumption of the risk and the fellow-servant rule; and (4) that he was also barred by judicial estoppel because his testimony on the last trial was contrary to what he had sworn on the first one.

'Grounds (1) and (2) were decided against defendant on the former appeal. It, however, contends that those rulings are not now the law of the case because the evidence was different on the last trial; that on the former appeal there was no evidence except plaintiff's while on this appeal there is also the evidence adduced by defendant; and that this evidence removed the basis of the former rulings and entitled defendant to a directed verdict on the grounds stated.

'While these issues involve a review of the evidence, such review is not to determine where the truth lies or to find the facts, that not being our province in jury cases. It is only to determine whether there was any substantial evidence to support the verdict; and it must be governed by the rule, safeguarding the constitutional right of trial by jury, which requires us to take the strongest legitimate view of all the evidence to uphold the verdict, to assume the truth of all that tends to support it, to discard all to the contrary, and to allow all reasonable inferences to sustain the verdict. Johnston v. Cincinnati N. O. & T. P. R. Co., 146 Tenn. 135, 149, 240 S.W. 429; Finchem v. Oman, 18 Tenn.App. 40, 49, 50, 72 S.W.2d 564, 570.

'Upon such review it appears that D. M. Rose & Company, a corporation, had a sawmill and plant in Knoxville where it was manufacturing and selling lumber and other wood products. Its witnesses said this was its only business, but many circumstances were proved to indicate that it did more than merely furnish materials to others and was itself engaged in the business of constructing houses and was constructing the one here involved.

'Its charter stated one of its corporate purposes was 'building houses' and, while it had not obtained a contractor's privilege license, it was shown to have bought several vacant lots and built houses thereon for sale. It kept a number of carpenters and workmen engaged in the building of houses, and kept in its regular employ an architect to draw plans and specifications for the construction of houses. Its salesman would call on prospective home-owners, show them these plans and specifications, and solicit them to enter into contracts for the construction of houses; and this architect would supervise the construction of the houses to see that it complied with the plans and specifications and met the requirements of the F. H. A. and other lending agencies financing the construction. It had a mimeographed form of construction contract and other forms of applications for loan commitments, releases of liens, etc., which it regularly used in its business.

'The owner of this house for whom it was being constructed was Max Wolf, a business man in Knoxville. He was not called as a witness but other evidence, largely the cross-examination of defendant's witnesses, brought out many of the circumstances as to the making and carrying out of the contract for the construction of this house. During January and February 1940, Walter Johnson, defendant's salesman, went to see Max Wolf and wife several times to solicit them to make a contract for the construction of the house. He showed them defendant's plans and specifications and after conferences with them he and defendant's architect finally worked out such changes in the plans and specifications as were satisfactory to Mr. & Mrs. Wolf. Johnson agreed with them upon the terms of the contract, and defendant proceeded with it, though it was not formally signed until later.

'On March 11, 1940, defendant...