Smartt v. Fleming

• Decision Date: 25 February 1972
• Citation: Smartt v. Fleming, 481 S.W.2d 774 (Tenn. App. 1972)
• Parties: Joe H. SMARTT, a minor, etc., Plaintiff-Appellant, v. George R. FLEMING et al., Defendants-Appellees. Joe D. SMARTT, Plaintiff-Appellant, v. George R. FLEMING et al., Defendants-Appellees.
• Court: Tennessee Court of Appeals

Page 774

481 S.W.2d 774

Joe H. SMARTT, a minor, etc., Plaintiff-Appellant, v. George R. FLEMING et al., Defendants-Appellees.

Joe D. SMARTT, Plaintiff-Appellant, v. George R. FLEMING et al., Defendants-Appellees.

Court of Appeals of Tennessee, Middle Section.

Feb. 25, 1972 Certiorari Denied by Supreme Court June 5, 1972.

Frank J. Runyon, Clarksville, Thomas A. Higgins, Nashville, for plaintiffs-appellants.

W. A. Moody, of Branstetter, Moody & Kilgore, Nashville, for defendant-appellee, Joe A. Winn.

Richard H. Batson, of Daniel, Harvill, Batson & Nolan, Clarksville, for defendant-appellee Bd. of Education.

OPINION

PURYEAR, Judge.

There two consolidated cases arose out of an accident which occurred in the Clarksville-Montgomery County Area Technical School, as a result of which the plaintiff, Joe H. Smartt, then nineteen years of age, sustained a serious injury to his left hand so that portions of his hand had to be amputated.

The defendants, George R. Fleming, James C. Cunningham, Halbert Harvill, Wayne Cross, Bryon Norfleet and Owen Petrie, are members of the Board of Education of the Clarksville-Montgomery County Unified School System and are sued as such. The defendant, Joe A. Winn, is a teacher employed be said School System and he is sued individually.

The suit filed by the plaintiff, Joe H. Smartt, is for damages for personal injuries and the suit filed by his father, Joe D. Smartt, is for loss of services and medical expenses.

The declarations in both cases contain substantially the same averments regarding the way and manner in which the accident occurred, there being only one count in the declaration filed by the son and two counts in the declaration filed by the father.

In the second count of his declaration, the father sues for the use and benefit of the United States of America for medical expenses incurred by the United States of America on behalf of Joe H. Smartt in a Military Hospital pursuant to an Act of Congress known as the Medical Care Recovery Act.

The first declarations filed in each case were withdrawn and plaintiffs obtained leave of the Court to file amended and substituted declarations and it was upon these latter mentioned declarations and the pleas thereto that said suits were tired.

The declarations were filed on December 30, 1970, and on that date the trial Court entered the following order in each case:

'This case came on to be heard on the motions of the plaintiff to be permitted to file an amended and substituted declaration, and to require the defendants to plead their defenses specially; and, on the motion of the defendant school system for the purpose of admitting the allegations in the amended and substituted declaration concerning the existence of such insurance coverage and to strike the same from the declaration and prohibiting any reference to the same before the jury, statement of counsel, and the entire record, from all of which it appears that the various motions should be granted.

It is, therefore, ORDERED and ADJUDGED:

1. That the plaintiff be and hereby is permitted to file an amended and substituted declaration.

2. That the defendants be and hereby are required to plead their defenses specially and to file the same on or before January 20, 1971.

3. That all allegations in the amended and substituted declaration pertaining to the existence of insurance coverage, the same having been admitted fully by the defendant school system, be and hereby are stricken and no reference to the same shall be made at the trial of this case before the jury. To the foregoing action of the Court the plaintiff respectfully excepts.' (Tech. Rec. pp. 9, 10)

The declarations in both cases aver that the accident occurred as result of an explosion on April 15, 1969, at the Clarksville-Montgomery County Area Technical School in which the son, Joe H. Smartt, was a student at the time.

Said declarations also contain the following averment:

'At the time of the matters and things complained of in this law suit, the Clarksville-Montgomery County Unified School System had obtained a public liability insurance policy for the purpose of providing insurance coverage and protection against such things as the matters and things complained of in this law suit and for this reason and to the extent of the policy limits any immunity possessed by the school system has been waived. The insurance policy was issued by Transamerica Insurance Company being Policy No. 36 GLA 32--466--41, in effect on the date of the accident complained of in this lawsuit affording limits of protection to the school system in the amount of $100,000.00.' (Tech. Rec. pp. 11, 12)

Both declarations contain averments to the effect that the defendant, Joe A. Winn, was guilty of various acts of negligence which proximately caused the explosion and injury; that the said Joe A. Winn was, at the time thereof, acting as an agent and employee of the defendant, Board of Education, and for whose negligence and said Board of Education is liable.

