Howell v. Betts

• Decision Date: 07 December 1962
• Citation: 211 Tenn. 134,15 McCanless 134,362 S.W.2d 924
• Parties: Dan HOWELL et ux. v. Clifford A. BETTS et al. 15 McCanless 134, 211 Tenn. 134, 362 S.W.2d 924
• Court: Tennessee Supreme Court

Page 924

362 S.W.2d 924

Dan HOWELL et ux. v. Clifford A. BETTS et al.

15 McCanless 134, 211 Tenn. 134, 362 S.W.2d 924

Supreme Court of Tennessee.

Dec. 7, 1962.

Atchley & Atchley, Chattanooga, for plaintiffs in error.

Folts, Bishop, Thomas, Leitner & Mann, Chattanooga, for defendants in error.

FELTS, Justice.

This was an action brought by Howell and wife, purchasers of a parcel of land, to recover damages of defendants, surveyors, for an error made by them in a survey and description of the land. Defendants demurred to plaintiffs' declaration. The Trial Judge sustained the demurrers and dismissed the action. Plaintiffs appealed in error.

The facts averred in the declaration were that defendants made the survey of this parcel of land 'for a former owner' in the year 1934; that the record of the survey described the parcel by metes and bounds, and showed it contained 2.3 acres, more or less; that 24 years later, or on November 12, 1958, plaintiffs purchased this parcel, relying on the accuracy of the survey and description.

It was further averred that in May 1960, plaintiffs learned of the errors in the survey, which were that their west line is 19.6' shorter, their north line 0.8' shorter, and their east line 13.1' shorter, than as shown in the 1934 survey; and that, therefore, the area of plaintiffs' lot is less than that shown by the survey, and they are entitled to damages for the deficiency.

The demurrers were upon two grounds: (1) that the facts averred did not show any privity between plaintiffs and defendants or any duty owed by the latter to the former; and (2) that the action, if any, was barred by the statutes of limitations of one year, of three years, and of six years.

The record does not show upon what ground the Trial Court sustained the demurrer. But, obviously, our first question is whether the declaration was sufficient to state any cause of action. It did not allege any contract between the parties; and if it stated any cause, it was one in tort for negligent misrepresentation.

So, the question is whether defendants, in surveying the lot for the then owner in 1934, owed a duty of care to any remote purchaser, not in privity, who might purchase it 24 years later, as plaintiffs did.

It is true the old rule was that there was no duty of care upon a defendant to a plaintiff not in privity. Burkett v. Studebaker Bros. Mfg. Co., 126 Tenn. 467, 150 S.W. 421. But it can hardly be said that such a general rule any longer exists. See, Dunn v. Ralston Purina Company, 38 Tenn.App. 229, 233, 272 S.W.2d 479, and the numerous authorities cited there.

Such a duty has been imposed and defendant held liable to a plaintiff not in privity in a number of classes of cases, such as that of a supplier of goods or services which, if negligently made or rendered, are 'reasonably certain to place life and limb in peril.' MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696; Boyd v. Coca Cola Bottling Works, 132 Tenn. 23, 28, 30, 177 S.W. 80.

Such a duty, and liability for its breach, has also been imposed upon defendant in favor of a plaintiff not in privity in cases of reasonably foreseeable risk of damage to tangible property. Dunn v. Ralston Purina Co., supra; Biakanja v. Irving, 49 Cal.2d 647, 320 P.2d 16, 18, and cases there cited.

As stated in Biakanja v. Irving, supra, such a duty and consequent liability have been imposed on ...