Ellis v. Orkin Exterminating Co.
| Decision Date | 06 December 1939 |
| Citation | 143 S.W.2d 108,24 Tenn.App. 279 |
| Parties | ELLIS v. ORKIN EXTERMINATING CO. et al. |
| Court | Tennessee Court of Appeals |
Certiorari Denied by Supreme Court June 8, 1940.
Appeal in Error from Circuit Court, Shelby County; H. W. Laughlin Judge.
Action by Winburn H. Ellis, Sr., administrator of the estate of Winburn H. Ellis, Jr., against Orkin Exterminating Company and others, for the alleged wrongful death of plaintiff's intestate. From a judgment sustaining a motion for directed verdict in favor of defendants and dismissing the action plaintiff appeals in error.
Affirmed.
John Galella and Lucius E. Polk, both of Memphis, for plaintiff in error.
McDonald McDonald & Brown, of Memphis, for Orkin Exterminating Co.
Armstrong, McCadden, Allen, Braden & Goodman and Emmett W. Braden, all of Memphis, for New York Life Ins. Co. and Hobson-Kerns Co.
In this case the plaintiff sued the Orkin Exterminating Company, Inc., the Metropolitan Life Insurance Company, and Hobson & Kerns Company for damages for the alleged wrongful death by asphyxiation of his intestate as the result of the negligence of the defendants. The plaintiff's intestate was his seven year old son, Winburn H. Ellis, Jr., who met his death when he entered the house in which he lived at 1057 Cummings Street, in the city of Memphis, after the house had been vacated by all the occupants and turned over to the Orkin Exterminating Company for a period of twenty-four hours, to be fumigated for the extermination of bed bugs and vermin. The negligence charged against the Orkin Exterminating Company is that after having sealed the house by taping, and locking the doors and windows on the inside, it released a quantity of a deadly gas known as hydrocyanic gas throughout the house for the purpose of exterminating the bed bugs and vermin, and left the premises unguarded, and with a rear window unlocked or insecurely fastened, thus making it possible for the plaintiff's son, aged seven years and seven months, to gain entrance to the house by means of said window. The negligence charged against the Metropolitan Life Insurance Company, the owner of the property and the Hobson-Kerns Company, its rental agent, is that they knew of the deadly nature of the gas which was to be used by the Orkin Exterminating Company in fumigating said house, and that they were under the positive duty to see that said house was so locked and guarded while it was being fumigated as to make it impossible for anyone to gain entrance thereto until it was perfectly safe to do so.
The Orkin Exterminating Company demurred to the declaration and the Court overruled its demurrer. Thereupon it filed its general plea of not guilty, and in obedience to an order requiring it to plead all of its defenses specially, it filed its special pleas in which it set out the facts at great length and relied upon the fact that the premises had been vacated by all the occupants thereof and turned over to it for a period of 24 hours to be fumigated; the warnings that it had given of the poisonous nature of the gas it intended to use and the necessity of their remaining away during the 24 hour period; the other precautions it had taken for keeping all persons out; and relied upon the defenses that the boy was a trespasser and not an invitee on the premises; that if it should be held that it was guilty of negligence, its negligence was not the proximate cause of the boy's death, but that his own willful and disobedient act in coming upon the premises and going into the house in violation of the warnings given was the proximate cause of his death; and it relied upon his contributory negligence, and that of his parents, as a bar to any recovery by the plaintiff.
The defendants, Metropolitan Life Insurance Company and Hobson-Kerns, by their pleas relied upon the same defenses that were relied upon by their co-defendant, the Orkin Exterminating Company, and upon the further defense that at the request of the tenant renting the premises they let the contract to Orkin Exterminating Company to rid the premises of bed bugs and vermin; that the Orkin Exterminating Company was engaged in that particular business and were highly skilled in it, and that it had the sole and absolute control of the premises for the purpose of fumigating them, and that these defendants had no control over the work, but that it (the Orkin Exterminating Company) was an independent contractor and performed the work in its own way.
