Bertrand v. Wilds
| Decision Date | 06 May 1955 |
| Citation | 198 Tenn. 543,2 McCanless 543,281 S.W.2d 390 |
| Parties | , 198 Tenn. 543 John M. BERTRAND v. Mr. and Mrs. Murphy C. WILDS. |
| Court | Tennessee Supreme Court |
Abe D. Waldauer, John T. Thompson and Arthur H. Friedman, Memphis, for plaintiff in error.
Charles L. Neely, Memphis, for defendants in error.
The plaintiff sued the defendants in the Circuit Court of Shelby County for damages for personal injuries alleged to have resulted from the negligent operation of an automobile. The declaration, as originally filed, alleged that the accident happened in or upon a 'private driveway'. These words were, upon motion of the plaintiff's counsel, stricken and in their place and stead the word 'highway' was substituted. The declaration was further amended as follows:
'Plaintiff further amends by adding before the final paragraph of said County I the following averment:
'The defendant was making use of a highway of the State of Tennessee, as that term is defined by Section 2696a, subd. 13, reading as follows:
'The plaintiff also alleges that the vehicle operated by the defendant, which negligently ran into him, was the direct result of the negligent operation of said vehicle, and that this suit is a suit to recover arising out of an accident or injury occurring in this state in which said vehicle is involved. * * *'
To the declaration, as amended, the defendants filed a plea in abatement, which reads as follows
At the time the trial judge ruled upon the sufficiency of the foregoing plea in abatement, the parties entered into the following stipulation, as appears from the opinion and judgment of the court: 'that the accident occurred in Shelby County, Tennessee, on the grounds of Hospital #88 on the date in which the declaration alleges, and that the said accident involved an automobile being driven by Mrs. Murphy C. Wilds and owned by Murphy C. Wilds, and John M. Bertrand, a pedestrian; and it having been agreed that the three photostats and the chart correctly show the grounds of Veterans Hospital #88, and counsel having marked on the picture the area in which the accident occurred; and it further having been stated that two guards are stationed at the guard house at the entrance;' * * *
While the picture of the area and photostats referred to are not in the record, the stipulation is sufficient to present the sole contention of the defendants that Section 8671 of the Code was not applicable to the case at bar for the reason that the said accident 'did not occur on the highways of the State of Tennessee' as averred in the plea in abatement.
The trial judge sustained the defendant's plea and dismissed the case. The issue is now before us on appeal with the following assignments of error:
1. 'The Court below erred in sustaining the plea in abatement and in dismissing plaintiff's suit.
2. 'The Court erred in holding that Section 8671 had no application to the facts of this case.
3. 'The Court erred in holding that the locus quo where the accident happened was not a public road as defined by the Statutes of Tennessee, and that Section 8671 was inapplicable to the case at bar.'
The trial judge having ruled that the provisions of Code Section 8671 were not available as a means of securing jurisdiction of the person of the defendant by serving process on the Secretary of State, we here quote it in detail:
The trial judge sustained the defendants' contention that the foregoing Code Section was not available because the accident did not occur upon a 'public highway', as defined by Code Section 2696a, subsection 13, as follows:
"Highways.' Shall include any trunk line highway, state aid road or other public highway, road, street, avenue, driveway, parkway, or place under the control of the state or federal government, or any political subdivision thereof, dedicated, appropriated or opened to public travel or other use.'
We have thus set forth in detail the substance of the plaintiff's declaration as amended, the plea in abatement, the stipulation of the parties, and the applicable statutes, from which the issue for decision is clearly drawn.
The plea in abatement and the stipulation concede that the defendant's automobile was involved in the accident which resulted in plaintiff's injury, and that it occurred within and upon territory occupied by the Veterans Hospital at Memphis, Tennessee.
Responding to the contention of counsel that Code Section 8671, supra, should be given a strict construction, the same being in derogation of the common law, we hold that in doing so it must be given a reasonable construction, and which is in accord with its purposes. Now, what was the clear legislative intention in passing this statute? The answer is found in the very language of the statute which is that a nonresident of the State who shall make use of the privilege to operate a vehicle upon any highway of the State and his vehicle is involved in an accident, he consents that the Secretary of State shall be his agent for acceptance of service of process.
The conclusion is inescapable that the statute in question was intended to apply to traffic accidents in which the nonresident's car is involved. It must be conceded that the statute contemplated an accident upon some highway of the State. But it does not purport to limit its application to highways leading from town to town and recognized as a public highway, but rather to any traveled roadway within the State. Moreover, the statutory definition of 'highways' includes any 'public highway', 'driveway' or 'street' under the control of the State or Federal Government, or 'opened to public travel or other use.' It thus appears that if we are confined to the statutory definition, as herein quoted, it conclusively appears that a 'highway' includes any 'street, avenue, driveway, parkway, * * * [that is] opened to public travel or other use.' (Emphasis ours.)
The accident, out of which this suit arises, did not occur upon a private road, or driveway, in the sense that anyone who might choose to use it would be denominated as a trespasser. The stipulation is to the effect that it happened in a driveway located upon territory occupied by the Veterans Hospital. It would be a strain upon our imagination for us to suppose that the accident happened upon a driveway not open to public use, even conceding that there were guards at the hospital entrance gate. In the absence of any stipulation to the contrary we have the right to assume that the public was permitted to enter the hospital grounds without a special permit.
There is nothing in the record, other than the stipulation, to give the Court any information as to the length or character of the driveway upon which this accident occurred. Suffice it to say, it was sufficient for the accommodation of vehicular traffic; and it was being thus used at the time the defendant's automobile was involved in the accident. In these circumstances we think it was the plain intention of the Legislature to make this statute available to local citizens to bring a nonresident tort-feasor before the court by service of process upon the Secretary of State.
We think the trial judge, for whose opinion the Court has high respect, was in error in holding that the case of Ellis v. Georgia Marble Co., 191 Tenn. 229, 232 S.W.2d 45, controlled the case at bar. In that case the Court, speaking through Mr. Justice Burnett, held that the automobile of the defendant was not involved in any traffic accident. The accident which gave rise to the suit did not happen upon any highway. In regard to this issue, it was said, 191 Tenn. on page 234, 232 S.W.2d on page 47, of the opinion: 'Be this as it may, we are not pitching this opinion on the question of whether or not the alleged accident happened on or off of the highways of the State but are basing it on other...
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...that the vehicle was not being operated upon a public thoroughfare. The question it seems to us was put to rest in Bertrand v. Wilds, 198 Tenn. 543, 281 S.W.2d 390. In that case the injury occurred on a road within the grounds of a veterans hospital and, therefore, not upon a public highway......
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...or our unfound motorist substituted service of process statutes. The attention of the court has been directed to Bertrand v. Wilds, 198 Tenn. 543, 281 S.W.2d 390 (1955), wherein the accident complained of took place on a driveway of a federal veterans' hospital. The Court of Appeals of Tenn......
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...but puts them on an equality with residents by making them suable in the State Courts in the same way as residents. Bertrand v. Wilds, 198 Tenn. 543, 553, 281 S.W.2d 390; Wuchter v. Pizzutti, 276 U.S. 13, 48 S.Ct. 259, 72 L.Ed. 446; Kane v. State of New Jersey, 242 U.S. 160, 37 S.Ct. 30, 32......
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...Gwaltneys assert that the statute was promulgated to benefit the residents of Tennessee, not non-residents. See Bertrand v. Wilds, 198 Tenn. 543, 281 S.W.2d 390, 393 (1955). Additionally, the Gwaltneys assert that the statute's purpose was to benefit the injured person, not the person causi......