Trailmobile, Inc. v. Chazen

• Decision Date: 12 March 1963
• Citation: 370 S.W.2d 840,51 Tenn.App. 576
• Parties: TRAILMOBILE INC., Plaintiff in Error, v. Phillip CHAZEN et al., Defendants in Error.
• Court: Tennessee Court of Appeals

Page 840

370 S.W.2d 840

51 Tenn.App. 576

TRAILMOBILE INC., Plaintiff in Error, v. Phillip CHAZEN et al., Defendants in Error.

Court of Appeals of Tennessee, Eastern Section.

March 12, 1963.

Certiorari Denied by Supreme Court Sept. 11, 1963.

[51 TENNAPP 577] Fowler, Rowntree & Fowler, Knoxville, for plaintiff in error.

Hodges, Doughty & Carson, Knoxville, for defendants in error.

McAMIS, Presiding Judge.

Plaintiff in error has filed a petition to rehear our previous action in striking the assignments of error because not filed within the time allowed by the rules and extensions of time granted by a member of the Court.

The petition to rehear which is sworn to reveals certain extenuating circumstances, particularly the appointment on November 2, 1962, of the attorney who represented plaintiff in error in the Circuit Court as Law Director of the City of Knoxville. Without elaborating on the circumstances, the Court is constrained to grant the petition to rehear, set aside the judgment heretofore entered and determine the case on its merits.

Phillip Chazen and wife instituted this suit against Trailmobile, Incorporated, to recover the sum of $12,500.00 for the loss by fire of a building owned by plaintiffs [51 TENNAPP 578] while occupied by defendant Trailmobile, Inc. under lease contract, a copy of which was exhibited with the declaration.

There were two trials before the Court and jury. The first trial resulted in a verdict for defendant which was set aside and a new trial granted because of misconduct of the jury during its deliberations in that one or more of the jurors made statements as to the proper manner of operating welders. The second trial resulted in a verdict and judgment for $12,500.00 from which defendant prosecutes the present appeal.

The declaration is in two counts. The first count sounding in tort charges that the building was destroyed as the result of a fire caused by the wilful and negligent act of one of defendant's employees engaged in using an acetylene welder. The second count is predicated on an alleged breach of a covenant of the lease requiring defendant, subject to certain excepted contingencies, to return the property to the lessors in good condition at the end of the term. A nonsuit was taken as to the second count following the first trial and it need not be further noticed.

Pursuant to an order of the Court requiring it to plead its defenses specially, defendant filed, among others, its special plea Number 4 asserting that plaintiffs, Chazen and wife, waived the right to sue defendant, as lessee, for loss of the building by fire under the following provision of the lease:

'The Lessors waive all right of recovery against the Lessee for any loss occurring to the demised pemises resulting from fire and the perils of windstorm, hail, explosion, riot, riot attending a strike, civil commotion, [51 TENNAPP 579] aircraft and smoke; and the Lessee likewise waives all right of recovery against the Lessors for any similar loss or losses occurring to any property of the Lessee in the demised premises.'

Defendant filed as exhibits to the plea certain letters which it averred amounted to an amendment of the original lease contract as further evidence that plaintiffs waived the right to sue for loss of the building by fire.

To this plea plaintiffs filed a demurrer on the following ground:

'The provision of the lease agreement whereby the lessor waives all right of recovery against the lessee for any loss occurring to the demised premises resulting from fire, is illegal, void, invalid, and unenforceable, as against public policy, which prohibits one from contracting against liability for his own negligence * * *.'

We consider first defendant's assignment number one directed to the action of the Court in sustaining the demurrer to its special plea Number 4 above mentioned.

We have a number of reported decisions in this State dealing with considerations of public policy relating to exculpatory provisions of contracts. Until Moss v. Fortune, 207 Tenn. 426, 340 S.W.2d 902, hereinafter discussed, there appears to have been some uncertainty as to the validity of such contracts and whether they are to be strictly construed as a matter of public policy.

Robinson et al. v. Tate, 34 Tenn.App. 215, 236 S.W.2d 445, dealt with the liability of a landlord for damages to the tenant's merchandise caused by steam escaping from a defective valve. The defendant lessor relied [51 TENNAPP 580] upon a provision of the lease that 'the lessee accepts space as is'. The evidence showed that the lessor was aware of the defect at the time of the letting and that plaintiff was not. This Court in an opinion by Judge Swepston found that the evidence justified a finding of negligence but said:

'We hold, therefore, that the contract for exemption from liability for negligence is valid.

'It is said in argument, and the above cited authorities so state, that such agreements are to be construed strictly. 32 Am.Jur. 615, Section 739.

'While many of the cases found in the books seem to go beyond the limit of reasonable construction, we think a court should not deliberately emasculate a contract. The better approach is to attempt to arrive at the real intention of the parties in the light of the language used and in view of the subject matter and circumstances of the execution of the contract. Tennessee has long ago adopted this approach and all rules of technical construction of instruments must yield to the intention of the parties.

'In Memphis & Charleston R. R. Co. v. Jones, 39 Tenn. 517, the contract for the hiring of slaves provided: 'And all risks incurred, or liability to accidents, while in said service, is compensated for and covered by the pay agreed upon; the said railroad company assuming no responsibility for damages from accident, or any cause whatever.' Held, railroad not exempt from liability for wilful and gross negligence in running over a slave who was asleep on the track in plain view for a long distance ahead of the train. The court construed it according to the obvious intention and understanding of the parties.

[51 TENNAPP 581] 'And so in Dodge v. Nashville, C. & St. L. Ry., 142 Tenn. 20, 215 S.W. 274, 7 A.L.R. 1229, the baggage check case with the limitation of liability printed on the back and no notice on the face or otherwise, where it was held, not binding. The customer had no reason to consider it anything more than an identification check.

'In Carolina [C. & O.] Ry. Co. v. Unaka Spring[s] Lumber Co., 130 Tenn. 354, 170 S.W. 591, 597, supra, it was contended that the stipulation exempted the railroad from fires set by locomotives on the main track as well as on the plaintiff's spur track.

'Our Court said: 'We think that, under a fair construction of the language used,' the exemption was confined to fires emanating from locomotives, etc. on the spur track--the subject of the contract.'

Bishop v. Associated Transport, Inc., 46 Tenn.App. 644, 332 S.W.2d 696, was a suit by a lessor against the lessee for destruction of the leased building by fire. The lease contract required the lessee to return the premises to the lessor 'in a reasonably good state of repair, ordinary wear and tear and damages by fire * * *, however, specifically excepted.'

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