Gibson Lumber Co. v. Neely Coble Co., Inc.
| Decision Date | 28 January 1983 |
| Citation | 651 S.W.2d 232 |
| Parties | GIBSON LUMBER COMPANY, Plaintiff-Appellant, v. NEELY COBLE COMPANY, INC., Mack Trucks, Inc., and Leon B. Batson, Deputy Sheriff for Davidson County, Tennessee, Defendants-Appellees. 651 S.W.2d 232 |
| Court | Tennessee Court of Appeals |
Fyke Farmer, Nashville, for plaintiff-appellant.
Daniel R. Loftus, William D. Leader, Jr., Nashville, for Neely Coble Co., Inc.
J. Greer Cummings, Jr., Nashville, for Mack Trucks, Inc.
In this case Gibson Lumber Company filed suit in the Chancery Court of Davidson County against Neely Coble Company, Inc., and Mack Trucks, Inc. The Sheriff of said county was also joined as a defendant but has since been dismissed and is of no further concern to the issues on appeal. Both Neely Coble and Mack were also dismissed but their dismissals are the subject of this appeal by the plaintiff Gibson. Neely Coble was dismissed on the grounds of res judicata. Mack Truck was dismissed on the grounds that any liability they might suffer was vicarious to that of Neely Coble and since Neely Coble had been previously absolved of negligence in a prior proceeding, no liability could fall on Mack Truck.
The present suit alleges that the plaintiff was damaged by the negligent repair of its truck in August of 1978. It was alleged that when the defendants made repairs in August of 1978 "the Diesel Engine in the truck involved in this controversy had some inherent structural defects which facts had been concealed from it by both the defendants Neely Coble Company and Mack Trucks, Inc."
We believe that a proper understanding of the damages sought in this case requires some discussion of a prior suit before we state the nature of the damages here sought. We have only the pleadings in this case before us, but attached to those pleadings when filed were pleadings from the prior case. The statements in this present complaint and the prior pleadings show that Gibson purchased a Mack Truck from Mack in 1972. The truck experienced numerous engine related failures. The engine was overhauled several times by Neely Coble; some of the work being paid for by Mack and some by Gibson. In October 1977 the engine was again overhauled and paid for by Gibson. In February 1978 it again failed. In August 1978 the crankshaft failed and Mack paid for its replacement with the work being again performed by Neely Coble. In March 1979 the engine again failed and it was returned to Neely Coble for repairs. Neither Mack nor Gibson would pay for the repairs which amounted to $5,205.11 and Neely Coble therefore would not release the truck. Gibson filed a possessory action against Neely Coble only. Neely Coble counter-claimed for $5,205.11. The Trial Court in the first suit found against Gibson and ruled that Gibson had failed to prove that the defendant negligently repaired the truck. The matter was appealed to the Court of Appeals which affirmed the action of the Trial Judge. Subsequently, the Supreme Court denied permission to appeal. The prior suit will be referred to as such or by its Trial Number of C-1954.
During the pendency of the prior case this case was filed by Gibson against both Neely Coble and Mack Truck and the damages sought herein against both defendants are (a) a judgment against both for the amount required to satisfy the judgment in favor of Neely Coble against Gibson in case Number C-1954 and (b) "That plaintiff have and recover of the defendants Neely Coble Company and Mack Trucks, Inc. a judgment for the loss, damages and expenses including attorney's fees and expenses incurred and suffered by plaintiff on account of their negligent acts and/or breach of contracts, express or implied, with the plaintiff arising from the defective condition or basic flaws of the engine of the truck involved in this controversy and/or their negligent failure to remedy any such defects or flaws."
It is apparent from the pleadings in the instant case that plaintiff does not dispute the necessity of or the workmanlike manner in which the March 1979 repairs were made or the amount thereof represented by the judgment in Neely Coble's favor in case Number C-1954. The gravamen of this complaint is the alleged concealment of the defendants of basic engine defects which were or became known to both defendants as a result of the August 1978 repair. It is alleged in the present case that the guilty knowledge and concealment of the defendants regarding the August 1978 repair did not become known to plaintiff until the proof was being taken in case Number C-1954.
As to the defendant Neely Coble, we believe the plea of res judicata to be an absolute bar to plaintiff's suit against it. Application of the doctrine of res judicata bars a second suit between the same parties and their privies on the same cause of action as to all issues which were or could...
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