Robinson v. Tate

• Decision Date: 16 March 1950
• Citation: 236 S.W.2d 445,34 Tenn.App. 215
• Parties: ROBINSON et al. v. TATE.
• Court: Tennessee Court of Appeals

Page 445

236 S.W.2d 445

34 Tenn.App. 215

ROBINSON et al. v. TATE.

Court of Appeals of Tennessee, Western Section, at Jackson.

March 16, 1950.

Certiorari Denied by Supreme Court Dec. 9, 1950.

L. E. Gwinn, of Memphis, for plaintiff in error.

W. Vincent Beal, Chandler, Shepherd, Heiskell & Williams, of Memphis, for defendant in error.

SWEPSTON, Judge.

This appeal in error is by the defendants below, against whom plaintiff recovered a verdict and judgment in the amount of $1700 for damages to her merchandise and fixtures caused by steam escaping from an alleged defective radiator valve.

Defendants' motion for a new trial was seasonably made and overruled and the defendants have appealed and filed eleven assignments of error.

'Plaintiff's declaration alleged that defendants, Thomas L. Robinson, John E. Robinson and P. M. Robinson were the owners and operators of the Robinson Building, located at 160 Union Avenue, Memphis, Tennessee;

'That plaintiff leased from the defendants a space on the ground floor of the building, in which she operated a blouse shop, specializing in the sale of high-grade blouses, skirts, stockings and other related items;

'That this space was rented to plaintiff and her sister on or about July 18, 1947, for a period of one year from August 1, 1947, to July 31, 1948, with privilege of renewal for additional year;

'That defendants, as lessors, agreed to furnish heat for the space rented to plaintiff, and a radiator and pipe connected to the central heating plant in the Robinson Building were located in the space rented to the plaintiff;

'That about the time heat was turned on in said building for the Fall, plaintiff noticed that condensed water sometimes formed on the inside of the glass door and plate glass windows in the space rented by her, this being called to the attention of defendants and an inspection made to discover the cause thereof; that later the attention of defendants was directed to the fact that one of the radiators formerly located in the blouse shop had been removed from the pipe connected with the central heating system and that no cap had been put on the end of said pipe and that steam at times escaped from the valve on the pipe despite all efforts to keep it closed;

'That defendants were notified of this condition and promised to have the pipe capped; that defendants did not have the pipe capped until more than two weeks after the alleged damage to plaintiff's goods occurred;

'That when the plaintiff closed her shop on the evening of November 8, 1947, said valve was closed tightly as it could be and no steam was escaping. However, by 7 o'clock a. m. the following morning, Sunday, November 9, 1947, the plaintiff's shop had become completely filled with hot steam which escaped through the valve on the uncapped pipe and thoroughly and completely saturated everything in the plaintiff's shop;

'And that, as a result of the escaping steam, plaintiff's goods and fixtures were damaged in the amount of $4,000.00.

'The declaration further alleged that this pipe was under the control of the defendants, and the defendants having such pipe under their control and knowledge, or having a duty to know, that great damage would be done if steam escaped from said pipe, negligently and wrongfully failed to inspect said pipe and maintain it in a proper and safe condition and negligently and wrongfully fired the furnace in the Robinson Building and sent large quantities of hot steam into said pipes which they had negligently and wrongfully failed to inspect and maintain at a time when they knew there was no one in the plaintiff's shop to discover whether said pipe and valve were leaking; that the defendants were negligent in that they, having said pipe under their control, negligently allowed said pipe to remain uncapped while hot steam was being forced into said pipe when the defendants knew, or in the exercise of reasonable care should have known, that the valve on the end of said pipe had leaked or was likely to leak, permitting raw hot steam to escape into the plaintiff's shop; that the defendants were negligent in that they themselves had negligently removed the aforesaid radiator and had negligently left said pipe uncapped while the building was occupied by a former tenant and knowing that said pipe was uncapped, that said pipe had leaked during the preceding winter and would continue to leak so long as it remained uncapped and knowing that the plaintiff did not know the aforesaid dangers, rented said building to the plaintiff and thereafter while she was occupying the same so fired the furnace in the Robinson Building as to send hot steam into said pipe, without advising the plaintiff of said facts and without repairing and remedying the aforesaid dangerous situation which was known to the defendants.

