*1 504
L. O. Walker v. Inc., al. et 471 S.W.2d 1971.) April Term, (Jackson, August Opinion 16, 1971. filed Rehearing October Denied 1971. Petition *3 W. W. Glekk H. Sel- Savannah, Lackey, Whitlow, plaintiff. mer, for
W. J. Jr., Selmer, ReyNolds, Pierce Winningham, Dyersburg, Jackson, Ashley Malone,. Lawson, & Ashley, Ross, Ross & Hopper, Savannah, defendants. opinión delivered
Mr. McCanless Justice Court. *4 brought suit Adamsville, in a merchant
O. L. Walker, resulting from property damage business his and grocery sued He in store. installation of floor the originator, the (1) Ohio, as Cincinnati, of Decora, Inc., employed supplier developer in the of the material (2) laying also of Inc., of Premium floor; Finishes, the (3) material; manufacturer Ohio, Cincinnati, Dyer County, distributor Inc., of Materials, Pioneer McNairy (4) material; of the Hobart County, the installer of the floor. filed Finishes, than Premium
The other defendants, pleas Premium the suit. Finishes, and defended procedure process was served with accordance prescribed by Chapter now Public Acts of 20-235 Sections in Tennessee Code Annotated as carried defend the court inclusive, suit, did not and the 20-240, against judgment by it. default entered plaintiff four on the sued defendants each misrepresentation, (2) strict lia- tortious theories warranty. (3) negligence, bility breach of tort, Judge proof of all the Circuit At conclusion Pioneer and defendants, in favor of the verdicts directed declaration; favor all four counts of the on Landreth, warranty in favor count; breach of Decora on the against mis- tortious Decora negligence counts. representation, liability, and strict jury inquiry the amount ascertained writ of Under against against whom damages Premium Finishes, against pronounced judgment had the default misrepresentation, counts, tortious the three Decora on negligence, Avhichhe tort, strict against plaintiff and in favor a verdict directed de- its returned Decora. amount Decora Finishes fendants, of $11,500.00. *5 motion of
The a Decora for new trial was overruled perfected' appeal its and it in the nature of a of writ plaintiff Appeals. of error to the Court moved for a assigns any assignment new trial, and if as of error, error sustained, of Decora be action the of the trial court (1) directing in in a verdict favor of Pioneer Lan- (2) directing dreth, in a in favor Decora to of warranty refusing permit the breach of in count, to pre-trial plaintiff discovery deposi- read in evidence a president tion of the of Premium Finishes, refusing grant an of additur view what he contends judgment inadequacy an of the He and verdict. appeal perfected a nature of of error. writ Appeals judgment of The Court of affirmed directing verdict in favor of trial court Decora warranty of count of Pioneer on the breach Materials but counts reversed and declaration, other As a new to Landreth the the case for trial. remanded judgment Appeals trial of reversed Court new trial on all four case for a remanded court granted certiorari. counts. We plaintiff presentation
During of his evidence discovery deposition Hall to which Glen read the by signed Kail, him and Harold statement exhibited a part Ray Heylmun, Jimmy M. Evans, insur- existence recited statement objection having over the read to ance Decora. deposition of sought to read the Finishes, of Premium Savin, R. President
Ronald discovery deposition statute, under the had taken he the reason that it for objection excluded upon the court haying judgment Finishes suffered default longer to be entered party was no it, meaning suit within the 24-1208, Section In T.C.A. making ruling judge such the trial was in error. The fact that Premium Finishes had made no defense was not participant litigation an active in the made less a processes party judgments amenable the court. assignments
Decora filed thirteen error the Court Appeals, *6 headings which we will consider under : three (1) admitting the court in erred in evidence signed employees of statement the officers of and Decora refusing and Pioneer in Materials; direct a verdict to directing in it; favor of Decora and in a failing proper in instruct the as to to damages applicable measure of and as the law damages. of assessment dispute early in
There about is these facts: arranged for this Decora with Pioneer which Materials, purpose adopted name, South, Decora of trade known as Decor- distribute its seamless floor material including a Decora Rock in number Tennessee. states bought from materials the manufacturer its was not applied de- Decora labels and Premium Finishes which according instructions. to Decora’s the materials livered “origi- advertising to Decora as matter referred developer” supplier, material, nator, aggregate with which of various colors of roek consisted parts; equal components were mixed two fluid applied resulting was known base mixture, coat, a set coat had after that trowel, with a to the floor liquids, record application in the referred second applied. coat, flow was as a
In dealings between and Pioneer Decora Materials so far they concern the issues in this case Ray Heyl- mun, president Decora, represented his company, Glen W. Hall, vice-president of Pioneer Materials, represented his company.
Early in 1967 employees Pioneer Materials laid floor of Decor-Rock in the of an cafeteria plant industrial at Adamsville which Hobart Landreth was employed aas maintenance man. Landreth became interested the process and went on mor© than one Dyersburg to witness to take occasion in the part laying floors. from kit bought He Pioneer Materials sales contained the floors and brochures samples which advertised store them. The floor of grocery L. owned O. operated by Adamsville was worn for Landreth agreed Walker was and Walker on new floor of Decora’s relying Decor-Rock, install on representations. literature Landreth’s an employee Harold Kail, the services of engaged em- but who this occasion Materials, Pioneer was a person who by Landreth and ployed by paid floors. After experience installing who had had Saturday, evening closed store *7 materials two mixed helpers May 1967, they o’clock one after the work finishing coat, the base laid after following morning, On the morning. on Sunday helper Landreth to Dyersburg, returned Kail had but no question to be seems There flow coat. applied the installed. were properly flow coats base and that both church service his home from After Walker returned that and found the store visited he Sunday on morning giving was floor his been laid that had the material windows doors The offensive odor. off an store had been left closed and no ventilation had provided. opened Walker the doors bnt odor con- Monday strong. and on it tinued, was still He communi- telephoned cated with Landreth who Pioneer Materials. at Heylmun^ Someone Pioneer Materials in turn called president telephoned of Decora in who Cincinnati, everything worry him and told that not Memphis A would taken truck from care of. was sent scene and an was made effort to deodorize store but success. without penetrated strong odor was so it a brick place
wall which divided the from the store business appeared door, and when it next Walker within the days few next that the stench had almost contaminated he all merchandise moved the merchandise out heap. being junk store, most of taken He then joists replaced by had the floor torn down to the out asphalt a new floor which he wood installed tile. He repainted was the interior. The store closed about days repairs. thirty for these testimony president appears from the It before the floor Wal- Finishes that laid in flow had formulas of the coat ker’s store had liquids liquids changed. Previously had the same aggregate also as a binder for the rock had been used coat, the flow but new material contained been used as easily. Decora had flowed on more thinner and thus new material Pioneer Materials recommended objectionable warning would given an odor packed liquids dis- were from its result use. in sealed tributed cans.. of the four defendants sued each
Since the incorporated 'under, separate theories four *8 the counts of his four we will consider each declaration, theory separately applies as it to the several defendants. As we said, have the defendant, Finishes, made judgment by against defense and default was entered it. theory We first consider the of tortious
misrepresentation.
Judge
The
Cffcuit
this
of
count
the declaration directed a verdict in
of Pioneer
favor
against
and Landreth
Materials
Decora.
Court
The
Appeals
opinion
liability
was of
that the
issue
Materials,
Pioneer
this
Landreth,
Decora, under
theory,
jury.
dis
should have been submitted
We
agree. The evidence is
clear
uncontradicted that
prepared
Decora
brochure
and circulated the
material for use as was used
it recommended the
damages complained
use
of.
that such
resulted
properly
Judge
a ver
We
Circuit
directed
hold
plaintiff
against
theory in
of the
dict on
favor
jury to determine the amount
and instructed the
Decora,
damages.
which the
There is no evidence from
tortiously mis
might
Materials
that Pioneer
have found
product
represented
on this count
Landreth, properly
verdict in favor
directed
court
Lan
defendant,
is evidence that
There
defendant.
plaintiff
representations
would
dreth, made
finding against
him on
supported
this count.
have
relying on
literature and
“I was
testified,
Motor Co. v.
of Ford
The rule
of course.”
Mr. Landreth,
applicable.
240, is
398 S.W.2d
Lonon,
“It seems increasing unfair to on re- burdens exempt tailers, even as to latent from defects, responsibility the normally manufacturer, who deter- precautions safety mines what shall be taken before product placed is on the iswho market, and likely one particular most to have been when a careless proves unreasonably danger- item be defective might many ous. It added it is eases pass manufacturer who can best of this the costs protection increased to the users or of his consumers products, and to the done extent that has been liability already imposed because of a more strict large products many and users consumers states, already paying protection.” this state are increased Olney In neither the Lonon case nor Beaman v. *10 Bottling 220 Co., 459, Tenn. S.W.2d doc has the liability applied trine of to strict a merchant who product in sells the a sealed container who is afforded inspect. opportunity no two reasonable to eases that go to hold manufac we have cited no further than that appropriate turers under circumstances are to be held liability. In under the rule of strict the liable absence unwilling legislation to to extend doctrine we are the circumstances exist this case. merchants under such (3) By count his declaration the the third plaintiff on defendants liable seeks each the hold theory negligence. from material evidence is There damage finding that was warranted in which the negligence from the resulted sustained they might from which we no evidence Decora, but find negli damage from the resulted that the concluded have regard Landreth, gence With Materials. of Pioneer carefully the in- to read he failed is that there evidence structions to room ventilate the' in which the material appear being applied, it does omis- not this plaintiff’s damages. contributed to The court sion directing his favor committed error this count. imposed For because of a warranty plain privity must
breach between the exist charged Olney with the tiff and defendant breach. v. Bottling supra. imposing Co., lia Beaman The statute implied warranty part of bility is a for breaches of is follows: Commercial Uniform Code warranty Implied particular “47-2-315. —Fitness for contracting purpose. time of seller at —Where any purpose particular know for has reason to buyer relying required goods is and that are judgment furnish suit- or to select or seller’s skill goods, under excluded or modified there is unless able warranty goods implied that the the next an section ’’ purpose. for such shall be fit exceptions applicable to the facts of not are purpose language and for the is clear this case. The only requires Landreth was no construction. suit privity plaintiff, the record with the defendant finding support there facts sufficient discloses purpose warranty implied fitness for was an plaintiff’s store. This in the was installed the floor jury with re been submitted have count should spect Landreth. *11 relating to the 27, 1967, dated June
A statement signed plaintiff’s store was floor installation Jimmy Evans, M. by Kail, Hall, Harold W. Glen Bay by employees Materials of Pioneer all officersor president persons Hevlmum, of Decora. These were all active grew, the transaction out of which this suit only employees were the officers of Pioneer Materials knowledge and Decora who had transaction. by which had been exhibited
statement, witness, Hall, discovery deposition properly in his was introduced as part liability but that evidence, which indicated that protected by liability to certain defendants was insurance incompetent was and should not been read to the have jury. (1) summarize,
To hold that directed verdict we should of Decora on rendered behalf have warranty only but that material count, breach supports three other counts evidence in the record that record contains material Decora; be held liable which Pioneer Materials can evidence entitled to a directed that this defendant was was a directed entitled to counts; on all negligence count, verdict- on the strict submission warrant evidence to was sufficient that there misrep- the tortious defendant this to the warranty counts. breach resentation requested trial The defendant, regard charge language this judge include certain granted damages. The court ing measure appears he however, request. record Prom the charge. omission This an from all omitted else defendant, error. reversible constituted although is entitled default, Finishes, damages. charge the measure as to a full benefit Appeals conclusion reached The Court agree. we
518 judgment of is re- the trial
It court- follows for a Circuit Court ease remanded versed except defendant, defendants, to all trial as new whom the case is dismissed. as to Pioneer Materials, Hum- Chattin, Justice, Creson Chief DyeR, concur. Justices, pheeys,
Opinion to Rehear on Petition Q. petition deny to rehear. We L. Walker’s again, as has been said state, “We are constrained many of a language, that the office in variant times petition Court to call the attention rehear is things counsel those overlooked, not to matters improperly supposes full decided, after consider- were says again, said, has this Court Further, ation. rehearing petition never used for should be that a already points rearguing purpose the case de- some new and determined, unless considered authority over- which was discovered has been cisive governs Court Rule 32 this Court. looked says, rehearing rehearing will subject “Á argument is no new new made, no refused where pointed out fact is adduced, and material authority ” Tenn. Batson, Knox v. as overlooked.’ S.W.2d 765.