Interstate Life & Acc. Co. v. Cox

• Decision Date: 29 March 1965
• Citation: 55 Tenn.App. 40,396 S.W.2d 80
• Parties: INTERSTATE LIFE AND ACCIDENT COMPANY v. William H. COX, Jr., Administrator of the Estate of Jennie Crow Hirst. 55 Tenn.App. 40, 396 S.W.2d 80
• Court: Tennessee Court of Appeals

Page 80

396 S.W.2d 80

INTERSTATE LIFE AND ACCIDENT COMPANY v. William H. COX, Jr., Administrator of the Estate of Jennie Crow Hirst.

55 Tenn.App. 40, 396 S.W.2d 80

Court of Appeals of Tennessee, Eastern Section.

March 29, 1965.

Certiorari Denied by Supreme Court Nov. 1, 1965.

[55 TENNAPP 43]

Campbell & Campbell, Chattanooga, for plaintiff in error.

Atchley, Atchley & Cox, Chattanooga, for defendant in error.

COOPER, Judge.

William H. Cox, Jr., as administrator, recovered a $6,000.00 judgment against the defendant, Interstate Life and Accident Insurance Company, as damages for the wrongful death of Jennie Crow Hirst, who was injured in a fall on a parking lot owned and operated by the defendant.

The parking lot, which was located on the South side of East 8th Street directly behind the Interstate Building in Chattanooga, Tennessee, was of the self-service variety, and was used primarily by employees of Interstate. Approximately 15 parking spaces were designated an 'in and out' spaces for use by patients of doctors who leased office space in the Interstate Building. Such patients were allowed to park 1 hour without charge, but were required to pay 10cents for each additional hour or part thereof. A parking attendant was constantly on [55 TENNAPP 44] the lot to collect parking charges and to see that no one parked on the lot who was not authorized to do so.

Jennie Crow Hirst, in company with her daughter, Mrs. Lillie Hudnall, parked on the Interstate lot on the morning of December 1, 1961. On their return to the lot, Mrs. Hudnall and Mrs. Hirst stopped at the attendant's office, paid the parking ticket and walked toward their automobile, with Mrs. Hudnall holding onto Mrs. Hirst's arm to steady and support her. On nearing the automobile, Mrs. Hudnall relinquished her hold on Mrs. Hirst's arm and walked a step or two ahead to open the automobile door. Within a few steps, Mrs. Hudnall heard her mother fall, turned, and found her sitting in a water-filled hole. On examination, it was found that Mrs. Hirst's right thumb and left leg were broken. She died three days later.

Plaintiff, as administrator, charged that Mrs. Hirst's injuries and resulting death were due to the negligence of Interstate (1) in failing to maintain the surface of the parking lot in a reasonably safe condition, (2) in failing to warn Mrs. Hirst of the danger attendant to the use of the lot, and (3) in inviting Mrs. Hirst and others to use the lot when it knew, or should have known, of the dangerous condition existing on the lot.

The defendant filed special pleas denying that there were any material defects in the parking lot, and averring that, if there were, they were obvious and were known by Mrs. Hirst as she used the parking lot frequently. The defendant also took the position that Mrs. Hirst's fall was the direct result of her own negligence (1) in not keeping a proper lookout for her own safety, and (2) in walking unaided, knowing that her sense of sight, balance, and general physical condition were not good due to her advanced age. As a corollary, the defendant also charged [55 TENNAPP 45] that Mrs. Hudnall was guilty to negligence which would prevent her sharing in any recovery for the wrongful death of her mother, in that she allowed her mother to walk unaccompanied and unsupported. This latter plea was struck on motion of plaintiff prior to trial.

After hearing the evidence, the jury resolved the issues in favor of the plaintiff and returned a verdict of $5,000.00 for the loss of Mrs. Hirst's life and $1,000.00 for medical and funeral expense. The defendant perfected its appeal, directing its numerous assignments of error to the trial court's refusal to direct a verdict, to alleged prejudicial remarks and actions of the trial court, to the court's action in striking a portion of the special plea, to the admission of medical testimony relating to the history of injury given by the deceased and the cause of death, and to the amount of the verdict.

We have repeatedly pointed out that in reviewing a case on appeal, where the appeal is from a judgment based on a jury's verdict, we do not weigh the evidence to determine the preponderance thereof, nor do we decide the credibility of witnesses. McAmis v. Carlisle, 42 Tenn.App. 195, 300 S.W.2d 59. Our review is limited to a determination of whether there is any material evidence to support the verdict, and 'it [our review] must be governed by the rule safeguarding the constitutional right of trial by jury, which requires us to take the strongest legitimate view of all the evidence to uphold the verdict, to assume the truth of all that tends to support it, to discard all to the contrary, and to allow all reasonable inferences to sustain the verdict.' D. M. Rose & Co. v. Snyder, 185 Tenn. 499, 206 S.W.2d 897. And if there is material evidence to support the verdict, it must be affirmed. City of Chattanooga v. Ballew, 49 Tenn.App.[55 TENNAPP 46] 310, 354 S.W.2d 806, and numerous cases there cited.

It is undisputed that at the time of her fall, Mrs. Hirst was an invitee and that the defendant owed her the duty to exercise reasonable care to maintain the parking lot in a safe condition, including the duty of removing or warning against a dangerous condition which it knew or, in the exercise of reasonable care, should have known to exist. Great Atlantic and Pacific Tea Co. v. Lyle, 49 Tenn.App. 78, 351 S.W.2d 391; Walls v. Lueking, 46 Tenn.App. 636, 642, 332 S.W.2d 692; Phillips v. Harvey Co., 196 Tenn. 174, 264 S.W.2d 810. The liability of the defendant, if any, is predicated upon a superior knowledge of a perilous condition on the premises and defendant would not be liable for injuries sustained from dangers that were obvious, reasonably apparent or as well known to the invitee as to the defendant. Broome v. Parkview, Inc., 49 Tenn.App. 725, 359 S.W.2d 566; Kendall Oil Co. v. Payne, 41 Tenn.App. 201, 293 S.W.2d 40; Illinois Cent. Ry. Co. v. Nichols, 173 Tenn. 602, 118 S.W.2d 213, 38 Am.Jur. Negligence Sec. 97, pp. 757, 758. The invitee assumes all normal or obvious risks attendant on the use of the premises. Gargaro v. Kroger Grocery & Baking Co., 22 Tenn.App. 70, 118 S.W.2d 561; 65 C.J.S. Negligence Sec. 50, p. 541.

In the present case, the record shows that defendant's parking lot was constructed in 1951, and has been used constantly since that time. The original construction required a deep earthen fill and the defendant used 'a rock binder course' as pavement to give the fill time to settle. In 1953, the parking lot was paved with asphalt. No [55 TENNAPP 47] repairs were made to the surface of the lot between the time the lot was paved and the day Mrs. Hirst fell.

Various employees of the defendant made regular weekly and monthly inspections of the lot, and the attendant 'covered the lot' almost daily. Corley Young, defendant's building manager who inspected monthly, was the only employee who admitted seeing depressions or holes in the surface of the lot. He testified that there were several in the general area where Mrs. Hirst fell, but stated that he did not consider them hazardous. He described the hole where Mrs. Hirst fell as bing 'a tire and half wide where cars had repeatedly been in there'; and not more than 1 to 1 1/4 inches deep.

The parking lot attendant, Joe Goodson, who went to the aid of Mrs. Hirst immediately after her fall, testified that the hole was 18 inches to 2 feet in diameter and from 1 1/2 to 2 inches in depth.

Mrs. Hudnall described the hole as being 'right in the line of passing as you go there between the cars' and that it was filled with 'black, murky, greasy water or something, the color of the pavement around the hole.' Mrs. Hudnall further described the hole as being about 25 inches long, 15 to 18 inches wide and 2 or 3 inches deep.

Several other employees of the defendant testified as to the size and shape of the hole where Mrs. Hirst fell, and the fact that there was no break in the pavement.

From this evidence, we think the jury reasonably could find that Mrs. Hirst was caused to fall by stepping unexpectedly into a hole or depression in the surface of defendant's parking lot 'where cars had...