Jolly Motor Livery Corp. v. Allenberg

• Citation: 221 S.W.2d 513,188 Tenn. 452
• Parties: JOLLY MOTOR LIVERY CORPORATION et al. v. ALLENBERG.
• Decision Date: 18 June 1949
• Court: Tennessee Supreme Court

221 S.W.2d 513

188 Tenn. 452

JOLLY MOTOR LIVERY CORPORATION et al. v. ALLENBERG.

Supreme Court of Tennessee.

June 18, 1949

Error to Circuit Court, Shelby County; Harry Adams, Judge.

Action by the Jolly Motor Livery Corporation and another against Julian Allenberg and Mrs. May Hill Overton for damages to motor vehicles of plaintiffs. Judgment of dismissal was affirmed by the Court of Appeals and plaintiffs bring error.

Writ denied.

Albert G. Riley, Memphis, for plaintiff in error.

Allen Cox, Jr. and Abe D. Waldauer, of Memphis, for defendant in error Allenberg.

Emmett W. Braden, of Memphis, for Mrs. Overton.

PREWITT Justice.

The circuit judge granted a motion for a new trial and dismissed the suits. Plaintiffs appealed in error to the Court of Appeals and that Court affirmed the judgment of the circuit court, both courts holding that there was no negligence shown on the part of defendant.

Plaintiffs Jolly Motor Livery Corporation and Jolly Cab Company, sued defendant, Julian Allenberg, and Mrs. May Hill Overton for damages caused by the falling of a brick wall belonging to defendant, resulting in property damages to the motor vehicles of plaintiffs. At the conclusion of plaintiffs' proof the court directed a verdict in favor of Mrs. Overton, from which she has not appealed.

A motion for a directed verdict in favor of Allenberg was made at the conclusion of plaintiffs' evidence and renewed at the conclusion of all the evidence in the case. These motions were disallowed.

The jury returned a verdict in favor of plaintiffs and assessed the damages of the Jolly Motor Livery Corporation at $700 and the damages of the Jolly Cab Company at $3500.

Defendant renewed his motion for a directed verdict on his motion for a new trial.

This motion was sustained by the circuit judge and the suits dismissed. The Court of Appeals affirmed the action of the circuit judge, and the only question before this Court is whether there is any evidence of negligence on the part of defendant.

The proof shows that on August 10, 1944, defendant leased to plaintiffs a lot on Court Avenue in the City of Memphis which was a vacant lot and which plaintiffs used as a storage lot for its automobiles and trucks. On the north boundary line of this lot there was a brick wall about 25 feet high which adjoined on the west end a building known as the Masonic Temple and ran east for a distance of about 60 feet. This wall along that part of the north boundary line formed the south wall of the property owned by Mrs. Overton; that the improvement upon the premises on Court Avenue was erected many years ago, was under a roof, and was for a long time used for storage purposes; that in the month of March, 1944, a fire partially destroyed the building, and during the summer of that year the remaining part of the building was torn down and removed except the brick wall that on December 26, 1944, this wall collapsed, was destroyed and fell upon the automobiles of plaintiffs, destroying many of them and damaging others.

Defendant's proof shows that following the fire in the building in March, 1944, it was partially destroyed; that during the summer Fred Sexton, a highly competent contractor in Memphis, at defendant's request, removed and tore down the remaining part of the building damaged by fire and made the property an open-air lot; that Sexton made all reasonable repairs on various walls surrounding the property. Defendant denied that the wall collapsed by reason of any negligence on his part; that at the time of the execution of the lease plaintiffs had an equal opportunity to see the premises and observe any defects. Defendant's proof also shows that plaintiffs constantly permitted cars, trucks and other vehicles to bump against the wall in being parked, and negligently failed and neglected to place any bumpers or safeguards to prevent said vehicles from running into, striking or coming in contact with the wall.

It further appears from the proof that after the fire the premises were inspected by Charles Nunnery, Chief of the City of Memphis Fire Prevention Bureau, and Charles Chandler, City of Memphis Building Inspector. Both these parties were of opinion that the wall in the northwest corner was safe.

After the fire, defendant entered into a verbal contract with Sexton to clean up the premises and make whatever repairs were necessary to make the property safe and useable. This contract was on a cost plus basis. Defendant did not attempt to exercise any control over Sexton, but left it entirely to him to do whatever was necessary. Sexton is a high-class and capable general contractor, with many years of experience.

Defendant leased the property to David Jolly, president of both corporations, to be used as an open-air parking lot under a written contract. Jolly was the owner of the property which adjoined defendant's lot on the east, and was familiar with...