Wilcox v. Hines

• Decision Date: 12 March 1898
• Citation: 45 S.W. 781,100 Tenn. 524
• Parties: WILCOX v. HINES.
• Court: Tennessee Supreme Court

45 S.W. 781

100 Tenn. 524

WILCOX v. HINES.

Supreme Court of Tennessee.

March 12, 1898

Error to circuit court, Davidson county; John W. Childress, Judge.

Action by Lillie Hines against J. M. Wilcox. There was a judgment for plaintiff, and defendant brought error. Affirmed.

Vertrees & Vertrees, R. McP. Smith, and W. D. Covington, for plaintiff in error.

Hamilton Parks and Edwin A. Price, for defendant in error.

McALISTER J.

The defendant in error, Miss Lillie Hines, recovered a verdict and judgment in the Second circuit court of Davidson county against the plaintiff in error for the sum of $4,500, damages for personal injuries. The circuit judge being of opinion that the damages were excessive, a remittitur of $3,000 was entered by the plaintiff, whereupon the court overruled the motion for a new trial, and pronounced judgment in favor of the plaintiff for $1,500. The facts from which this litigation was evolved were, briefly, viz.: In September 1892, M. P. Hines and wife, Lucy S. Hines, father and mother respectively, of Miss Lillie Hines, the defendant in error rented of A. V. S. Lindsley, agent for J. M. Wilcox, the plaintiff in error, a two-story dwelling house on the southwest corner of Church and McLemore streets, in the city of Nashville. The tenants went into possession October 1 1892, and had been occupying the premises for about 11 months when the accident happened. The members of the family, including the defendant in error, were seated upon the back porch, when it suddenly gave way, precipitating the defendant in error and others violently to the ground, whereby they sustained serious personal injuries. The gravamen of the action, as outlined in the four counts of the declaration, is, viz.: "(1) The plaintiff was living with her mother, Mrs. Lucy S. Hines, who rented the house under a contract with defendant that the same would be put in good, safe, and tenantable condition; and that the said Mrs. Hines, before she moved into the house, was assured by defendant that it had been put in good, safe, and tenantable condition, as promised and agreed. (2) That the house, when rented to the plaintiff's mother, was in an unsafe and dangerous condition, which fact was unknown to plaintiff, and which she could not have known by the exercise of due care and diligence, but which unsafe and dangerous condition was known to the defendant, who concealed and withheld the same from said Mrs. Hines and plaintiff. (3) That, after Mrs. Hines took possession of the house, defendant visited the premises; and, his attention being called to needed repairs, he promised and undertook to repair, and did repair, the same, but did so in a careless and negligent manner. (4) That, after Mrs. Hines took possession of the house, defendant undertook to repair and make safe said premises, and did repair the same, but did so in a careless, negligent, and unskillful manner. Plaintiff further alleges that it was the duty and obligation of defendants, as landlords and owners of said property, of which her mother was tenant as aforesaid, to have put, kept, and maintained the same in good, safe, and tenantable condition, suited to the uses and purposes for which the same was being occupied by her said mother and family. *** Yet plaintiff avers that, in total disregard of her rights and their duties in the premises, said defendants carelessly, recklessly, and negligently allowed and permitted said property to remain in an unsafe, insecure, and dangerous condition, which said condition plaintiff did not know, but which defendant well knew, or ought to have known, and was by them negligently, willfully, and intentionally withheld, hidden, and concealed from plaintiff, and in such way as to mislead and deceive plaintiff with reference thereto. And plaintiff further avers that, for the purpose of misleading her with reference to the said condition of said property, said defendants falsely and fraudulently represented to her, and repeatedly assured her mother and herself, that said property had been put and was in safe and tenantable condition, upon which representation and assurances on the part of said defendants plaintiff relied, as she had a right to do," etc.

In respect of the first count of the declaration, which alleges a contract to repair made by the agent of Wilcox with M. P. Hines and wife, it suffices to say that Miss Lillie Hines was not a party to that contract. Burdick v. Cheadle, 26 Ohio St. 393. This question was considered by this court in the case of Stenberg v. Willcox, 96 Tenn. 163, 328, 33 S.W. 917, and 34 S.W. 420 (a suit growing out of the same accident, in which Mrs. Stenberg was injured). It was then said, viz.: "If plaintiffs can recover at all in this case, it must be upon the ground that the landlord leased premises in a dangerous and unsafe condition, when he knew, or might by the exercise of reasonable diligence and care have known, of such unsafe condition, and upon the further ground that plaintiff did not know of such unsafe condition, and could not have known of it by the exercise of reasonable diligence and care, and not upon any contract between the defendant and Mrs. Hines, of which Mrs. Stenberg may have known nothing, and to which she was not a party." It is not necessary, therefore, to consider further the first count of the declaration.

The first assignment of error that will be considered is that there is no evidence to support the verdict. It appears from the record that the porch in question was about 12 or 13 feet in height, and that it was attached to the rear of the house extending almost its entire width. There was a flight of stairs leading to a platform that connected with the main porch. This porch was supported by wooden posts, and was joined to the house at the top, while the floor of the porch was supported by timbers which were mortised in the timber affixed to the wall of the house. The record shows that the collapse of the porch was due to the fact that the tenons or ends of the timbers which fitted in the mortises had rotted, thus destroying the support upon which the floor of the porch rested. There was evidence tending to show that this porch was very old, and quite dilapidated. Mrs. Dunn, a former tenant of the premises, had made complaint to the agent of the condition of this porch, and the latter had promised to repair it. This witness also stated that the agent of Wilcox was frequently upon the premises, and was well acquainted with the dangerous condition of the porch. There is also evidence tending to show that after Mrs. Hines took possession of the premises the attention of the landlord, Mr. Wilcox, was called to the condition of this porch, and that he pronounced it safe, but promised that, when the weather permitted, he would have the porch put in good and safe repair. It also appears that, very soon after this interview, workmen went to the house, and repaired the porch by placing a wooden post under one corner of it, and that a piece of tin was placed over the roof at the point where it joined the wall of the house, to prevent the rain from falling through upon the porch. It is not claimed that the attention of the landlord was challenged to the particular infirmity in the structure that caused it to fall, but, on the contrary, plaintiff states that she and her mother were both ignorant of this defect. There is evidence, however, tending to show that any carpenter of ordinary skill in...