Hester v. Hubbuch

• Citation: 170 S.W.2d 922,26 Tenn.App. 246
• Decision Date: 27 November 1942
• Docket Number: 14.
• Parties: HESTER v. HUBBUCH et al. (two cases).
• Court: Tennessee Court of Appeals

170 S.W.2d 922

26 Tenn.App. 246

HESTER v. HUBBUCH et al. (two cases).

No. 14.

Court of Appeals of Tennessee, Eastern Section.

November 27, 1942

Certiorari Denied by Supreme Court April 3, 1943.

Appeals in Error from Circuit Court, Hamilton County; Fred B Ballard, Judge.

Action by Margaret Hester for personal injuries, and action by A. C Hester for medical expenses and loss of services of Margaret Hester, his wife, against Otto J. Hubbuch, doing business as Hubbuch Glass Company, Clifford Simmons, doing business as Clover Leaf Drug Company, and C. A. Noone. The jury found in favor of defendant Hubbuch and against defendants Simmons and Noone. From an order denying plaintiffs' motions for new trial as to defendant Hubbuch, and from an order granting defendant Noone's motion for new trial and dismissing the action as to him, the plaintiffs appeal in the nature of a writ of error, and from a judgment for the plaintiffs defendant Simmons appeals in the nature of a writ of error.

Affirmed.

Harry Berke, M. A. Fleming, Jr., and W. R. Ferguson, all of Chattanooga, for plaintiffs.

Strang, Fletcher & Carriger, of Chattanooga, for defendant Hubbuch.

Sam J. McAllester, of Chattanooga, for defendant Noone.

Finlay & Campbell, of Chattanooga, for defendant Simmons.

HALE Judge.

In an effort to make a clear statement of the case, we shall refer to the parties as they appeared in the court below.

Suit was brought by the plaintiff Margaret Hester to recover for personal injuries sustained by her. A separate suit was brought by her husband, A. C. Hester, for medical expenses and loss of her services. The injuries complained of were caused by a piece of vitrolite or structural glass falling from a store front and striking Margaret Hester, who was passing along the street.

The suits are against Otto J. Hubbuch, doing business as the Hubbuch Glass Company, the sub-contractor installing the glass store front; against Clifford Simmons, doing business as Clover Leaf Drug Company, the tenant; and against C. A. Noone, the owner of the building.

The cases were heard together. All of the defendants moved for a directed verdict. This motion was overruled and the case submitted to the jury, which found in favor of the defendant Hubbuch, but gave judgment against Noone and Simmons (the owner and tenant respectively) in favor of Margaret Hester for three thousand dollars and her husband for seven hundred and fifty dollars.

Plaintiffs moved for a new trial in each case as to the defendant Hubbuch. These motions were overruled. The defendant Noone moved for a new trial in each case, which were granted and his motions for a directed verdict sustained and the suit dismissed as to him. Simmons moved for a new trial in each case, which were overruled. Plaintiffs then moved for a new trial so far as the court's action as to Noone was concerned. These were overruled. Appeals in the nature of a writ of error were prayed and perfected by the plaintiffs and by the defendant Simmons.

A chronological statement of the case will aid in understanding the issues.

In March, 1936, Noone, the owner, leased this property to Bradley & Bandy for use as a retail drug store. The lease was for five years from April 1, 1936. The rent charge was based on a percentage of sales, with a minimum annual guarantee. The lessees were to make certain repairs, including a new store front, and the cost thereof, up to a specified maximum, was to be deducted from the rentals. The lease also provided that, with the exception of the roof and some other contingent repairs, "all other maintenance of the building shall be borne by the lessees."

