Pulaski Housing Authority v. Smith

• Citation: 39 Tenn.App. 213,282 S.W.2d 213
• Parties: PULASKI HOUSING AUTHORITY v. Mrs. Blondina SMITH. PULASKI HOUSING AUTHORITY v. John R. SMITH.
• Decision Date: 01 July 1955
• Court: Tennessee Court of Appeals

Page 213

282 S.W.2d 213

39 Tenn.App. 213

PULASKI HOUSING AUTHORITY v. Mrs. Blondina SMITH.

PULASKI HOUSING AUTHORITY v. John R. SMITH.

Court of Appeals of Tennessee, Middle Section.

July 1, 1955.

Certiorari Denied by Supreme Court Oct. 7, 1955.

Dan E. McGugin, H. Francis Stewart, Nashville, Jack B. Henry, Pulaski, for Pulaski Housing Authority, plaintiff in error.

Harry Phillips, Nashville, Wade & Forrester, Pulaski, for Mr. and Mrs. Smith, defendants in error.

FELTS, Judge.

These actions were brought by tenants in an apartment against their landlord, Pulaski Housing Authority, to recover for personal injuries received by them in an explosion of butane gas which occurred the afternoon they moved into the apartment and while its gas appliances were being lighted and demonstrated to them by an alleged servant of defendant.

They averred that defendant leased them the apartment as ready and fit for occupancy when in fact it was unsafe and dangerous because of a defect in its gas line which would let gas escape and accumulate in the pantry and kitchen; and that when they moved in, defendant's servant turned in the gas, and, in striking matches to light and demonstrate the appliances, set fire to the gas that had accumulated in the kitchen, and caused an explosion which burned Mrs. Smith severely and Mr. Smith to a less extent.

Defendant pleaded the general issue of not guilty. On the trial there was a verdict and judgment in favor of Mrs. Smith for $14,000, and a verdict and judgment for Mr. Smith for $1,000. Defendant appealed in error, and insists that the Trial Judge should have directed verdicts for it because there was no evidence to support a verdict for plaintiffs.

In arguing this question learned counsel differ widely in their views of the evidence. We must, however, take the view most favorable to plaintiffs, in testing whether verdicts should have been directed for defendant. Smith v. Sloan, 189 Tenn. 368, 376-377, 225 S.W.2d 539, 542, 227 S.W.2d 2.

Defendant, Pulaski Housing Authority, is a corporation organized under our statute, 1950 Tenn.Code Supp. § 3647.1 et seq., and has the broad powers authorized by that act. It had a Board of Directors, but its actual management was entrusted to its Executive Director, Mr. Joe Henry, Jr., and its Tenant Manager, Mrs. Jewel Cole.

Defendant, in the summer of 1951, began constructing at Pulaski, Tennessee, a housing project of 80 apartments for rent. It employed an architect to plan and supervise the work and a general contractor, R. E. Dunn Co., to furnish the materials and do the work according to the plans and specifications. The contractor made a subcontract with John C. Holt to install the interior plumbing and the appliances. Each apartment was furnished with appliances for use of butane gas--a stove, a heater, a water heater.

On November 15, 1952, the contractor listed 32 of the apartments as completed and ready for occupancy, and defendant accepted them from the contractor. This acceptance was effective as of 10:00 A.M. November 15, 1952, and was evidenced by a writing executed by Mrs. Cole in the name of defendant by Joe W. Henry, Jr., she signing in that form because he was absent at the time.

At the same time defendant, by its Tenant Manager, took charged of these 32 apartments, advertised them as ready and fit for occupancy, began leasing them, receiving rents in advance, having the tenants move in, and servicing the apartments--turning in the gas at the meters, lighting and adjusting the appliances preparatory to delivering possession to the tenants.

On November 15, 1952, defendant, through Mrs. Cole, leased to plaintiffs apartment No. 281, which was one of the 32 defendant had accepted from the contractor. Plaintiffs did not see this apartment before leasing it. It seems that it was being washed or cleaned up at the time, and Mrs. Cole showed them another similar one, and stated that theirs would be ready and they could move into it the next day, which was Sunday.

On that Saturday the gas supply was not ready until about 6:00 P.M. Then Holt, who had been the subcontractor, and Criner, who had been the job inspector, and three or four men from the Butane Gas Company, began servicing the apartments--turning in the gas, lighting and adjusting the appliances for the tenants. These men worked until late that night, and thought they had finished servicing all of the apartments.

But there were three that were not serviced. Mrs. Cole had leased these three to tenants and had told the tenants to move in the next day, Sunday. One of these was No. 281, leased to plaintiffs, and they moved in Sunday afternoon November 16, 1952, which was a very cold, damp day. Finding no heat in the apartment, Mr. Smith went to see Mrs. Cole and found her servicing one of the other two apartments, and she told him she would send a man to service their apartment.

She called Holt that Sunday about noon and asked him to come and service the remaining three apartments. He did come about 4 o'clock that afternoon, and she sent him to service plaintiffs' apartment--to turn in the gas at the meter, light and adjust the appliances, and demonstrate them to plaintiffs, who had never used gas before and knew little or nothing about it.

There had been a leak in the gas line just outside plaintiffs' apartment, and a chemical with a strong odor had been put in the line to enable defendant's employees to find the leak and repair it. Holt knew about this. But neither he nor plaintiffs knew of the defect in the gas line in the pantry in the apartment. A screw cap designed to close the end of the pipe was missing, leaving the line open so that gas could fill the pantry and kitchen.

When Holt arrived at plaintiffs' apartment, he first turned in the gas at the meter, and then went into the kitchen, told plaintiffs to watch him so that they would see how he lighted the appliances. While Mrs. Smith stood in front of the stove, Holt turned on the gas and began striking matches to light the stove. She said she smelled gas. He told her it was not gas but a chemical that had been used in the pipe. He kept on striking matches trying to light the stove, and suddenly there was a flash and a terrific explosion, which burned Mrs. Smith badly and Mr. Smith to a less degree.

Thus there was evidence on which the jury could find that defendant's agent leased plaintiffs this apartment, holding it out as ready and fit for occupancy when in fact it was dangerous because of the defect in the gas line; that plaintiffs, believing it to be like the other apartment shown them by the agent, did not inspect it or learn of the defect; and that such defect, plus the conduct of Holt above detailed, caused the injuries sued for.

It is true in the law of landlord and tenant there is no implied warranty that the premises are suitable for the purposes for which they are let, Boyd v. McCarty, 142 Tenn. 670, 674, 222 S.W. 528; but in the law of negligence the landlord owes a duty to the tenant, and others on the premises in the right of the tenant, 'not to expose them to danger which he knows or could know by the exercise of reasonable diligence.' Hines v. Willcox, 96 Tenn. 328, 331, 34 S.W. 420, 421, 34 L.R.A. 824, 832, 833; Willcox v. Hines, 100 Tenn. 538, 550, 46 S.W. 297, 300, 41 L.R.A. 278, 279, 281, 66 Am.St.Rep. 770.

"The ground of liability upon the part of a landlord when he demises dangerous property has nothing special to do with the relation of landlord and tenant. It is the ordinary case of liability for personal misfeasance, which runs through all the relations of individuals to each other.' Willcox v. Hines, [supra] 100 Tenn. 538, 549, 46 S.W. 297, 299.' Kilmer v. White, 254 N.Y. 64, 73, 171 N.E. 908, 911; Robinson v. Tate, 34 Tenn.App. 215, 232, 236 S.W.2d 445, 452.

It is said that, under the 'Willcox Cases', the relation of landlord and tenant 'may almost be said to be confidential in its nature.' Smith v. Tucker, 151 Tenn. 347, 362, 373, 270 S.W. 66, 70, 41 A.L.R. 830. This is true in the sense that the landlord owes a...