Evens v. Young

• Decision Date: 11 February 1954
• Citation: 196 Tenn. 118,264 S.W.2d 577,32 Beeler 118
• Parties: EVENS v. YOUNG et al. 32 Beeler 118, 196 Tenn. 118, 264 S.W.2d 577
• Court: Tennessee Supreme Court

Page 577

264 S.W.2d 577

EVENS v. YOUNG et al.

32 Beeler 118, 196 Tenn. 118, 264 S.W.2d 577

Supreme Court of Tennessee.

Feb. 11, 1954.

DeWitt, Warner & Bell, Nashville, for plaintiffs in error.

J. G. Lackey and T. I. Holman, Jr., Nashville, for defendant, Walter C. young.

Cate & Cate, Nashville, for defendant, Central Equipment & Supply Co.

Bailey, Ewing & Powell, Nashville, for defendant, Nashville Gas Co.

GAILOR, Justice.

This appeal presents three cases consolidated and heard together in the Circuit Court of Davidson County: (1) John R. Evens v. Walter C. Young, The Nashville Gas Company, and the Central Equipment and Supply Company; (2) Mrs. John R. Evens v. the same Defendants, and (3) John R. Evens and wife v. the same Defendants. The basis of all three actions is the alleged negligence of the Defendants, and the facts upon which such negligence is predicated, are identical in all three cases, and identically stated in the three declarations filed. The cases differ only in the parties Plaintiff, and the subject of damages.

All three declarations allege that the Plaintiffs, on or about April 2, 1949, purchased a dwelling house and lot from the Defendant, Walter C. Young; that Young was architect, contractor, and vendor of said dwelling house; that the original specifications for said house called for an electric water heater to be installed in a small closet beneath a stairway, but that Young substituted a gas water heater in the same space; that the gas water heater was purchased by Young from the Defendant, the Central Equipment and Supply Company, and that said Company installed the heater in the closet; that the Central Equipment and Supply Company notified the Nashville Gas Company that its installation had been made; that the Gas Company made an inspection and connected the gas system of the house with its regular lines, and after such inspection, lighted the pilot light of the gas heater.

After plaintiffs bought and moved into the house they found that the water heater was powered by gas, but did not realize that there was any danger from such installation; that from April 1949, until January 1952, Plaintiffs used very little hot water; that on January 4, 1952, they had hired a washer-woman to do the family laundry, and that this greatly increased the load placed on the water heater for heating water necessary for washing; and that after the load was so increased on said water heater, than an explosion and fire occurred in the closet space where the heater was located; that said explosion was caused by the accumulation of gas in that space as a result of improper and incomplete combustion, which in turn, was caused by a lack of oxygen in the enclosed space where said heater was located.

The declarations allege that each of the Defendants knew, or should have known, of the dangerous qualities of gas when not afforded proper combustion; that the Defendant, Walter Young, who drew the plans and supervised the construction of the house, knew, or should have known, that the closet space did not have an adequate supply of oxygen; and that his substitution of a gas heater for an electric heater, was a negligent act, and that his negligence was a proximate and contributing cause of damages suffered by the Plaintiffs.

The declarations allege that the Defendant, the Central Equipment and Supply Company, prior to installing its gas heater, observed both the specifications and the house as actually constructed, and knew, or should have known, that the closet space wherein the heater was to be installed, did not have an adequate supply of oxygen; and that this Defendant, by the exercise of ordinary care, knew, or should have known, that the installation of a gas water heater in the closet would create a hazardous condition which would endanger the lives and property of the occupants of the house; and that said Defendant owed the occupants a duty to refrain from creating such a hazardous condition; and that the act of this Defendant in installing the gas heater, was a negligent act, and that its negligence was a proximate and contributing cause of the damages suffered by the plaintiffs.

The declarations allege that the Defendant, The Nashville Gas Company, after making an inspection of the house, knew, or by the exercise of ordinary care, should have known, that the closet space wherein the heater was to be installed, did not have an adequate supply of oxygen; and that this Defendant, by the exercise of ordinary care, knew, or should have known, that the installation of a gas water heater in the closet would create a hazardous condition which would endanger the lives and property of the occupants of the house; and that said Defendant owed the occupants a duty to refrain from creating such a hazardous condition; and that the act of this Defendant in installing the gas heater, was a negligent act, and that its negligence was a proximate and contributing cause of the damages suffered by the Plaintiffs.

