Haga v. Blanc & West Lumber Co., Inc.

• Decision Date: 05 March 1984
• Citation: 666 S.W.2d 61
• Court: Tennessee Supreme Court
• Parties: D. Clyde HAGA, Plaintiff-Appellant, v. BLANC & WEST LUMBER COMPANY, INC., and Adrian Blanc, Defendants-Appellees. 666 S.W.2d 61

Page 61

666 S.W.2d 61

D. Clyde HAGA, Plaintiff-Appellant, v. BLANC & WEST LUMBER COMPANY, INC., and Adrian Blanc Defendants-Appellees.

666 S.W.2d 61

Supreme Court of Tennessee at Knoxville.

March 5, 1984.

C. Douglas Berryhill, Jefferson City, for plaintiff-appellant.

Douglas Dutton, Knoxville, for defendants-appellees; Hodges, Doughty & Carson, Knoxville, of counsel.

OPINION

BROCK, Justice.

This is an action to recover damages for personal injuries suffered by the plaintiff when he fell from a stack of lumber on the business premises of the defendants. The jury returned a verdict for $30,000.00 in favor of the plaintiff and against both defendants which was approved by the trial judge. On appeal to the Court of Appeals, that court in a two-to-one decision, Judge Franks dissenting, reversed the judgment in favor of the plaintiff and directed a verdict for the defendants. We granted discretionary review.

The plaintiff is engaged in the business of constructing residential housing in Jefferson County and on Saturday morning, March 1, 1980, the plaintiff went to defendant Blanc and West Lumber Company in Jefferson City, Tennessee, to purchase two boards, 2" X 10", 14' in length, for which he had an immediate need in his construction business. After placing his order for this lumber in the sales office of the defendant corporation and after making payment for it, he drove his truck, accompanied by Adrian Blanc, a lumber company employee, to the lumber shed a short distance away.

Plaintiff testified that Mr. Blanc measured the lumber and told him that he would have to get his boards off a certain designated stack. The lumber under the shed was stacked in rows, end to end, with spaces between the stacks. The stacks consisted of bundles of a number of boards strapped together. The strapped bundles were stacked, one on top of the other, from the ground or floor up several feet in height.

The plaintiff testified that Mr. Blanc did not make any effort to get the purchased lumber down from the stack nor offer the assistance of another employee, that he, the plaintiff, climbed between two adjacent stacks of lumber to a position where he could reach the purchased boards and proceeded to throw them off the stack onto the ground. Defendant Blanc picked the lumber off the ground and placed it in the plaintiff's truck.

The plaintiff explained that the bands on both the stack from which he had removed the lumber and the adjoining stack were broken and that as he began to descend from the stacks, the boards began to slide, causing him to lose his balance and to fall backwards to the ground receiving serious and disabling back injuries. He stated that if either bundle had been secured he would have been able to maintain his balance and would not have fallen. He further stated that he first noticed that the lumber on the adjoining stack was loose after he had climbed to the top, his attention theretofore having been directed to the stack from which the boards he was purchasing were located.

Mr. Blanc testified that it was dangerous to have persons climbing on loose lumber; that customers did load their own purchases, occasionally, but that it was a practice the company did not deem to be safe but, nevertheless, had not attempted to prohibit or discourage. Normally, bundles of lumber were brought down to the ground with a fork lift prior to the bindings being cut so that no climbing to obtain individual boards would be required. However, the unbound lumber in the instant case was left stacked in order to keep it under the protection of the shed and out of the elements.

Mr. Blanc further testified that he had prior knowledge that the bindings on most of the top bundles under the shed were broken and that he knew prior to the plaintiff's climb on this occasion that the bindings on both the stacks used by the plaintiff to support himself had been broken. However, Mr. Blanc did not warn the plaintiff nor offer any assistance to him.

In his complaint, the plaintiff alleged that the defendants were negligent in removing the bands from the stacks of lumber from which he fell and that the defendant Blanc failed to warn the plaintiff of this condition of the stacks. The defendants denied liability and asserted the defenses of contributory negligence and assumption of risk.

For a restatement of the rule by which we are governed in conducting our review in this case we quote from Crabtree Masonry Co. v. C & R Const., Inc., Tenn., 575 S.W.2d 4 (1978), as follows:

"It is the time honored rule in this State that in reviewing a judgment based upon a jury verdict the appellate courts are not at liberty to weigh the evidence or to decide where the preponderance lies, but are limited to determining whether there is material evidence to support the verdict; and in determining whether there is material evidence to support the verdict, the appellate court is required to take the strongest legitimate view of all the evidence in favor of the verdict, to assume the truth of all that tends to support it, allowing all reasonable inferences to sustain the verdict, and to discard all to the contrary. Having thus examined the record, if there be any material evidence to support the verdict, it must be affirmed; if it were otherwise, the parties would be deprived of their constitutional right to trial by jury." (Citations omitted.) 575 S.W.2d at 5.

Although acknowledging the existence of the rule just stated, the majority of the Court of Appeals, nevertheless, proceeded to re-evaluate the evidence and reach a conclusion contrary to that of the jury and the trial judge respecting the issues of assumption of risk and contributory negligence. Judge Franks, however, dissented and filed a dissenting opinion, the greater portion of which we adopt as our own, to-wit:

"When the evidence is evaluated in the context required of appellate courts, the evidence which the majority considers the basis of its conclusion is neither considered in its strongest legitimate view in favor of the jury verdict nor is the contrary evidence discarded.

* * * "The plaintiff was also asked on cross-examination:

"Q. Was there any hidden danger in that pile of lumber that caused you to fall that day?

"A. Well, I didn't recognize the fact, the hidden danger would be the fact the bands were broken on both of those top piles of lumber, on the left and right. Had they not been broken where I put the right hand I would probably have been able to secure myself. Both piles of lumber slipped with me.

"Q. Did you see the stack of lumber on your right?

"A. I saw the stack of lumber but I did not realize that the bands were broken at that time.

"Q. When did you realize that?

"A. When I got up there and ... when I got up as I said, stated before, I could not get my body any higher than maybe my shoulders and when I turned around and took these three off and turned back around and laid my hand on this one I realized it was broken and I started slipping, I guess.

* * *

"Significantly, the jury returned a verdict against both the individual Blanc and the corporation. Blanc testified the defendants discouraged customers from obtaining their own materials and that he observed the bands on both stacks of lumber were loose prior to plaintiff's climbing the stacks but he gave plaintiff no warning. Blanc testified:

"Q. After you got out there you...