Hendrix v. City of Maryville
| Citation | 58 Tenn.App. 457,431 S.W.2d 292 |
| Parties | James HENDRIX, Appellant, v. CITY OF MARYVILLE et al., Appellees. |
| Decision Date | 29 March 1968 |
| Court | Court of Appeals of Tennessee |
Rom Meares, Jr., Maryville, for appellant.
Roy D. Crawford, Goddard & Gamble, Maryville, for appellees.
The first thing to be considered in this case is appellees' motion to dismiss the appeal on the grounds appellant's motion for new trial was not timely filed.
The record reveals that on February 28, 1967, the final judgment was entered and included the following language: 'To all of which action by the Court the Plaintiff excepts and is allowed forty-five (45) days to file his motion for a new trial.' Plaintiff's written motion was not filed until April 12, 1967, forty-three days after entry of the judgment. The defendants asked the trial judge to strike the motion for new trial for the reason that it was not timely filed. This motion was overruled.
T.C.A. § 27--201, governing the time for filing motions for new trial reads as follows:
In the instant case the record does not show that there is a local court rule shortening the time as provided by the statute. Thus it must be assumed the thirty day period of the statute is applicable.
In Owens v. State, 217 Tenn. 544, 399 S.W.2d 507, 509, the judgment of the trial court contained the following language: 'Thereupon the defendant by his attorney gave notice of motion for a new trial.' The written motion was not filed until fifty-one days after the entry of this judgment. There was a motion filed to dismiss the appeal because the motion for new trial was not timely filed within the time allowed by the statute. The Supreme Court, in overruling this motion, stated:
'* * * the defendant has ordinarily thirty (30) days from the entry of a verdict or judgment to file a motion for a new trial, subject to time modifications by the rules of the trial court. T.C.A. § 27--201. If the judgment is entered some time subsequent to the entry of the verdict (i.e., not on the same day, but on a subsequent day), the defendant has thirty (30) days after the entry of the judgment to move for a new trial. Neely v. State, 210 Tenn. 52, 356 S.W.2d 401 (1962). Also, unless the rules of the trial court state otherwise, the motion for a new trial, to be seasonably made, does not have to be in writing and does not have to state the reasons or grounds for the motion. Shettles v. State, 209 Tenn. 157, 352 S.W.2d 1 (1961). The Shettles case also holds that this Court cannot consider trial court rules unless they are proved on the trial below and are incorporated in the bill of exceptions.
'In Shettles, the oral language used in the 'motion' for a new trial was (as evidenced by the minutes of the court):
"Thereupon the defendant, through her counsel of record, moves the Court for a new trial herein, which motion is set for hearing on August 2, 1960.'
Under the holding of the Owens case, we think it can be reasonably inferred that a motion for new trial was seasonably made.
Considering now the case on its merits, the parties will be referred to as they appeared in the trial court; that is, James Hendrix as plaintiff and City of Maryville, City of Alcoa and Blount County as defendants.
The plaintiff brought suit on March 8, 1966, alleging that the defendants were operating a garbage dump or sanitary fill adjacent to his leasehold estate in a manner which constituted a nuisance. The plaintiff further alleged that he had suffered both personal injuries and property damage as a result of this operation.
All of the defendants, pleading specially, deny the operation constituted a nuisance, averred that the operation was a governmental function and contended that the plaintiff had suffered no damages. The defendants, City of Alcoa and Blount County, further pleaded that in the operation of the sanitary fill, the City of Maryville was an independent contractor for whose acts they were not liable.
At the conclusion of the plaintiff's proof all the defendants made motions for directed verdicts. From the trial judge's order sustaining these motions and overruling plaintiff's motion for new trial on substantive grounds, plaintiff has appealed.
Plaintiff's proof shows he leased a tract of property in April 1961 upon which he built a residence and a golf course which was completed in late 1963. In May 1964, on property adjacent and within 75 to 100 feet of plaintiff's residence, the defendants established a garbage dump or sanitary fill.
There can be little question about this disposal site interfering with plaintiff's emjoyment and use of his leasehold. The undisputed evidence shows there was emitted from the site smoke, obnoxious odors and other fumes to such an extent that it was necessary for plaintiff to keep the windows of his home closed. Plaintiff his wife and other witnesses who live near the golf course and plaintiff's residence, testified that on occasions dogs would drag bones and other matter from the dump and leave them strewn on plaintiff's property. One witness who played golf on the course testified that the acrid odor was so unpleasant that it affected his golf game. In the record is a picture which shows one of the golf greens strewn with paper which apparently came from the disposal site.
The circuit judge, in his comments when he sustained the motions for directed verdict which will hereinafter be discussed, made the following finding: 'In this case the court thinks there can be no question that the City of Maryville did, in fact, create and operate a nuisance under the facts shown in the proof.' We agree with this statement.
In sustaining the motion for directed verdict as to Blount County, the trial judge gave as one of his reasons that the County, as an arm of the state government, was not subject to a suit for damages for maintaining a nuisance when it was acting within its governmental capacity. Under the authority of Buckholtz v. Hamilton County, 180 Tenn. 263, 174 S.W.2d 455, we think the circuit judge's ruling was proper and his action in sustaining the motion for directed verdict as to Blount County is affirmed. See also Odil v. Maury County, 175 Tenn. 550, 136 S.W.2d 500; Jones v. Knox County, 205 Tenn. 561, 327 S.W.2d 473.
In sustaining the City of Alcoa's motion for directed verdict, the trial judge reasoned that by the terms of a contract entered into by the defendants it was shown that the City of Maryville was an independent contractor in conclusive control of the operation of the disposal site. Thus the City of Alcoa could not be liable for damages resulting from the negligent operation of the disposal site.
In the record is a contract between the City of Maryville, City of Alcoa and Blount County for the operation of this garbage disposal system. The contract states 'the parties hereto recognize that there is a great need on the part of their citizens for a program and/or system for the handling and disposal of garbage and similar wastes.' The contract further provides that '* * * (City of Alcoa) and (Blount County) are desirous and willing to Operate a garbage disposal system in conjunction with the * * * (City of Maryville) in accordance with the terms and conditions hereinafter set forth.' It is also agreed the 'disposal site will be available' to all parties.
As to the management and operation, it provides as follows:
'It is agreed that the party of the first part (City of Maryville) will be in charge of the operation of the garbage disposal site and be primarily responsible for its efficient operation and supervision.
* * *
* * *
'It is agreed that the party of the first part will maintain personnel on the garbage disposal site premises six (6) days per week (Monday through Saturday), the working hours to be determined by the party of the first part.
'The party of the first part agrees to operate said garbage disposal site in a sanitary and on a systematic basis, covering the deposited garbage at least once a day, exclusive of Sundays and holidays * * *.'
It is well established that one asserting the existence of an independent contractor in an effort to avoid liability must carry the burden of proof. Tennessee Valley Appliance v. Rowden, 24...
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