Moss v. Fortune

CourtSupreme Court of Tennessee
Citation207 Tenn. 426,11 McCanless 426,340 S.W.2d 902
PartiesMorris MOSS v. Harold FORTUNE, d/b/a Fortune's Birds & Pets. 11 McCanless 426, 207 Tenn. 426, 340 S.W.2d 902
Decision Date07 October 1960

Harry P. Rubert, Robert L. White, Memphis, for plaintiff in error.

Thomas R. Prewitt, Memphis, Armstrong, McCadden, Allen, Braden & Goodman, Memphis, of counsel, for defendant in error.

FELTS, Justice.

This is an action for personal injuries. Plaintiff alleged in his declaration that defendant operated a business of renting to the public riding horses with saddle and bridle suitable for riding; that defendant rented him a horse so equipped; and that after he rode the horse a short distance, the left stirrup strap suddenly broke, threw him to the ground, and seriously injured him.

He further alleged that defendant was negligent in failing to make proper inspection of the stirrup straps before supplying them to him, in not ascertaining that the left strap was in a defective and dangerous condition and likely to cause injury to plaintiff, in failing to warn plaintiff of such condition, and in supplying him such a strap; and that such negligence proximately caused plaintiff's injuries.

Defendant filed a plea averring that plaintiff had 'voluntarily assumed the risk of injury incident to riding defendant's horse'; that 'defendant maintained the horse and permitted its use only upon conditions specified in a written agreement'; that, but for such agreement, plaintiff would not have been permitted to ride defendant's horse; and that such agreement signed by defendant was as follows:

'Fortune's Tropical Gardens

'I am hiring your horse to ride today and all future rides at my own risk.

'Signed Morris Moss'

Plaintiff filed a demurrer to defendant's plea of this agreement as a bar to plaintiff's right to maintain this suit. The Trial Judge overruled the demurrer, plaintiff did not plead over, but stood on his demurrer, and judgment was entered dismissing this action. Plaintiff appealed in error.

We think the judgment below was correct. By this writing it was stipulated that plaintiff was 'hiring your horse to ride today and all future rides at my own risk.' It seems the plain intent of this agreement was that plaintiff assumed the risk incident to the hiring and riding of the horse, including the risk which caused the injuries sued for.

It is well settled in this State that parties may contract that one shall not be liable for his negligence to another but that such other shall assume the risk incident to such negligence. Cincinnati, New Orleans & Texas Pacific Ry. Co. v. Saulsbury, 115 Tenn. 402, 90 S.W. 624; Carolina, C. & O. R. R. Co. v. Unaka Springs Lumber Co., 130 Tenn. 354, 170 S.W. 591; McKay v. Louisville & Northern R. R. Co., 133 Tenn. 590, 182 S.W....

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43 cases
  • Tate v. Trialco Scrap, Inc.
    • United States
    • U.S. District Court — Middle District of Tennessee
    • June 15, 1989
    ...rejection of strict construction was indirectly supported by earlier and later Tennessee Supreme Court decisions. See Moss v. Fortune, 207 Tenn. 426, 340 S.W.2d 902 (1960); Empress Health and Beauty Spa, Inc., v. Turner, 503 S.W.2d 188 (Tenn.1973). Other appeals court decisions also support......
  • Schlobohm v. Spa Petite, Inc.
    • United States
    • Supreme Court of Minnesota (US)
    • December 10, 1982 a contract for sky diving); Empress Health & Beauty Spa v. Turner, 503 S.W.2d 188 (Tenn.1973) (spa and gym); Moss v. Fortune, 207 Tenn. 426, 340 S.W.2d 902 (1960) (horse and saddle Further, in the determination of whether the enforcement of an exculpatory clause would be against public p......
  • Blackwell v. Sky High Sports Nashville Operations, LLC
    • United States
    • Court of Appeals of Tennessee
    • January 9, 2017
    ...liable for his negligence to another but that such other shall assume the risk incident to such negligence." Moss v. Fortune, 207 Tenn. 426, 429, 340 S.W.2d 902, 903–04 (Tenn. 1960). These types of agreements, however, are subject to some important exceptions, such as waivers involving gros......
  • Copeland v. Healthsouth/Methodist Rehab. Hosp., LP
    • United States
    • Supreme Court of Tennessee
    • December 20, 2018 party will not be liable for negligence to the other party, subject to certain exceptions. Id. at 430 (citing Moss v. Fortune , 207 Tenn. 426, 340 S.W.2d 902 (Tenn. 1960) ). This Court recognized a line of Tennessee cases upholding such agreements,6 but none involving a physician, who i......
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