W. E. Stephens Mfg. Co., Inc. v. Buntin
| Decision Date | 22 January 1944 |
| Citation | 181 S.W.2d 634,27 Tenn.App. 411 |
| Parties | W. E. STEPHENS MFG. CO., Inc., et al. v. BUNTIN et al. |
| Court | Tennessee Court of Appeals |
Certiorari Denied by Supreme Court July 1, 1944.
Appeal from Circuit Court, Davidson County; Richard P. Dews, Judge.
Suit by W. E. Stephens Manufacturing Company and another against Mrs Jane Berry Buntin and another to recover for damages to plaintiff's property allegedly resulting from the negligence of one employed to remove equipment in building owned by defendants and occupied by plaintiff as lessee. The trial judge granted defendants' motion to dismiss the suit, and plaintiffs appeal.
Affirmed.
Thomas G. Watkins, of Nashville, for appellants.
Bass Berry & Sims and Hume, Howard, Davis & Gale, all of Nashville, for appellees.
This is a suit by the W. E. Stephens Manufacturing Company and the National Union Fire Insurance Company against Mrs. Jane Berry Buntin and Mrs. Elizabeth Sinclair Buntin, the owners of the two buildings, joined together and used as one, at 306 and 308 Second Avenue North in Nashville, which had been leased by the plaintiff Stephens Manufacturing Company by a written contract for a term of years beginning January 1, 1942. The property leased by said plaintiff was to be used for a shirt and overall factory and warehouse and the suit was for damages resulting to the property of the plaintiff Stephens Manufacturing Company, when the purchaser of a metal tank and supporting I-Beams, formerly used in connection with the automatic sprinkler system in these buildings was removing same from the buildings. The workmen while lowering one of the I-Beams which had supported the water tank through an elevator well hole, permitted it to strike one of the sprinkler system supply pipes, breaking it and causing quantities of water to be released in the building, and before the proper valve could be closed this water caused damage to the merchandise and other property of plaintiff Stephens Manufacturing Company. This damage was covered by an insurance policy issued by the plaintiff National Union Fire Insurance Company and this company settled plaintiff Stephens Manufacturing Company's claim by paying to it the sum sued for and this suit was brought for the use and benefit of the Insurance Company.
The first count in the declaration alleges a breach of the covenant of quiet enjoyment in the lease contract and hence the right of plaintiff to recover.
The second count of the declaration is based upon the allegations of negligence on the part of the defendants in permitting inexperienced men to use unsound equipment in removing this tank and I-Beams, in that one of the ropes used in so doing was worn and not of sufficient strength to hold the beam being removed and the third count alleged negligence in allowing the purchaser of the tank and I-Beams to use inexperienced men and defective equipment in doing this work.
The defendant Jane Berry Buntin pleaded that she had acquired the building owned by her by inheritance from her husband and had no interest in the adjoining building in and upon which the tank and I-Beams were located, or in this tank and the I-Beams, and did not know of the removal or intended removal of same prior to the claim made by plaintiffs, that she was not a party to any agreement to have same removed and did not authorize any one to act for her in connection therewith and that the removal of the I-Beams was made by an independent contractor with direct permission of the plaintiff Stephens Manufacturing Company. It was also pleaded that the plaintiff was estopped to complain against her as its claim, if any, was against the independent contractor who was engaged in such removal. The defendant Elizabeth Sinclair Buntin pleaded the general issue.
Upon the trial of the case at the conclusion of the plaintiff's proof the Circuit Judge granted a motion to dismiss the suit made by the defendants.
The suit was dismissed and the plaintiffs have appealed in error to this Court and have filed thirty one assignments of error which will not be discussed separately.
The record discloses that during the term of the lease the real estate agent who had negotiated the lease for the owners, notified the Stephens Manufacturing Company that the unused tank and beams supporting it had been sold by the owner. Later the authorized representative of the plaintiff Stephens Manufacturing Company granted to a Mr. Lefkovitz permission to enter the property for the purpose of removing this tank and supporting beams and Lefkovitz with his men proceeded to remove them and while doing so a rope broke, causing an I-Beam to strike the water pipe and break it and this caused the damage complained of. No claim was made against the owners until some time after the plaintiff Insurance Company had settled the loss with Stephens Manufacturing Company.
It is not established by the record that the real estate agent had any authority from the owners other than that implied from the fact that he was the rental agent who negotiated the lease. Nor is it established from the record that the agent had any connection with the removal of the tank and supports other than to notify the plaintiff Stephens Manufacturing Company that they had been sold. The purchaser secured permission from the tenant to enter the premises and remove the property he had bought. It is also not established by the record that the agent or the owners knew anything whatever about the insecurity of the rope or other equipment used in the removal or the experience or lack of experience of the men doing the work. The plaintiff Stephens Manufacturing Company through its representatives was present while the removal was being made and the defendants had no notice or knowledge of the manner in which it was being done or the ability or competence of the men engaged in the work.
The record also does not disclose by whom or to whom the tank and supporting beams were sold than that the agent called the plaintiff Stephens Manufacturing Company and told them that they had been sold either to a Mr. Lefkovitz or to Cline and Bernheim. As stated the arrangements for the removal were made by the purchaser with the representative of the plaintiff.
The proof does not support the allegation in the declaration that there was any understanding between the plaintiff Stephens Manufacturing Company or its representative and the owners or any one authorized to represent them that 'they, the said defendants of either or both of them, would be responsible to said plaintiff for any and all loss or damage that might be done or sustained by said plaintiff.'
The principal questions, therefore, for determination are whether or not there was a breach of any covenant of quiet enjoyment in the lease and whether or not the...
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