There was a jury trial and at the close of the plaintiff's proof the trial judge sustained a motion for a directed verdict in favor of all the defendants and dismissed the plaintiff's suit. In directing a verdict in favor of the defendants the trial judge did so upon the ground that the plaintiff had failed to show any actionable negligence on the part of the Orkin Exterminating Company, and also upon the ground that the plaintiff and his wife, parents of the child, were guilty of contributory negligence which barred any recovery for his death.
The plaintiff seasonably filed his motion for a new trial, and the same having been overruled, he has appealed in error to this Court. There are four assignments of error, complaining of the action of the Court in granting a directed verdict upon the grounds stated.
The evidence is undisputed, being based entirely upon the evidence of the plaintiff and his witnesses. Taking that view of it most favorable to the plaintiff in error, as we are required to do in reviewing the action of the trial judge in sustaining the motion for a directed verdict, it may be summarized as follows:
The residence known as 1057 Cummings Street in which Winburn H. Ellis, Jr., met his death, is situated on the west side of Cummings Street, and is about 100 feet south of the grammar school known as Cummings School which he attended. He was seven years and seven and a half months of age at the time of his death, and was in the second grade at school.
The residence belonged to the Metropolitan Life Insurance Company, and the Hobson-Kerns Company was its agent in handling the property. On February 21, 1938, Miss Molly Dean, who was employed as switchboard operator at the Methodist Hospital, rented the house from the Hobson-Kerns Company at a monthly rental of $32.50; the house was a six room house having three rooms on each side, with a concrete front porch and a latticed back porch. Miss Dean's family consisted of herself, her mother and her brother, Guy Dean. They had previously lived at 1089 McLemore Avenue, and had occupied that house along with the Ellis family which consisted of Winburn H. Ellis and his wife and their seven year old son, Winburn H. Ellis, Jr. When Miss Dean moved to 1057 Cummings Street, the Ellis family moved with her and occupied the north part of the house while Miss Dean and her mother and brother occupied the south half. The two families divided equally the bills for rent, lights, telephone and other expenses except food. They cooked and ate separately.
When the Deans had been in the house a short time, they discovered that it was infested with bed bugs, so Miss Dean complained to the Hobson-Kerns Company and that company engaged the Orkin Exterminating Company to fumigate the house and rid it of bed bugs and vermin. The Ellis family was notified and agreed to this. On February 28th, Mr. Knox, a representative of the Orkin Company called to see Miss Dean, inspected the premises, measured the rooms, made notations on a paper and took a list of the people occupying the house; Knox then telephoned this information to the office of the Orkin Company, and while he was telephoning his employer he again inquired about the age of the Ellis boy and communicated this to his employer. Mrs. Dean and Mrs. Ellis were both in the house when Knox was there but did not take part in the conversation. Mrs. Ellis was in her part of the house and did not hear it. In this conversation Knox told Miss Dean the name of the gas they would use but she did not know what it meant. He did tell her that it would kill the bugs, and would kill anything that had blood in it; and in answer to her question whether it would kill her, he replied, "Yes, it would kill you". And in this connection he told her that it would require 24 hours to fumigate the house and kill the bugs, and that it would be necessary for everybody to stay away from the house for 24 hours.
On the following day (March 1st), a representative of the Orkin Company telephoned her that their men would be out on the following morning at 9:00 o'clock to fumigate the house, and again told her that it would require 24 hours and that they would have to arrange to stay away from the house for 24 hours while they were fumigating it.
Miss Dean told her mother of this conversation and asked her to notify the Ellis family that the Orkin people would be out the following morning to fumigate the house, and that it would take 24 hours, and that the Ellis family would have to arrange to stay away from the house for the 24 hours. Mrs. Dean delivered the message to the Ellises that evening while they were at supper; she told them that the men were going to use a gas that would kill anything that had blood in it, but did not tell them what kind of gas they were going to use. Mr. Ellis testified that he did not understand that they were going to use a deadly gas but thought that they were going to use a gas that contained sulphur or creosote. We quote from Mrs. Dean's testimony as follows:
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