Smith v. Tucker

• Decision Date: 16 March 1925
• Citation: 270 S.W. 66
• Parties: SMITH v. TUCKER (two cases).
• Court: Tennessee Supreme Court

Page 66

270 S.W. 66

SMITH v. TUCKER (two cases).

Supreme Court of Tennessee.

March 16, 1925.

Certiorari to Court of Civil Appeals.

Two suits by L. O. Smith, one in his individual capacity and one as administrator, against C. L. Tucker. From judgments for defendant, affirmed in the Court of Civil Appeals, plaintiff brings certiorari. Affirmed.

Fitzhugh, Murrah & Fitzhugh, of Memphis, for plaintiff.

Wilson, Gates & Armstrong, of Memphis, for defendant.

MALONE, Special Judge.

These two suits, heard together in the trial court and in the Court of Civil Appeals, are based on the alleged wrongful killing of the infant son of the plaintiff in error. The first suit is brought by Smith for loss of services, and the second suit in his character as administrator.

The trial judge sustained a motion for peremptory instructions in each case, and the Court of Civil Appeals, in a majority opinion delivered by the late Chief Justice Wilson, affirmed the judgments. Both parties bring the cases here by certiorari, the plaintiff in error on the ground that the suits were improperly dismissed, the defendant in error on the ground that the Court of Civil Appeals failed to sustain the defense of contributory negligence.

The questions involved appear to be not only of first impression here, but the diligence of counsel has not furnished the court, nor has the court found, any authority from any jurisdiction in point.

Briefly stated, the insistence of the plaintiff in error is that the doctrine of the "Willcox Cases" (Hines v. Willcox [1895] 96 Tenn. 148, 33 S. W. 914, 34 L. R. A. 824, 54 Am. St. Rep. 823, and Stenberg v. Willcox [1895] 96 Tenn. 163, 33 S. W. 917, 34 L. R. A. 615; same cases 100 Tenn. 524, 45 S. W. 781, 66 Am. St. Rep. 761, and 100 Tenn. 538, 46 S. W. 297, 41 L. R. A. 278, 66 Am. St. Rep. 770; and Cotton Press & Storage Co. v. Miller [1916] 135 Tenn. 187, 186 S. W. 87, L. R. A. 1916F, 1139) may and should be extended to the relation of vendor and purchaser.

The petitions of the respective parties (who will be styled as they were in the court below) raise these essential questions:

(a) Was there a breach of duty on the part of the defendant, Tucker, which makes him liable in damages to the plaintiff, Smith, as administrator, on account of the child's death?

(b) If liability would otherwise exist, is the plaintiff precluded from recovery by contributory negligence?

(c) Was the father's suit for loss of services properly dismissed?

First. As to the suit brought by the father as administrator:

As previously stated, the record in this case presents a novel and perplexing question, on which no direct authority in this state, or from other jurisdictions, has been found, either by counsel or by the court. We must, therefore, undertake to work out the rights of the parties in the light of existing decisions and principles.

(1) The essential part of the declaration (omitting matters of inducement, etc.), is as follows:

"Plaintiff, as administrator of the estate of his infant child, Lee Omus Smith, Jr., deceased, sues the defendant, C. L. Tucker, for $25,000 damages, and for cause of action states that during the latter part of October, 1920, plaintiff's wife, Mrs. L. O. Smith, purchased from the defendant a residence located at 1123 Forrest avenue in the city of Memphis, and plaintiff and his family moved into the premises on or about the 1st day of November, 1920, and that about two weeks thereafter a warranty deed to said place was delivered by the defendant to plaintiff's wife. Plaintiff avers that the said premises were new, having just been constructed by the defendant, and plaintiff avers that they were purchased to be used as their future home.

"Plaintiff further avers that, at the time of the purchase of said premises, defendant agreed that said house was in first-class condition, but agreed that if same were found to require any additional work or repairs, the same would be promptly done. Plaintiff relying upon the assurances and warranties hereinbefore mentioned. moved his family into said newly acquired home, believing at the time that same was in a first-class condition, and that it was in all respects safe and habitable and free from dangerous defects of any kind.

"Plaintiff further avers that after he and his family had lived in the home a short time he noticed that the mantel in the dining room of said home had pulled away to a slight extent from the wall, and plaintiff, believing at the time that this was caused by the heat or the settling of the house, called defendant's attention to same, and defendant thereupon agreed that he would inspect said mantel and have it fixed, and plaintiff avers that on that same afternoon defendant's agent and representative came out, examined the mantel, and assured plaintiff's wife that there was absolutely no danger in it, and that he would have it fixed promptly.

"Plaintiff avers that this condition of the mantel was called directly to the attention of the defendant, and positive assurances were given him that the defect would be remedied. Plaintiff avers that defendant's attention was first called to the condition of said mantel at least a week or 10 days prior to the 28th of November, 1920. Plaintiff avers that on Sunday morning, November 28, 1920, at about 10 o'clock plaintiff's intestate, his little boy 2½ years old, was in the dining room with his mother while the latter was engaged in her household duties, and while the child's mother had her back turned to the mantel, which was quite heavy and composed of brick with a concrete slab on top of it, the said mantel suddenly and without warning of any kind fell from the wall and on plaintiff's intestate, horribly crushing the child's chest and head, which injuries caused its death.

"Plaintiff avers that he and his wife not only did not know, but could not have known by the exercise of reasonable care and caution, the dangerous condition of said mantel, but plaintiff avers that the defendant did have knowledge of its dangerous condition; defendant not only failed to warn plaintiff as to the danger, but on the other hand assured plaintiff that the mantel was safe, and that there was no danger to plaintiff's family.

"Plaintiff avers therefore that defendant was grossly negligent in selling a home which was improperly constructed, and that contained a heavy mantel which was in a dangerous and defective condition at the time, which fact was known to the defendant and unknown to plaintiff or his family. Plaintiff avers further that defendant was grossly negligent in failing and refusing to repair said mantel and put it in a safe condition after his attention was directed to the defects therein. Plaintiff avers that said mantel was negligently and carelessly constructed in that the so-called mortar or other substance which was supposed to hold the heavy brick mantel to the wall, contained little or no cement but was of some substance which crumbled like dirt, and had no cohesive strength to it whatever.

"Plaintiff further avers that there was nothing to hold said mantel to the wall in the was of bolts or other support. Plaintiff avers that it was the duty of the defendant to see to it that said mantel was properly and securely fastened to the wall, but, failing in this duty, defendant knowingly, carelessly, and negligently permitted said mantel to be constructed of inferior material and to be left in a dangerous and defective condition, and that he sold said home with full knowledge that said mantel was improperly constructed and was dangerous to human life, and plaintiff avers that the defendant allowed said dangerous defect to remain and continue even after his attention was directed to same. Plaintiff avers, therefore, that the several acts of negligence complained of herein directly and proximately caused the injuries and death of plaintiff's intestate."

As will be noted, the declaration presents the following theories of liability:

(a) That defendant was negligent in selling plaintiff a home improperly constructed, in that it contained a heavy mantel in a dangerous and defective condition at the time, which fact was known to defendant, and unknown to plaintiff and his family.

(b) That defendant failed to warn plaintiff of this danger.

(c) That defendant, through his agent and representative, examined the mantel and assured plaintiff that the mantel was safe, and that there was no danger to plaintiff's family.

(d) That defendant was negligent in failing and refusing to repair said mantel, and put it in safe condition after his attention was directed thereto; defendant having agreed and warranted at the time of the purchase that the house was in first-class condition, but that if same should be found to require additional work or repairs, the same would be promptly furnished by the defendant.

To this declaration the defendant pleaded not guilty, and contributory negligence.

(2) Viewed in the most favorable light for the plaintiff (Wildman Mfg. Co. v. Davenport Hosiery Mills [1922] 147 Tenn. 551, 556, 557, 249 S. W. 984), the evidence may be stated as follows:

The defendant, Tucker, had built, through E. B. Scott, a contractor of Memphis, Tenn., four bungalows on Forrest avenue in that city.

Under date of October 25, 1920, plaintiff entered into a written contract of sale for one of these houses. The contract provided that conveyance should be made "to L. O. Smith or any person he may name."

Thereafter, Smith directed that deed be made to his wife, which was accordingly done. It bore date October 5, 1920, and was recorded October 28, 1920.

Plaintiff and his family moved into the house about November 1, 1920.

The written contract of sale, above mentioned, was made in the presence of the defendant, Tucker, and at the time of making this contract, and as an inducement thereto, a parol contemporaneous agreement was made between defendant Tucker and plaintiff Smith, by the terms of which...