Ruth v. Ruth

• Citation: 17 McCanless 82,213 Tenn. 82,372 S.W.2d 285
• Court: Supreme Court of Tennessee
• Decision Date: 06 November 1963
• Parties: George Robert RUTH, Plaintiff in Error, v. Dean A. RUTH, Defendant in Error. 17 McCanless 82, 213 Tenn. 82, 372 S.W.2d 285

Page 285

372 S.W.2d 285

George Robert RUTH, Plaintiff in Error, v. Dean A. RUTH, Defendant in Error.

17 McCanless 82, 213 Tenn. 82, 372 S.W.2d 285

Supreme Court of Tennessee.

Nov. 6, 1963.

Hugh P. Garner, Morgan & Garner, Chattanooga, for plaintiff in error.

J. Thomas Mann, and Folts, Bishop, Thomas, Leitner & Mann, Chattanooga, for defendant in error.

HOLMES, Justice.

The questions presented in this case are whether or not the declaration of the plaintiff states a cause of action for negligence against the defendant, and whether or not the declaration shows on its face that the plaintiff was guilty of proximate contributory negligence as a matter of law. The parties will be referred to as they appeared in the Trial Court. The Trial Judge sustained defendant's demurrer to the declaration. The plaintiff has duly perfected his appeal to this Court. The declaration, insofar as it is material to the questions presented, states:

'Plaintiff would show that on or about July 24, 1962, while an invitee and guest on the aforementioned premises, and at the approximate hour of 9:00 P.M., the defendant, Dean A. Ruth, .......... did, while cleaning and repairing an outboard motor, negligently cause the motor and cleaning fluid to catch on fire. At the time the fire erupted, plaintiff was in an adjoining room, and when he heard cries for help from the defendant, Dean A. Ruth, he rushed into the room to find it and himself engulfed in flames, at which time he saw the defendant standing in the room holding a burning outboard motor, and the defendant himself on fire, crying for help. The plaintiff, in an attempt to rescue the defendant, and to take himself from the perilous predicament he then found himself in, began to move through the room to the nearest exit, at which time a pan of gasoline sitting in the floor and near his path, caught on fire and was either knocked over by the plaintiff, or exploded, causing burning gasoline to cover the plaintiff's body, thereby causing plaintiff serious and permanent injuries'.

The declaration further alleges:

'Plaintiff avers that the accident and his resulting injuries resulting from defendant, Dean A. Ruth, negligently and carelessly using a highly volatile substance in the cleaning and repair of the outboard motor, and did negligently cause the motor to give off sparks and ignite the substance and/or strike the motor in such a manner as to cause the motor to give off sparks into the substance.

'Plaintiff avers that the defendant, Dean A. Ruth, was negligent in leaving gasoline and/or a highly volatile substance lying about the room in open container.'

The declaration further states that plaintiff's injuries were proximately caused by the negligence alleged against the defendant and that the plaintiff himself was guilty of no negligence. To this declaration, the defendant filed a demurrer upon the grounds that the declaration does not allege any negligence on the part of the defendant, and that the declaration shows on its face that the plaintiff was guilty of proximate contributory negligence as a matter of law.

It is the contention of defendant that the averments of the declaration are merely legal conclusions supported by no factual allegations, and that the declaration only sets forth a mere happening of an incident from which no negligence can be presumed.

The basic requisites of pleadings are stated in T.C.A. Sec. 20-702, as follows:

'Any pleading possessing the following requisites is suffient: (1) When it conveys a reasonable certainty of meaning; (2) when, by a fair and natural construction, it shows a substantial cause of action or defense.'

Every reasonable intendment must be made in favor of a pleading when it is challenged by demurrer. Jackson v. B. Lowenstein & Bros., Inc., 175 Tenn. 535, 136 S.W.2d 495, 497; Moore v. Bell, 187 Tenn. 366, 369, 215 S.W.2d 787, 789; United States Fidelity & Guaranty Co. v. Elam, 198 Tenn. 194, 206, 278 S.W.2d 693, 698; Holland Bros. Electric Co. v. M. W. Kellogg Co., 205 Tenn. 352, 359, 326 S.W.2d 649, 652.

The three elements necessary to the existence of a cause of action for negligence are:

1. A duty of care owed by the defendant to the plaintiff.

2. A failure on the part of the defendant to perform that duty.

3. An injury to the plaintiff resulting proximately from the defendant's breach of that duty of care.

De Glopper v. Nashville Railway & Light Co., 123 Tenn. 633, 134 S.W. 609; Mullen v. Russworm, 169 Tenn. 650, 90 S.W.2d 530; Nichols v. Smith et al., 21 Tenn.App. 478, 111 S.W.2d 911.

A declaration containing mere allegations of legal conclusions of the defendant's negligence, without stating the ultimate facts constituting the negligence, is bad on demurrer. Cotton Oil Co. v. Shamblin, 101 Tenn. 263, 47 S.W. 496; Cumberland Telephone & Telegraph Co. v. Cook, 103 Tenn. 730, 55 S.W. 152; Drake v. Hagan, 108 Tenn. 265, 67 S.W. 470; White v. Nashville, C. & St. L. Railroad, 108 Tenn. 739, 70 S.W. 1030.

Applying the foregoing well settled rules to the case at bar, it appears that the declaration alleges that the plaintiff was an invitee upon the premises of the defendant. The law places the duty upon the person in control of premises to exercise reasonable and ordinary care under the circumstances not to cause injury to an invitee. The declaration further alleges that the defendant, while cleaning an outboard motor with gasoline, or some other highly volatile substance, left such substance lying about the room in an open container and caused the outboard motor to give off sparks and ignite the substance. The declaration further alleges that plaintiff sustained injuries as a proximate result of this conduct on the part of the defendant.

We conclude that, when given a fair and natural construction, the averments of the declaration are sufficient to state a cause of action for negligence. The declaration alleges sufficient ultimate facts to justify a finding that the defendant owed a duty to exercise reasonable and ordinary care not to cause injury to the plaintiff, that he breached this duty by causing the outboard motor to give off sparks at a time when he was using a highly volatile substance on the motor and had this substance in an open container in the room, thus causing the substance to become ignited and cause plaintiff's injuries.

This leaves the question of whether or not the declaration shows proximate contributory negligence of the part of the plaintiff as a matter of law. In this connection, plaintiff, in his brief, relies upon the 'sudden emergency doctrine' and upon the 'rescue doctrine'.

In Railroad Co. v. Ridley, 114 Tenn. 727, 86 S.W. 606, the plaintiff's decedent was killed by a moving...