Moss v. Fortune

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

Page 902

340 S.W.2d 902
Morris MOSS
v.
Harold FORTUNE, d/b/a Fortune's Birds & Pets.
11 McCanless 426, 207 Tenn. 426, 340 S.W.2d 902
Supreme Court of Tennessee.
Oct. 7, 1960.

[207 TENN 427] 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 [207 TENN 428] 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.

[207 TENN 429] It is well settled in this State that parties may contract that one shall not be liable for...

To continue reading

Request your trial
43 practice notes
  • Blackwell v. Sky High Sports Nashville Operations, LLC, No. M2016–00447–COA–R9–CV
    • United States
    • Court of Appeals of Tennessee
    • January 9, 2017
    ...not be 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 involvi......
  • Schlobohm v. Spa Petite, Inc., No. 81-1193.
    • United States
    • Supreme Court of Minnesota (US)
    • December 10, 1982
    ...(clause in 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 ......
  • Copeland v. Healthsouth/Methodist Rehab. Hosp., LP, No. W2016-02499-SC-R11-CV
    • United States
    • Tennessee Supreme Court
    • December 20, 2018
    ...that one 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, ......
  • Tate v. Trialco Scrap, Inc., No. 3-88-0593.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of 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......
  • Request a trial to view additional results
43 cases
  • Blackwell v. Sky High Sports Nashville Operations, LLC, No. M2016–00447–COA–R9–CV
    • United States
    • Court of Appeals of Tennessee
    • January 9, 2017
    ...not be 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 involvi......
  • Schlobohm v. Spa Petite, Inc., No. 81-1193.
    • United States
    • Supreme Court of Minnesota (US)
    • December 10, 1982
    ...(clause in 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 ......
  • Copeland v. Healthsouth/Methodist Rehab. Hosp., LP, No. W2016-02499-SC-R11-CV
    • United States
    • Tennessee Supreme Court
    • December 20, 2018
    ...that one 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, ......
  • Tate v. Trialco Scrap, Inc., No. 3-88-0593.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of 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......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT