Swauger v. Haury & Smith Contractors, Inc.

• Decision Date: 20 May 1974
• Citation: 512 S.W.2d 261
• Court: Tennessee Supreme Court
• Parties: John C. SWAUGER and Margaret P. Swauger, Plaintiffs-Appellants, v. HAURY & SMITH CONTRACTORS, INC., Defendant-Appellee.

Page 261

512 S.W.2d 261

John C. SWAUGER and Margaret P. Swauger, Plaintiffs-Appellants, v. HAURY & SMITH CONTRACTORS, INC., Defendant-Appellee.

Supreme Court of Tennessee.

May 20, 1974.

Jacobs H. Doyle, John B. Wilkes, Nashville, for plaintiffs-appellants.

Charles H. Warfield, Farris, Warfield & Samuels, Nashville, for defendant-appellee.

OPINION

FONES, Justice.

Direct appeal was taken to this Court by the plaintiffs below, John and Margaret Swauger, from the dismissal of their complaint as barred by the statute of limitations contained in T.C.A. § 28--304. Said dismissal was the single error assigned in this Court.

For the purpose of ruling on the validity of such dismissal, the allegations of the complaint will be taken as true. Appellants allege that they contracted to purchase a home from Haury and Smith Contractors, Inc., appellee, on June 7, 1969, and received their deed on July 15, 1969. A Certificate of Guarantee was given the appellants, whereby appellee guaranteed the house for one year against defective material and incompetent workmanship. That Certificate recites

'We are not liable under this agreement on Septic Tanks and overflows unless faulty workmanship is proven.'

Appellants alleged that shortly after their occupancy of the home they noticed a 'sewer odor' in the basement of the home and complained to various members of the appellee corporation. By November, 1969, it is further alleged, appellants noticed raw sewage at the base of the basement wall.

In April of 1970, the County Health Department ordered appellants to correct the situation, which notification appellants forwarded to appellee. Apparently, as a result thereof, appellee undertook, in May, 1970, to dig a well to correct the problems. The Health Department intervened to point out that such a well was illegal.

Neither the complaint nor the answer reveals any occurrences between May, 1970, and April, 1971, at which time appellants allege that they talked with appellee's vice-president, who refused to do anything further toward correcting the sewage problem, including refusing to fill up the well as he had promised.

Having been notified by the County Attorney that legal proceedings would be initiated against them if they failed to remedy the problem, appellants, in August, 1971, procured a concern to make necessary repairs on the septic tank and overflow field and

'learned for the first time that the problems were the result of faulty workmanship on the part of the defendant.'

The final paragraph of the Complaint is of importance:

'As a result of the faulty workmanship of the defendant, the plaintiffs have been severely damaged and have paid out costs for repairs on the faulty overflow field, have had to pay for the costs of landscaping, have suffered inconvenience and loss of enjoyment of their home for a period of two years.'

Appellants filed this suit on November 29, 1971.

Appellee relies upon several cases of this Court as authority for the proposition that whenever a case involved injuries to the person, T.C.A. § 28--304 is applicable, notwithstanding the presence of other non-personal injuries, such as property damage. The Court is cited to Carney v. Smith, 222 Tenn. 472, 437 S.W.2d 246 (1969); Brown v. Dunstan, 219 Tenn. 291, 409 S.W.2d 365 (1966), and Bland v. Smith, 197 Tenn. 683, 277 S.W.2d 377 (1965). A careful reading of these cases compels the conclusion that they stand instead for the proposition that the applicable statute of limitations in a particular cause will be determined according to the gravamen of the complaint.

In Brown v. Dunstan, supra, for example, the Court held the cause of action governed by T.C.A. § 28--304 in the following language:

'The trial judge cited the case of Bland v. Smith (citation). The Bland case holds In determining the real purpose of a suit the Court must look to the basis for which damages are sought. In the case at bar A substantial part of the recovery sought is for damages done to plaintiff's reputation as a businessman; father and respected man of society; humiliation, etc. These rights, so alleged to be damaged,...