Steiner-Liff Iron & Metal Co. v. Woodmont Country Club

OPINION ON PETITION TO REHEAR

The plaintiff has filed a rather forceful but courteous petition to rehear, which is supported by a very able brief and supplement thereto.

However, with one exception, neither the petition nor brief raise any question which was not considered by the Court in reaching the conclusions set forth in its original opinion.

This exception is the insistence that the defense which was sustained by this Court was not raised in the trial Court but was raised on appeal in this Court for the first time.

Counsel for plaintiff relies upon the assumption that the defendant was limited to the special defense of relying upon its bylaw quoted in its plea. The plea, which is quoted verbatim in the original opinion, is a plea in bar with notice of a special defense and the giving of notice that it would rely upon this special defense did not constitute a waiver by defendant of reliance on the plea in bar which is contained in the first paragraph of said plea.

The record discloses that the plaintiff did not make any motion to require the defendant to plead its defenses specially and therefore, the defendant was not limited to a special defense.

On this subject, Caruther’s History of a Lawsuit says:

“To avoid the danger of surprise, whatever it may be, in some of the states, the law requires that the general issues should be pleaded with notice of the special defenses to be relied on, and the defendant is not allowed to rely on anything of which such notice is not given. In Tennessee the rule is both ways; that is, the defendant may plead the general issue with or without notice of special defenses, as he chooses, and the result is the bar has adopted the practice generally of pleading without notice.”

(Supra, Eighth Edition, Section 225, page 268)

Since this suit was filed on April 6, 1970, the new rules of civil procedure, which became effective on January 1, 1971, do not apply.

Counsel for plaintiff also insists that, by referring to briefs filed in the trial Court, it can be ascertained that the defendant in the trial Court, did not rely upon the defense which was sustained by this Court on appeal and has filed certain trial briefs as an appendix to the petition to rehear.

Ordinarily, briefs filed in the trial Court do not become a part of the record on appeal unless made a part thereof by specific order of the Court. No such order of the trial Court appears in the record and therefore, such briefs cannot be considered on appeal.

To consider, on appeal, matters which are not properly made a part of the record would establish a precarious precedent.

As we have already said, insofar as the record discloses, the defense which was sustained by this Court is included under the general issue plea and this is what we must look to in order to determine the issues raised upon trial in the Court below.

We review the case pursuant to Sections 27-303 and 27-304 T.C.A. and, according to 27-303, “ . . . . the hearing of any issue of fact or of law in the appellate court shall be de novo upon the record of the trial court, accompanied by a presumption of the correctness of the judgment or decree of the trial court, unless the preponderance of the evidence is otherwise.”

Therefore, we find no merit in this insistence.

Counsel for plaintiff also argues that the rule which was laid down in the original opinion in this case would be extremely prejudicial to persons who- may deliver articles to a repairman for repairs and could not meet the strict test of being “in good condition” when so delivered.

In order to avoid any misunderstanding of the interpretation herein placed upon Section 24-515 T.C.A., it should be emphasized that this Court has not held that said statute and the presumption recognized therein are applicable only to bailed articles which are in good condition at the time of bailment.

The very purpose of bailment may be to permit the repair of a damaged article which would not be in “good condition” at the time of bailment.

The words “in good condition” in the statute have reference to two elements stated in the statute, (a) “damaged condition” and (b) “inherent nature.”

In respect to (a) “good condition” means free from the defects complained of which appeared at the time of redelivery to bailee, that is, that the defect or damage which was in existence at the time the bailee returned the chattel to the bailor was not in existence at the time the bailor entrusted the article to the bailee.

In respect to (b) “good condition” means free of inherent characteristics (including defects) which might reasonably have produced the damage complained of, that is free of defects which might produce damage “due to the inherent nature of the property bailed.”

In the present case, a defective parking gear or defective parking brake would have prevented the vehicle from being in “good condition” in respect to (b).

Counsel for plaintiff also calls our attention to Dispeker v. New Southern Hotel Co. (1963), 213 Tenn. 378, 373 S.W.2d 904 and Scruggs v. Dennis et al. (1968), 222 Tenn. 714, 440 S.W.2d 20.

In addition to quoting other language used in those opinions, counsel for plaintiff quotes the following:

“It is true that in an action ex contractu, where the bailor relies on an ordinary contract of bailment without predicating his right of recovery upon the bailee’s negligence, the bailor makes out a prima facie case of breach of contract when he shows delivery of the article to the bailee and the bailee’s failure to return it in good condition on demand or as agreed on; and the bailee may escape liability only by affirmatively showing that his failure to redeliver was without his fault. Revenue Aero Club v. Alexandria Airport, (1951), 192 Va. 231, 64 S.E.2d 671; Giles v. Meyers, (1952), 62 Ohio Law Abst. 558, 107 N.E.2d 777, 779.”

(Supra, 213 Tenn. p. 387, 373 S.W.2d p. 909)

It is to be noted that in both of these cases the plaintiff’s case was predicated upon misdelivery rather than damage to the vehicle occurring while in custody of the bailee.

We did not overlook either of these cases in reaching the conclusions set forth in our original opinion and do not consider the opinion in this case as being contrary to the opinion in either of the above mentioned cases.

Furthermore, the words “. . . and the bailee’s failure to return it in good condition. ...” necessarily imply that the plaintiff was onerated with the burden of proving “good condition” of the bailed article upon delivery thereof to the bailee.

Roberts v. Ray (1959), 45 Tenn.App. 280, 322 S.W.2d 435, which is cited by plaintiff’s counsel, is not controlling in the instant case. In that case, which was predicated upon the doctrine of res ipsa lo-quitur, the owner of the automobile which rolled downhill and damaged plaintiff’s property was the person who parked said automobile. Therefore, regardless of whether the accident occurred as result of the owner’s failure to properly park the automobile or to maintain the brakes and parking gear in safe condition, the inference of negligence on his part properly arose under the res ipsa doctrine.

The instant case is predicated upon the bailment theory and the essential fact of delivery to bailee in “good condition” which serves to give rise to the statutory inference or presumption has not been established.

For the foregoing reasons, the petition to rehear is respectfully denied.