Woods v. Forest Hill Cemetery, Inc.

• Decision Date: 02 March 1946
• Citation: 192 S.W.2d 987,183 Tenn. 413
• Parties: WOODS v. FOREST HILL CEMETERY, Inc.
• Court: Tennessee Supreme Court

192 S.W.2d 987

183 Tenn. 413

WOODS v. FOREST HILL CEMETERY, Inc.

Supreme Court of Tennessee.

March 2, 1946

Error to Law Court, Shelby County; Harry Adams, Judge.

Action by Sam Woods against the Forest Hill Cemetery, Inc., to recover damages for personal injuries. Judgment for defendant on a directed verdict and plaintiff brings certiorari. Certiorari was also granted to the defendant to have the Supreme Court consider the question of plaintiff's contributory negligence.

Reversed and case remanded for new trial.

Graham Moore and T. L. Campbell, both of Memphis for plaintiff in error.

Albert F. Johns and Walter P. Armstrong, both of Memphis, for defendant in error.

NEIL Justice.

This suit originated in the Circuit Court of Shelby County, in which the plaintiff Sam Woods sued the defendant for damages for personal injuries based upon the following facts, as found by the court of appeals:

'The premises on which the injury occurred to the plaintiff, and which was owned by the defendant, consisted of a dwelling located in Memphis divided into two apartments, which are identified as 1517 and 1519 Carr Avenue. 1517 which was the upper apartment was leased to Mrs. Alvin Bick and 1519 the lower apartment was leased to Mrs. F. B. Jones. To the rear of the dwelling there was a double garage with two apartments above it. Each lease contract provided that the same was rented 'with the privileges and appurtenances thereunto belonging'. Under this Mrs Bick was in possession of the west side of the garage and the west garage apartment, and Mrs. Jones in possession of the east side of the garage and the east garage apartment.

'There was a porch on the south side of the garage apartments and on the east side there was a stairway leading up to the porch. There was a railing or bannister extending along the east side of the stairway and around the porch. This railing or bannister was about three feet high and was made of two by four timbers.

'The two apartments designated as 1517 and 1519 were first rented to Mrs. Bick and Mrs. Jones respectively October 1, 1938, and were continuously occupied by them until after the injury to the plaintiff occurred.

'Will Williams [subtenant in one of the garage apartments] was a carpenter and had employed the plaintiff, Sam Woods, to assist him in painting a house across the street from the apartment where he lived.

'About the time they started to work it began raining and Will Williams, Sam Woods and Dexter Burns, another employee of Williams, went to Will Williams' apartment. After sitting in the apartment for a short time the three went out on the porch to view the weather and to see whether they would be able to work that day.

'As to the immediate facts of the injury the plaintiff testified: 'A. He said 'Come back tomorrow.' Well, when Will Williams and Dexter went to this side, near the east or south side, why that is the way this bannister runs, north and south, well they went over there and leaned up on the bannister while I went over to the side right here in the east part and the stairs go down here (indicating) and this bannister, I don't know, about four or five or six feet, something like that, I didn't measure it, but I leaned up on the bannister this way, looking east, at the weather, and I turned around and went to put this elbow up on it and it broke, and there was no way for me to catch and I went right down on the sidewalk.''

The fact that the banister was 'rotten' is undisputed. Likewise, it is beyond dispute that plaintiff's fall, and consequent injury, were proximately caused by the defective condition of the porch and banister. The lease in question was executed by Mrs. Jones and by Percy Galbreath & Sons as agents for the defendants. It was to take effect October 1, 1942, and was for the term of one year. It contained the following covenant: 'The said tenant covenants that he will not allow the premises to be used for any purpose that will increase the rate of insurance thereon, nor for any other purpose than that herein specified, nor to be occupied in whole or in part by any other person, and will not sublet the same, nor any part thereof without the landlord's consent in writing.'

