Arrowood v. McMinn County

• Decision Date: 25 November 1938
• Parties: ARROWOOD v. McMINN COUNTY, et al.
• Court: Tennessee Supreme Court

121 S.W.2d 566

ARROWOOD v. McMINN COUNTY, et al.

Supreme Court of Tennessee.

November 25, 1938.

Appeal in Error from Circuit Court, McMinn County; Pat Quinn, Judge.

Suit by Beulah Arrowood, administratrix, against McMinn County and others for the death of the son of the administratrix resulting from being struck by an automobile. To review an adverse judgment, the plaintiff appeals in error.

Affirmed.

H. M. Gregory and Ralph W. Duggan, both of Athens, for plaintiff in error.

Jones & Davis and Tom J. Taylor, all of Athens, for defendants in error.

CHAMBLISS, Justice.

This is a suit to recover damages for the wrongful killing of Jack Arrowood, six year old son of the Administratrix and C. W. Arrowood, who was struck and killed on the Lee Highway the afternoon of August 11, 1936, by an automobile driven by Reon Baldwin, a non-resident of this State. The lad was a pupil of the Riceville school and had just alighted from a school bus, operated by Clifford Miller, under contract with the McMinn Board of Education, at a point opposite his home, and was crossing the highway from the bus to his home.

Mrs. Arrowood qualified as Administratrix January 29, 1937, and first sued only Clifford Miller and the Board of Education, charging negligence in caring for the safety of this child they had undertaken to transport. January 31, 1938, more than a year after the Administratrix qualified, summons was issued for the non-resident, Reon Baldwin, and Harry M. Baldwin, a companion in the car, also a non-resident, who were not until then made defendants, and this summons was duly served on them February 9th, 1938, through the Secretary of State, pursuant to Code, Sections 8670, 8671, applicable to non-resident drivers of vehicles on highways in this State.

Immediately after the death of the lad, the parents settled with the Baldwins, accepting $50 in cash and a $200 note secured by chattel mortgage on the car they had been driving. However, the Administratrix set up that she was not bound thereby, that the consideration was inadequate, both because it was too small in total, and because the note had not been paid, also that it had been made under misrepresentations and circumstances showing fraud.

By proper pleadings the Baldwins relied on the statute of limitations of one year, Code Section 8595, limiting actions for personal injuries; and Miller and the County on the settlement made with their alleged joint tort feasors.

As to the defense of the Baldwins, the Administratrix invoked Code, Section 8581, tolling the statute of limitations while a defendant is absent from or resides out of the State. And it was denied for Miller and the County that an administratrix could set aside a settlement made by the father and mother, the beneficiaries of the deceased child.

The trial Court sustained the defense of the statute of limitations as to the Baldwins and held that the Administratrix could not raise the question of the validity of the settlement, and dismissed the suit. The Administratrix has appealed in error. We find no error in the judgment of the trial Court.

1. We are advised of no decision of this Court passing specifically upon the effect of Code, Section 8671 et seq., upon the running of the statute of limitations of one year, as suspended during non-residence by Code, Section 8581, but this Court has repeatedly announced a principle which clearly applies to the instant case.

It is obvious that under Code, Section 8671 et seq., providing for service on non-resident operators on highways in this State through the Secretary of State, suit could have been commenced and service had at any time within the limitation of one year. The absence or non-residence of the defendants in no way obstructed or prevented suit against or service upon them. The applicable principle laid down by our decisions is that when the remedy of the suitor is complete and unaffected by the absence of the defendant, when his non-residence does not affect the right to sue, Code, Section 8581 (Act of 1865) providing that "the time of his absence or residence out of the state shall not be taken as any part of the time limited for the commencement of the action" is without application.

Our leading case appears to be Taylor v. McGill, 74 Tenn. 294, 6 Lea 294. Discussing what is now Code, Section 8581, it is said that this Act was passed immediately after the Civil War, to meet the facts resulting from a disturbed state of society; that it provides for two cases, one where, when the cause of action accrued the person liable was out of the State, the other, where the absence or non-residence is after accrual of the right of action. The opinion proceeds:

"What is not within the purpose or meaning, nor within the mischief to be remedied by a statute, cannot be held included in the law, even though literally the language might include it. We take this to be a sound principle of exposition axiomatic, or almost so in our law."

And again,

"The clear purpose and purview of the statute is, that where the party is prevented from having his legal remedy by non-residence of defendant when his right of action accrues, or by like absence or non-residence commencing after the right accrues, that this absence or non-residence, for the time it exists, shall not be held to constitute a bar to the right of action possessed by the party thus prevented from enforcing it by inability to have personal service of process on the party against whom it existed."

And, again,

"The principle we decide is, that where the party had his remedy complete and unaffected by the absence of the administrators or defendant, then such absence has not affected his right to sue, and is therefore not within the purpose of the act of 1865, preventing the lapse of time effectuating the bar of the statute during the absence of a party to be sued."

In Turcott v. Railroad Co., 101 Tenn. 102, 45 S.W. 1067, 40 L.R.A. 768, 70 Am. St.Rep. 661, the Court follows Taylor v. McGill, supra, and holds that the statute of limitations of one year in personal injury cases, runs in favor of a non-resident corporation, where service could have been had at any time; the Court says:

"The exception made in this statute does not apply to a natural person unless his absence from the state is such as to prevent service of process." Page 105, 45 S. W. page 1068.

Again, the Court says:

"Absence from the state and residence out of the state, in the sense of the statute, means such absence and such non-residence as renders it impracticable at all times to obtain service of process; * *."

And in Green v. Snyder, 114 Tenn. 100, 84 S.W. 808, this Court follows Turcott v. Railroad Co., supra, and holds that the one year statute of limitations in personal injury cases, is applicable to a nonresident defendant on whom process could have been served at any time.

So it has been held that Code, Section 8581 does not apply to a suit to set aside a deed for fraud, because complainan...