In this lease it was further stipulated:

"(1) Lessees agree to take good care of the premises, and return the same at the expiration of said time in as good condition as received, ordinary wear and tear and natural decay excepted, unless destroyed by lightning or other natural cause, or fire not caused by their default; and not to erect, or permit to be erected on the premises, any nuisance, or commit any waste. (2) The lessees covenant to keep all glass, and all plumbing, water and gas pipes, and the premises generally in as good repair as when received, at their own expense, during the term of this lease ***. (5) Lessees agree to hold and save harmless the lessor against any and all claims, suits or judgments for damage or injury to persons or property caused by or arising out of any cause or condition in connection with the leased premises during the term of the lease, except such damage or injury as may be caused by failure of the owner of the building after being informed in writing of the need to make repairs hereinbefore imposed upon him, and the lessees further agree that they will carry such public liability insurance as will constitute a reasonable and proper protection for all persons concerned, ***. (12) The premises may not be under-let, for the whole, or in part, assigned or transferred, without the written consent of the lessor, which the lessor will not unreasonably withhold, but in no event are the lessees relieved of any liability under this lease, ***. (15) It is further understood and agreed that the covenants and agreements herein contained are binding upon the parties hereto, as well as upon their respective heirs, administrators, successors, legal representatives and assigns".

Thereafter, Bradley & Bandy made a contract with J. W. B. Lindsey to make certain improvements, including the installation of this front, and Lindsey sub-let that portion of the work to the Hubbuch Glass Company. Lindsey gave the Glass Company the plans and specifications for the work, which was done under the supervision of Lindsey and was approved by the architect employed by Bradley & Bandy. The contract required this front "to be set in place with proper clamps or dowels against sound backing to form a permanent setting". This work was completed early in 1936. Noone had nothing to do with the installation of this front or its approval when completed, but as before pointed out, this was handled by the lessee and their contractor.

Vitrolite is an opaque structural glass and is fastened to the wall by daubs of mastic. The record shows that when so applied it is supposed to last a lifetime. Hubbuch testified the mastic he used was a standard brand, made by an approved manufacturer.

Bradley & Bandy remained in possession of this property until January 20, 1941, when they sold the business to Simmons and his associates, McDonald and Allen, whose proposition to and accepted by Bradley & Bandy is as follows:

"In connection with our purchase from you this date, of merchandise, fixtures and equipment in the store located at 601 Market Street it is agreed that you are to transfer the unexpired portion of the insurance policies, prepaid taxes and licenses.

"It is further agreed that we are to assume responsibility for payment of current bills for lights, water, gas and telephone.

"It is further agreed that we are to lease the building at 601 Market Street from you for the period from January 20th, 1941, through March 31st, 1941 at a monthly rental of $400.00 per month.

"We also agree to accept and promptly pay for any merchandise which is now in transit and may be received after this date".

This was then approved by Noone, who at the same time executed a lease on this property to Simmons and his associates for a period beginning March 31, 1941. Rent was paid by the Clover Leaf Drug Company to Noone at the instance of Bradley & Bandy.

On February 18, 1941, while the plaintiff Margaret Hester was walking along Market Street in front of the store in question, a large piece of this vitrolite fell upon her from a distance of several feet, inflicting serious injuries. There is no assignment of error as to the amount of damages recovered by her and her husband and it seems to be considered by all parties that she was free from negligence.

No one knows what caused this material to fall, other than there is some evidence that the mastic separated or split, but no evidence showing what caused it to do so. There is no evidence of any vis major, but the record shows that about the time Simmons and his associates purchased the business, a conduit was laid in front of the store, which required the use of a steam hammer, causing vibration. Simmons says he made a "routine inspection" of this glass after the conduit was laid. We think it apparent from his testimony that he used the word "routine" as having the same meaning as "casual". He subsequently testified as follows:

"Do you know why that glass fell?

"No, Sir. There was no apparent cause, no warning it was going to fall, or anything else, no more than 25 or 30 other buildings around there.

"You never inspected that glass?

"Not that high up. I did nothing other than to see it.

"You never had your hands on it for the purpose of inspecting it?

"Around the bottom of the glass, I had noticed the size of it.

"Did you inspect it?

"I did at the bottom. I inspected it to see if it was loose.

"Why didn't you go up to the top and inspect it?

"I had no reason to do that.

"You did check it at the bottom?

"Yes Sir.

"It was tight down there?

"Yes Sir.

"Did you look at the top of it?

"Yes Sir.

"Did it look all right?

"Yes Sir.

"At all times?

"Yes sir."

Suit was not brought against Bradley & Bandy, presumably because it appears by inference they were non-residents of the state.

The plaintiffs assign the following errors as to the defendant Hubbuch: (1) There was no evidence to support the verdict of the jury; (2) that error was committed by the trial judge in charging "there is no burden on the defendant Hubbuch to explain how...