'The defendants filed pleas of not guilty and contributory negligence.

'In response to motion of plaintiff, defendants also plead specially. There were four of these special pleas. The first was as follows:

'For special plea, defendants allege that plaintiff occupied the premises described in the declaration under a written lease, executed between plaintiff and defendants July 18, 1947, which contained the provision, 'the lessee accepts space as is,' and the further provision set out in section or paragraph 21 of that lease, which is as follows:

"'The Lessor reserves the right during the term of this lease, to enter said premises at reasonable hours to show the same to other persons who may be interested in renting or buying the property, and for the purpose of inspecting the premises and to make such repairs, additions or improvements as Lessor may deem necessary for the protection and preservation of the said building and premises; but Lessor is not bound to make any repairs whatever nor to be held liable for any damage in consequence of leaks, or for the stoppage of water, sewer, gas or drain pipes by reason of freezing or any other cause or obstructions, nor for any other defects about the building and premises, the Lessee having examined the same and being satisfied therewith, but should such leaks, obstructions, freezing, stoppages, or other defects about the building and premises occur during the term of this lease, or while the Lessee is occupying the premises, then the Lessee shall remedy the same promptly at the Lessee's expense unless the Lessor by written agreement undertakes to do the same.'

"And defendants will rely upon the terms and provisions of said lease and particularly the provisions herein specifically referred to which had not been changed or modified at the time of the alleged damages sustained by plaintiff. Said lease was executed in triplicate, one copy thereof being retained by plaintiff, and will be introduced at the hearing without other or further notice.'

'The second special plea alleged that there was no defect in the valve referred to in plaintiff's declaration and that any steam escaping therefrom resulted from the negligence of defendant in failing to close said valve and keep it closed.

'The third plea, among other things, alleged that neither the defendants nor their agent for the management and operation of the building were notified of any claimed defect in the pipe or value and denied that either they or their agent made any promise to repair the same.

'The fourth special plea averred that, under the lease contract, it was the duty of plaintiff to make repairs and if the dangerous condition existed, as alleged in her declaration, she was guilty of contributory negligence in continuing to operate her business for two weeks after the date the premises were alleged in her declaration to have been made and broken.'

Defendants have eleven assignments of error, the first being that there is no evidence to support the verdict.

Consideration of this assignment, however, requires consideration of some of the other assignments first, because of the opposing constructions of the lease urged by the respective parties. Also, it will not be feasible, and would unduly lengthen this opinion, to discuss each assignment separately and in detail.

The principal controlling point of difference in the opposing theories is that defendant relies upon Section 21, above quoted and Section 17, referred to hereinafter, as exempting them from liability for this accident.

The plaintiff contends that these sections of the lease have no application, and the Court so charged the jury.

Before discussing this question, however, we shall state the evidence favorable to the plaintiff.

Defendants admit that steam coming through the valve caused the damage and the amount of damage is not questioned.

There was evidence as follows:

The valve from which the steam escaped was an ordinary radiator valve designed, and until the removal of the radiator, actually used to control the flow of steam into the radiator.

Prior to the occupancy of the shop by the plaintiff, the radiator to which this valve had been connected was removed.

The pipe which supplied steam to said radiator was left in the shop without being capped, said valve being the only thing to prevent the flow of steam from said supply pipe.

This supply pipe, being a part of the central heating system of the Robinson Building, was connected to a steam feeder line running to the furnace located in the basement of the Robinson Building.

Steam generated by this furnace, which was located in the basement of the Robinson Building, kept the pipe in the plaintiff's shop constantly filled with steam at all times when the central heating system was in operation.

The lease agreement obligated the defendants to furnish heat to the plaintiff's shop, and the defendants were also obligated to furnish heat for the other shops and offices located in said building.

The furnace in the basement and the pipes and radiators connected thereto, including the valve and pipe from which the steam escaped,...