The declarations allege that the Defendant, The Nashville Gas Company, after making an inspection of the house, knew, or by the exercise of ordinary care, should have known, that the space wherein the water heater was installed, had an insufficient supply of oxygen; that in spite of this knowledge, the Defendant Gas Company connected the pipes of the house with its regular gas line and supplied gas under a contract; that on several occasions, agents of the Gas Company made service calls and became acquainted with the dangerous condition; that at no time, did the Defendant warn the Plaintiffs of the danger rising from the location of the water heater; and that the acts of the Gas Company in supplying Plaintiffs' house with gas with full knowledge of the dangerous installation, and in failing to inform Plaintiffs of the danger, were negligent acts, and that such negligent acts were a proximate and contributing cause of the damages suffered by the Plaintiffs.

The three declarations differ only as to the nature of the damages sought to be recovered. John Evens seeks to recover damages for several items of personal property owned by him and destroyed by the fire following the explosion; Mrs. Evens seeks to recover for loss of several items of personal property belonging to her and so destroyed; and the Plaintiffs jointly sue to recover damages to the house which they own as tenants by the entirety.

To each of the declarations, each of the Defendants filed a separate demurrer, nine in all, and these demurrers being sustained by the Trial Judge, the Plaintiffs have perfected this appeal.

In our consideration of this interesting case, the Court has been greatly aided by the able, relevant and carefully prepared briefs filed by the Plaintiffs and all three of the Defendants.

We will first consider the propriety of the action of the Trial Judge in sustaining the demurrer of the Defendant, Walter C. Young. The grounds of that demurrer were that (1) as builder and vendor, Young owed no duty to the Plaintiffs to exercise due care for their safety in the construction of the house sold them, (2) that as builder, and vendor, he owed no duty to Plaintiffs to inform them of any known defects or hazards in the house at the time of the sale, and (3) that all of the acts of negligence with which he is charged in the declarations occurred while he, himself, owned the house, and prior to the time that the house was sold to the Plaintiffs.

The question of Young's liability is conclusively determined by the rules of Tennessee law laid down in the case of Smith v. Tucker, 151 Tenn. 347, 270 S.W. 66, 41 A.L.R. 830. That case was one of first impression, not only in this jurisdiction, but also throughout the United States. Since the delivery of the opinion, it has been frequently cited and followed.

In the Tucker case, Plaintiff had purchased a home in Memphis, from the Defendant, the builder, who had employed certain contractors and sub-contractors as Young had done in the present case. Plaintiffs moved into the property about November 1, 1920, taking a warranty deed. The house was new, and the construction had just been completed. After the property had been occupied a week or two, it was found that the mantle was in an unsafe condition, and the vendor was notified of that fact, and undertook to repair the mantle. After the attempted repair, the vendor reassured the vendees that the premises were safe, and that the mantle had been repaired. Very shortly after that assurance, the mantle, a heavy stone slab, fell on Plaintiff's two-and-one-half-year-old child, killing him.

In the Trial Court, at the end of Plaintiff's proof, a motion for peremptory instruction was sustained; the Court of Civil Appeals affirmed. Although this Court found (opinion 151 Tenn. at page 358, 270 S.W. 66) that there is no doubt as to the negligent and improper construction of the mantle, this Court, nevertheless, considered that the rule of caveat emptor applied to this sale of real estate; that the vendor was not required to disclose dangerous conditions of the premises to the vendee; and was not liable to the vendee for injuries sustained on account of the fall of the defective mantle.

From the opinion in the Tucker case, we infer that the statements and allegations of negligence in the declaration in that case were similar, if not identical, with the allegations of negligence in the present case, and the relation of the parties were identical.

The Plaintiff in the Tucker case, undertook to invoke the rules of liability applicable to the relation of landlord and tenant as they have been laid down by this Court in the 'Willcox cases,' Stenberg v. Willcox, 96 Tenn. 163, 33 S.W. 917, 34 L.R.A. 615, and Willcox v. Hines, 100 Tenn. 524, 45 S.W. 781. This effect was unsuccessful and this Court rejected the attempt to apply the rule of liability of landlord and tenant, and refused to apply it to the relation of vendor and purchaser of...