Merchants' Cotton Press & Storage Co. v. Miller

• Decision Date: 13 May 1916
• Citation: 186 S.W. 87,135 Tenn. 187
• Parties: MERCHANTS' COTTON PRESS & STORAGE CO. v. MILLER.
• Court: Tennessee Supreme Court

186 S.W. 87

135 Tenn. 187

MERCHANTS' COTTON PRESS & STORAGE CO. v. MILLER.

Supreme Court of Tennessee.

May 13, 1916

Certiorari to Court of Civil Appeals.

Action by Andrew Miller against the Memphis Compress Company and another. From a judgment of the Court of Civil Appeals reversing a judgment for defendant, Merchants' Cotton Press & Storage Company, it brings certiorari. Denied.

Lindsay B. Phillips, of Memphis, for plaintiff.

S. P Walker, of Memphis, for defendant Merchants' Cotton Press & Storage Co.

Caruthers Ewing and Earl King, both of Memphis, for defendant Memphis Compress Co.

WILLIAMS J.

The case is before this court on the grant of a petition for certiorari filed by the Merchants' Cotton Press & Storage Company to have reviewed a judgment of the Court of Civil Appeals adverse to it.

The suit was instituted by Miller to recover damages against the Memphis Compress Company (hereinafter called the lessee company) in whose employ Miller was at the time he suffered the personal injury, which is the cause of action. The petitioner company, the owner of the compress plant, was also made a defendant, and for convenience it will be referred to as the lessor company, it having leased the premises to the operating company, the employer of Miller.

In the declaration it was averred that plaintiff was employed in the compress, and that there had been furnished to him an unsafe place in which to work; that a door of the compress building and its attachments and fastenings were old, worn, defective and unsafe; that this was true at the time the premises were demised by the lessor company to the lessee company, of which facts the lessor had knowledge, but that it negligently failed to properly repair same, etc.

The trial judge sustained a motion for peremptory instructions interposed by the lessor company, and the Court of Civil Appeals reversed the judgment.

The injury occurred November 12, 1913, to Miller while working as a storage laborer in and about the compress. He had been so employed for only three days when he was injured, and was unacquainted with the confessedly defective condition of the door in question. This door weighed from 800 to 1,000 pounds, being metal lined for fire protection purposes. It was constructed to be operated by raising after the manner of the ordinary window; weights having been suspended to facilitate its being raised and lowered. The compress building was erected in 1887, and the ropes to which the weights had been attached had worn and broken and the weights had become detached, so that, in order to keep the door up and open, a prop or stick was used as a support. By long use the strips that held either side of the door in place in grooves had worn away and become thin. On the day of the accident, at the close of the work hours, in the darkness, Miller and two other laborers went to lower the door. One of these two knocked the prop out before Miller reached a point where he or the third laborer could take hold and ease the door's descent. Its great weight required two or three men to lower it in safety. The door fell suddenly to the floor, and its bound carried it out of the insecure grooves; it fell on Miller, causing painful injuries.

It appeared that the unsafe condition of the door's attachments and fastenings were known to the superintendent of the lessee company in active charge of the plant, and that he had notified its higher officials. Further, as early as September 1-10, 1913, notice thereof had been given to the lessor company with an accompanying request to repair, that company being under contract obligation to the lessee to make repairs. Nothing was done by the lessor company in pursuance of the notice or of the knowledge received by one of its officials about that date while he was at the plant.

There is a sharp and pronounced conflict among the authorities as to the liability of a landlord, who has obligated himself by a contract with his tenant to make repairs, or to keep the premises in repair, to a third person who may be lawfully on the premises and is there injured by reason of the landlord's failure to perform the agreement. Probably the weight of authority is in favor of the rule of nonliability in such circumstances, the reasoning in most of the decisions to that effect proceeding on the idea that there is wanting privity of contract between the landlord and the injured person, which privity is deemed to be an essential element of liability.

We say most of the cases, for the reason that some of the decisions of the courts of this country, which reach the result indicated, go further and deny even to the tenant the right to recover for personal injuries that may be consequent on the breach of the landlord's contract to repair the demised premises. Such damages are by them held not to be in the contemplation of the parties, and to be too remote, to be recoverable by the tenant in an action ex contractu, and that "to permit of a recovery for such damages based on a contract simply because it is in form an action of tort would be making a distinction that could not be justified by reason or authority." Thompson v. Clements, 96 Md. 196, 60 L. R. A. 580; ^[1] Davis v. Smith, 26 R.I. 129, 58 A. 630, 66 L. R. A. 478, 106 Am. St. Rep. 691, 3 Ann. Cas. 832, and cases cited in the opinion and the note. More may be said of the logical exactness of this doctrine than of its inherent justice.

The English rule, reannounced by the Court of Appeals and the House of Lords in Cavalier v. Pope (1905) 2 K. B. 757; Id. [ 1907] A. C. 428, 5 Ann. Cas. 713, makes the test of the lessor's liability privity of contract. In that case a tenant was allowed by the Court of Appeals to recover of his landlord for his own injuries, caused by a defective floor which the owner had engaged to repair; but that court and the House of Lords were in accord in holding that the wife of the tenant, who was injured at the same time, was not entitled to a judgment; and this, on the ground that "there was but one contract, and that was made with the husband. The wife cannot sue upon it," and there is no other form in which an action could be maintained. The later case of Ryall v. Kidwell (1913) 3 K. B. 123, Ann. Cas. 1915B, 163, follows the above case, in denying a recovery for injuries suffered by a daughter of the tenant and undertakes to refute the contention urged by counsel to the effect that if--

"there might be no remedy on the contract there was a remedy in tort. * * * A person who is not the tenant has no right of action either in contract or in tort."

It is probably true, as claimed, that the greater number of the courts of this country that have so far ruled on the point give adherence to the English rule. See cases cited in 24 Cyc. 1119, 1120, and in annotations of Ryall v. Kidwell Ann. Cas. 1915B, 165, and Cameron v. Young, 12 Ann. Cas. 49; also Brady v. Klien, 133 Mich. 422, 95 N.W. 557, 62 L. R. A. 909, 103 Am. St. Rep. 455, 2 Ann. Cas. 464, and note; Dustin v. Curtis, 74 N.H. 266, 67 A. 220, 11 L. R. A. (N. S.) ...