The declarations also contain an averment to the effect that the defendant, Board of Education, was guilty of gross negligence by placing a man in charge of a course requiring use of and experimentation with inherently dangerous objects when said instructor did not have the formal qualifications and knowledge to take the proper safeguards and precautions.

Pursuant to the order of the Court hereinabove set forth, the Board of Education filed a special plea in each case denying allegations of negligence set forth in the declarations and alleging that the said Joe H. Smartt, who was injured, was guilty of negligence which proximately caused or contributed to the accident resulting in injury to him.

In said plea, the Board of Education did not rely upon the defense of governmental immunity and filed no other plea relying upon that defense.

The cases were consolidated and tried together before the trial judge and a jury, as a result of which the jury found in favor of the defendants in both cases and the trial Court dismissed said cases.

Thereafter, plaintiffs filed a motion for new trial in each case, which motions were overruled, and these appeals resulted.

Plaintiffs have filed three assignments of error, the first of which is as follows:

'The Trial Court erred in striking all of the allegations in the amended and substituted declarations pertaining to the existence of insurance coverage and in ordering that no reference to the same should be made at the trial of the case before the jury.'

In order to properly consider and discuss this assignment it is necessary for us to give a brief summary of the facts of the case and the conflicting theories of the parties.

In April, 1969, and for some time prior thereto the Board of Education of Clarksville-Montgomery County Unified School System operated an area technical school in Clarksville, Montgomery County, Tennessee.

The defendant, Joe A. Winn, was one of the teachers in such school and at the time of the events involved herein he was teaching a class in 'Power Mechanics', which included instructions about large engines, jet propulsion rockets and gas turbines propelled by various forms of fuel and other energy sources and the only two students in the class at that time were the plaintiff, Joe H. Smartt, then nineteen years of age, and one Mike Ellis, who was apparently about the same age.

On or about Friday, April 11, 1969, Smartt and Ellis listened to a lecture on the background of rockets and energy sources used to propel rockets and the development of rocket engines. As a part of this course defendant, Winn, demonstrated chemical fuel used as the original source of energy for early forms of rocket engines. As a part of the demonstration a piece of straight metal pipe was closed at one end to be used as a crude prototype of a rocket engine.

Under the guidance and instruction of Winn, the students, Smartt and Ellis, made some black powder by mixing certain designated proportions of potassium nitrate, powdered sulphur and powdered charcoal and poured it into the metal pipe. They then poured some oil in the mixture so as to make a pasty substance of it, after which they used a screwdriver or a round file for the purpose of spreading this pasty mixture on the inside perimeter of the metal pipe.

After this was done, the prototype rocket was placed upon the ground and ignited, as a result of which flame and smoke shot out from the open end of the pipe, but Smartt and Ellis were disappointed with the Demonstration because the pipe failed to move as a result of the power thrust.

Therefore, on another day, shortly thereafter, Smartt and Ellis made two more crude prototypes of a rocket under the guidance and supervision of Winn and these prototypes were ignited, but with the same disappointing results in that the pipe failed to move.

Within a short time thereafter, Smartt and Ellis, proceeded to make another prototype rocket, but without the consent or knowledge of Winn or any other teacher in the school, they substituted potassium chlorate for potassium nitrate in making the black powder, since they had been informed that potassium chlorate would provide more power than potassium nitrate.

Smartt was holding the tube of this fourth prototype rocket in his left hand and spreading the pasty black powder around the inside perimeter of the tube with either a file or screwdriver when the tube exploded, thereby seriously injuring his left hand.

Upon trial of the case it was the theory of plaintiffs that after the disappointing demonstrations were held, Smartt and Ellis asked one James Major, a chemistry teacher in the school, if a more powerful fuel for the rocket could be made and that, in the presence of defendant, Winn, Mr. Major told Smartt and Ellis that the use of potassium chlorate instead of potassium nitrate would produce a more powerful thrust; that Smartt and Ellis, under the supervision of defendant, Winn, then proceeded...