B. F. Cornelius testified that he was the son-in-law of Mrs. Jones and that he and his wife and Mrs. Jones had occupied the apartment Number 1519 continuously since April 1, 1938. He had managed Mrs. Jones' business since her husband's death in 1921. It appears that he was not only the agent of Mrs. Jones in renting the apartment, but was an agent and servant of Percy Galbreath & Sons at the time, and continued in their employment until a short time before the plaintiff was injured. He was asked if the agents of the cemetery company had ever complained to any one about tenants' occupying these garage apartments. He replied they had not and 'they explained to me that we had a right to rent it to anybody we wanted to.' Counsel for defendant objected and the evidence was excluded 'under the parol evidence rule'. The trial judge entertained the view that these conversations were merged in the written agreement and that they violated the terms of the written lease. The witness further testified that Galbreath & Sons knew these garage apartments were being occupied by tenants all the time that Mrs. Jones had the property under lease. This testimony was objected to and the objection sustained. He testified that he had told the agents about the condition of the premises around the garage apartments, saying, 'I said the backstairs, Williams', are in bad shape and unless you repair them you are going to have an accident.' Following this statement Galbreath & Sons sent men out there and they made repairs on some of the risers 'and they put a railing going upstairs to the entrance to the two apartments, you see, the two rooms.' He was asked if any repairs were made on the railing of the east side of on the south side of the porch. Answer: 'There were none.'

Mrs. Bick, who rented the other side of the apartment building, which is Number 1517 Carr Avenue, testified that the west side of the garage and the upper apartment over it were appurtenances which went with her lease; that there were tenants in this apartment as well as the one on the other side, or the east side when she moved in. Asked as to repairs on the apartment, she said, 'Every time anything happened I called them,' meaning the agents, Galbreath & Sons. At one time she called them and they made repairs on the screens and windows in her upper garage apartment.

It is further shown that the agents of the property owner employed a janitor for these respective apartments, who fired the furnaces; that his services 'went with the lease'. She stated without objection that no one from Galbreath & Sons or Forest Hill Cemetery Company ever complained to her about sub-letting the apartment. It thus clearly appears from the testimony of Mr. Cornelius and Mrs. Bick that the agents of the defendants made repairs on the property when called upon; that the owner employed a janitor to fire the furnace and do other things incident to his employment for the benefit of the lessees. It was while Cornelius was an employee of the agents of the defendant that repairs were made on the steps railings of the stairway, except no repairs were made on the east end of the porch from which plaintiff fell and was injured.

There is no escape from the conclusion that Percy Galbreath & Sons knew that the two upper garage apartments were occupied by tenants from 1938 until after plaintiff was injured. We think it clearly appears that the stairway leading to these two apartments was a common passage way for the benefit of tenants and subtenants who occupied them, as well as other persons who were lawfully upon the premises as invitees. Moreover, the fact that the agent of the owner repaired these steps, as well as windows and screens of the apartments, tends to show that the owner recognized that it was obligated to make necessary repairs.

At the conclusion of the plaintiff's evidence the defendant made a general motion for a directed verdict in its behalf. The trial court sustained the motion, holding 'that there was no notice brought home to Galbreath & Co., or the defendant, the owner of the premises, that there were any sub-tenants back in these garage apartments during that period,' (from October, 1942, to October, 1943). 'Now the lease carries a provision against sub-letting unless same is secured in writing. There is no proof that that was secured in writing, and I am of the opinion that there was no waiver of the terms in this lease on the part of the landlord or the landlord's agent, Galbreath & Co. So I am of the opinion that the directed verdict should be granted on that ground of the motion.'

The trial judge pretermitted the question of plaintiff's contributory negligence and also whether or not defendant was obligated to keep in repair the stairway leading to the garage apartments.

The plaintiff moved the court for a new trial, which was overruled, and thereupon an appeal was prayed and granted to the court of appeals. That court affirmed the judgment of the lower court. The plaintiff filed his petition for certiorari to review the alleged error of the trial judge in directing a verdict in favor of the defendant. The defendant also petitioned the Court for certiorari to have the Court consider the question of plaintiff's contributory negligence as a bar to his right of action. Certiorari was granted to both plaintiff and the defendant and the questions raised in their petitions have been fully argued.

We think the learned trial judge was in error in sustaining defendant's motion to dismiss the plaintiff's suit on the ground (1) that...