Smith v. Bank of Commerce & Trust Co.

• Decision Date: 03 June 1916
• Citation: 186 S.W. 465,135 Tenn. 398
• Parties: SMITH v. BANK OF COMMERCE & TRUST CO.
• Court: Tennessee Supreme Court

186 S.W. 465

135 Tenn. 398

SMITH v. BANK OF COMMERCE & TRUST CO.

Supreme Court of Tennessee.

June 3, 1916

Certiorari to Court of Civil Appeals.

Action by Mrs. Nell Smith against the Bank of Commerce & Trust Company. Certiorari to review action of Court of Appeals affirming judgment for defendant on peremptory instructions. Affirmed.

H. H Bonner, of Starkville, Miss., and Bell, Terry & Bell, of Memphis, for plaintiff in error.

R. P Cary and Wm. M. Hall, both of Memphis for defendant in error.

GHOLSEN Special Judge.

This suit was brought by the plaintiff, Mrs. Nell Smith, against the Consolidated Engineering Company, the E. W. Minter Company, and the Bank of Commerce & Trust Company hereinafter called the bank, for damages sustained by her on May 9, 1913, while on the street in front of a building that was being erected for the bank. On March 20, 1913, a contract was made between the said engineering company and the bank as owner, by which the former agreed to construct an annex for the latter and to repair and remodel the old building, on the lot of said bank in the city of Memphis. The defendant engineering company sublet to the defendant E. W. Minter Company a portion of the construction work. The new building was to be 15 stories high and to be erected on the north side of and adjoining the large bank and office building then owned and occupied by the defendant bank. It was on the most traveled business street in the city of Memphis. Section 9 of said contract is as follows:

"The contractor will, at his own expense, protect, in a suitable manner, the work and ground, so as to avoid any injury to the property of adjacent owners or of others and damage to their persons or employés or any other persons. The contractor will be responsible for all damage of every nature whatsoever done to persons or property during the progress of the work, and occasioned by its own acts or neglect, or that of any of its subcontractors, foremen, laborers or other employés or agents, and shall have executed and maintained in force bonds as provided in the specifications.

Should there be any unsatisfied claims for damages to persons or property at the time when final estimate for doing the work is made and returned, the owner shall have the right to retain an amount sufficient to cover any such claims for its own indemnity until the same have been fully disposed of or adjusted by the contractor."

Another provision of the contract was that the work should be under the personal supervision of the contractor and the contract should not be assigned, without the written consent of the owner; and should any portion of the work be let to subcontractors the contractor covenanted that such subcontractors should be responsible, capable, and reputable persons, and the contractor should remain responsible for the performance of the work, notwithstanding any subcontract.

It was agreed that the defendant E. W. Minter Company did all the steel framework under said contract. Therefore the act which caused the injury to plaintiff was that of the said E. W. Minter Company, or some of its employés.

A shed, 10 or 15 feet wide, covered with heavy solid timber, was erected extending entirely over the sidewalk, all the way in front of the building that was in process of erection. The plaintiff had previously passed under this shed nearly every day. On May 9, 1913, while she was walking on the street in front of the building, and not under the shed, she was struck on the head by a red hot bolt or rivet, severely, and apparently, permanently injured, from which she has suffered great pain.

The declaration, among other things, averred that while said engineering company and said Minter Company were engaged in erecting the steel framework of the building, it was their habit and custom to have the bolts or rivets heated to a red or white heat, and thrown by one employé of said defendants to another employê, who was expected to catch them in a bucket or receptacle, and then to be used. That said work, and the manner in which it was done, was unusual, extremely and intrinsically dangerous to pedestrians on the street below; that the defendants failed to take necessary and reasonable precautions to prevent accidents; that the manner of doing the work was exceedingly dangerous; and that it was the duty of the bank as owner to protect the traveling public from injury by reason thereof. The declaration does not contain any specific averment that the bank knew of the alleged dangerous manner in which this work was being conducted, nor wherein or how it had failed to take the necessary precautions, or was derelict, or what could have been done that was not actually done.

Said engineering company and the bank filed a joint plea of the general issue, and the E. W. Minter Company filed two pleas consisting of the general issue and contributory negligence.

On February 20, 1914, the action was dismissed as to the Minter Company. It seems that plaintiff settled with the latter under a contract with covenants not to sue. On February 25, 1914, a verdict was rendered in favor of the Consolidated Engineering Company upon its motion for peremptory instructions. There was no exception taken by the plaintiff to this. There was a mistrial as to the defendant bank. Upon the second trial peremptory instructions were given by the court in favor of the bank, to which the plaintiff excepted, prayed, and was granted an appeal to the Court of Civil Appeals. That court, in a well-considered and able opinion by Mr. Justice Moore, affirmed the action of the circuit judge. The petition for certiorari was heretofore granted. It was argued and able and elaborate briefs have been filed for both sides.

It is seriously and earnestly insisted by counsel for the plaintiff that the bank as owner of the property is liable, and that it was error in the Court of Civil Appeals in not reversing and remanding the case. The several assignments of error in substance are, that the erection of this high building upon the most populous, most used, and most important business street in the city of Memphis, immediately abutting and adjoining the sidewalk, was intrinsically dangerous to users of the highway unless due care to prevent injury was used, and that it was the duty of the bank, to the public, as the owner of the property, to have the work done in a cautious, careful, and prudent manner, to minimize as much as possible the inconvenience, annoyance, and danger, and this duty it could not delegate to an independent contractor so as to relieve itself of liability.

It appears that on the day plaintiff was injured, the steel framework of the new building was up to the eleventh or twelfth floor; that two or three men at a little forge would heat the rivets to a red or white heat, and by means of a pair of tongs would throw them to a man with an air hammer, and the latter would catch them in a bucket; they would throw the rivets from 5 to possibly 25 feet. The rivets were then being heated on the eighth floor and the man catching them was on the sixth or seventh floor at the northwest corner. The forge was situated back from the front about 25 feet, near the middle of the building, which was 25 or 30 feet wide. They would use an ordinary tin bucket in catching the rivets, putting a piece of wood in the bottom of the bucket about 3 inches wide to stop the rivets and to keep the bottom of the bucket from being knocked out. Sometimes a rivet would strike the tin in the bottom of the bucket and bounce out. Sometimes the bucket would be old and the rivets would go through it, and sometimes the man with the bucket would miss the rivets. The witness who detailed this method of handling the rivets stated that on the afternoon plaintiff was hurt he noticed that the man, who was catching the rivets in the bucket, missed one of them and that it fell down in the street; that he afterwards looked out of the front window and saw a great crowd gathering in the street; that before he got down there, the lady, who was evidently the plaintiff, was carried to the elevator and taken to a doctor's office. While this witness did not state that this method of handling the rivets was usual and customary, yet it is fairly inferable from his testimony. It is not shown that at any other time had a rivet gone into the street or had even fallen outside the walls of the building in front and upon the covering over the sidewalk. It is not controverted that the instance detailed above, when the man failed to catch the rivet and it went out into the street, was the occasion when the plaintiff was injured.

It is not disputed that the E. W. Minter Company was an independent contractor at the time the...