Wilson v. Page

• Decision Date: 10 September 1958
• Citation: 325 S.W.2d 294,45 Tenn.App. 475
• Parties: James E. WILSON, Plaintiff in Error, v. W. T. PAGE, Defendant in Error.
• Court: Tennessee Court of Appeals

Page 294

325 S.W.2d 294

45 Tenn.App. 475

James E. WILSON, Plaintiff in Error, v. W. T. PAGE, Defendant in Error.

Court of Appeals of Tennessee, Eastern Section.

Sept. 10, 1958.

Rehearing Denied Nov. 7, 1958.

Certiorari Denied by Supreme Court Jan. 23, 1959.

Kolwyck & Clark, Chattanooga, for plaintiff in error.

H. Keith Harber, Chattanooga, for defendant in error.

McAMIS, Presiding Judge.

This is a suit for damages growing out of the collapse of the roof of a building owned by plaintiff W. T. Page who sued W. W. Gentry, the fabricator of a steel truss which failed, and James E. Wilson who erected the truss. The case was tried before a jury which found in favor of Gentry but against Wilson. The damages sustained by the plaintiff were fixed at $20,581.17 for which amount judgment was rendered against Wilson. The damages consist of (1) The cost of removing the original construction, (2) Reconstructing the building, (3) Loss of use of the building while being reconstructed and (4) Expenses incurred by a partnership composed of plaintiff and his brother in conducting the partnership business at another location.

The plaintiff moved for a new trial assigning, among other grounds, that there was no evidence to support the verdict of the jury dismissing the suit as to Gentry, the fabricator. The Court overruled the motion and plaintiff has not appealed. The defendant Wilson's motion for a new trial was overruled and he has appealed and assigned a number of errors. We consider first the assignment that there is no evidence of negligence on the part of Wilson, the erector.

Prior to August 24, 1956, plaintiff and his brother operated a used car business on property owned by plaintiff who also owned adjoining lots. About that date, the partnership acquired a dealer's franchise for Chrysler and Plymouth cars. To take care of the additional needs of the partnership incident to this new undertaking plaintiff agreed to erect a building on the adjoining lot and lease it to the partnership at $600 per month. It was contemplated that the building would be completed and ready for occupancy when the 1957 models arrived about November 1, 1956.

Plaintiff employed a carpenter by the name of Lusk to supervise the construction of the new building and also employed a competent structural engineer named Hutson to draw plans for a steel truss to support the roof. There is no serious criticism of these plans. They were presented to defendant Gentry who agreed to furnish, fabricate and erect on the job all necessary steel construction for 'around $8,600.00'. Gentry, in turn, contracted with defendant Wilson to erect the steel on the job, apparently, without fixing the amount to be charged for that portion of the work. Plaintiff testified that he had no contract directly with Wilson for the erection of the truss.

Engineer Hutson testified that the building faces the east side of Rossville Boulevard and that he designed three steel trusses each 48 feet in length consisting of two steel chords 6 feet apart to which there was to be welded steel supports and braces both in vertical and diagonal positions. The three trusses were to be supported by two steel 'H' columns in the center of the building from the front to the back.

In measuring from the rear wall to determine the location of the H column nearest the rear wall, plaintiff's foreman, Lusk, placed it 6 inches too near the rear wall. When Wilson swung the rear truss, referred to in the record as T3A, into place on the H column and attempted to place the other end on the rear wall he discovered that it was 6 inches too long. After discussion between Lusk, Vanderslice, Wilson's foreman on the job, and Clark, Gentry's superintendent, it was decided that the only solution was to cut T3A and shorten it by 6 inches. There is some uncertainty as to who issued the order to cut but we think that question is not controlling. There is evidence that Wilson's welder, Hutton, requested Lusk to use his square and mark the point of severance. Hutton then cut 6 inches off the end of the truss.

No measurements were made before T3A was cut, but the following morning Lusk discovered his mistake in locating the H column and so advised plaintiff. Under one permissible view of the evidence which we must assume the jury adopted, plaintiff then employed Wilson to restore the 6 inches by welding the severed portion back on the end of T3A. There is evidence that, in doing so, a new gusset plate should have been used to give greater welding surface. Hutton, however, used the original gusset plate which had been materially shortened in cutting the truss on the preceding day and made no request of Gentry for a new gusset plate. There is an abundance of evidence to the effect that, in restoring the 6 inches of T3A, Hutton only spot welded the diagonal and vertical in that section of the truss. He admits that he failed to properly weld these parts and we have no difficulty in holding that, under all the evidence, the questions of negligence and proximate cause were properly submitted to the jury. There is evidence that, even without a new gusset plate, the diagonal could have been securely welded by making the weld thicker.

But, assuming the contrary, having undertaken to restore T3A to its original length, considering the direful consequences of a weak member, a jury could well find that it was Wilson's duty to use care not to endanger the building by improper welding and placing an inadequately welded member in position without calling for a new plate or notifying plaintiff of the danger.

There is no merit in defendant's insistence that, as a matter of law, the cause of the damage was Lusk's mistake in locating the H column and plaintiff's failure to have the work done by a duly licensed contractor a provided by T.C.A. § 62-601 et seq. Lusk's mistake and the cutting of T3A did not cause the roof to fall. There was no roof at that time. The cause of the failure of the truss was the negligence of Wilson in putting a defective member of T3A in place without notice to plaintiff. The cause of action is based on tort and it is immaterial in what capacity Wilson was acting, whether as plaintiff's employee, as Gentry's employee or as an independent contractor. If Lusk had been a contractor duly licensed under the Act, the same duty would have devolved upon Wilson and whether or not Lusk was licensed plaintiff had a right to assume that Wilson would observe safety requirements and not endanger the building in the manner shown.

The question of plaintiff's right to recoup one-half the expenses incurred by the partnership in conducting the partnership business at another location, including rent, extra help, advertisements and telephone, while the building was in process of reconstruction seems clear. His right to recover the remaining one-half presents a question of some difficulty. In our opinion, however, the question was properly submitted to the jury.

As we have seen, plaintiff was under contract with his brother to have the building ready for occupancy about November 1 1956, when the new models were expected. It was plaintiff's duty to minimize his damages and if he was liable to his brother in damages for failure to perform this contract, he would not be compelled to have the amount judicially determined before discharging his liability and seeking recoupment from defendant. So, the question is: Was plaintiff liable to his brother for breach of contract and resulting...