Dixie Feed & Seed Co. v. Byrd

• Citation: 52 Tenn.App. 619,376 S.W.2d 745
• Court: Court of Appeals of Tennessee
• Decision Date: 20 July 1963
• Parties: DIXIE FEED & SEEN COMPANY, Inc., James Lee Johnson and Dixie Portland Flour Mills, Inc., Plaintiffs in Error, v. Stanifer G. BYRD, Defendant in Error.

Page 745

376 S.W.2d 745

52 Tenn.App. 619

DIXIE FEED & SEEN COMPANY, Inc., James Lee Johnson and Dixie Portland Flour Mills, Inc., Plaintiffs in Error, v. Stanifer G. BYRD, Defendant in Error.

Court of Appeals of Tennessee, Eastern Section.

July 20, 1963.

On Rehearing Sept. 26, 1963.

Certiorari Denied by Supreme Court March 5, 1964.

Folts, Bishop, Thomas, Leitner & Mann, Chattanooga, for plaintiffs in error Dixie Feed & Seed Co. and James Lee Johnson.

Strang, Fletcher, Carriger & Walker, Chattanooga, for plaintiff in error Dixie Portland Flour Mills, Inc.

H. Keith Harber, Chattanooga, for defendant in error.

McAMIS, Presiding Judge.

Stanifer G. Byrd sued Dixie Feed & Seed Company, Inc., and James Lee Johnson, driver of its truck, and Dixie Portland Flour Mills, Inc., for personal injuries sustained when the truck backed into a cinder block wall on the premises of the Flour Mills causing it to topple and fall on plaintiff as he walked along an abutting sidewalk in Chattanooga. There was a verdict and judgment against all of the above named defendants for $380,000.00 from which they prosecute the present appeal.

Dixie Feed & Seed Company, Inc., is a nonresident corporation with situs at Comer, Georgia, where its driver, James Lee Johnson resides. At the time plaintiff was injured, Dixie Portland Flour Mills, Incorporated, occupied, under a lease contract, premises on King Street in Chattanooga where it received, stored and processed grain. A parking area fronting on King Street was enclosed with a cinder block wall approximately 11 feet high. Truck drivers delivering grain were directed to enter this area and park awaiting an opportunity to unload. On one or more previous trips, defendant Johnson had been told by agents of the Flour Mills to park his truck in this area.

On the day of the accident, Johnson drove the truck of the Feed & Seed Company loaded with grain into this parking area to await his turn to unload. He backed the truck within about 1 foot of the wall and cut the switch. Thinking the motor had stopped, he took his foot off the clutch. Thereupon the truck being in reverse gear lurched backward, struck the wall and toppled it upon plaintiff inflicting grievous injuries, the nature and extent of which will be hereinafter detailed. Johnson was aware that the truck had acted in this way on one previous occasion.

Johnson and the Feed & Seed Company were brought before the court by service of process on the Secretary of State pursuant to the provisions of T.C.A. § 20-224 giving the courts of Tennessee jurisdiction over nonresident owners and operators of vehicles registered in a foreign state. Both filed pleas in abatement on the ground, among others, that since the truck was upon private property and was not being operated on a public highway the statute authorizing service of process upon the Secretary of State has no application.

We think, under the unique circumstances of this case, the statute applies. The offending vehicle upon coming into the State made use of the public highways of Tennessee for the purpose of delivering grain at the point where the injury occurred in consummation of the owner's contract. Delivery by motor truck at that point could not have been effected without the use of the public highways of Tennessee. And, while there is no proof that the rear of the truck crossed the property line, it was within less than a foot of the street line when it struck the wall and the force of the impact caused the wall to fall on the sidewalk of King Street, a public thoroughfare. Under these circumstances it would be doctrinaire in the extreme to say that a person so injured is to be denied the benefit of the statute solely on the ground 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 or road. The plea in abatement in that case asserted a lack of jurisdiction, to which the author of the opinion, Mr. Chief Justice Neil, after noting that the vehicle had used the public highways to reach the hospital grounds, responded:

'It is our well-considered opinion that the statute applies to the operation of motor vehicles upon public highways by nonresidents and also to the operation of such vehicles on private property, as a necessary incident to public travel upon the streets and highways of this State. Paduchik v. Mikoff, 158 Ohio St. 533, 110 N.E.2d 562, construing the statute of Ohio, which is similar to ours, and Sipe v. Moyers, 353 Pa. 75, 44 A.2d 263, construing the Pennsylvania statute, which is also similar in all respects to our own statute.

'In Paduchik v. Mikoff, supra, the defendant's contention was identical with the defendant, petitioner in the instant case, that is, that the 'substitution of service statute' was not applicable unless the accident happened on a public highway. The sole issue involved the jurisdiction of the local courts of Ohio over the person of a nonresident who was enjoying the privilege of using the state's highways. In ruling upon this issue, it was held (158 Ohio St. 533, 110 N.E.2d 567):

"Unquestionably, such jurisdiction extends to the operation of motor vehicles on the public highways of the state and, in the opinion of this court, it also extends to the operation of the motor vehicle operated on private property in private garages and on private parking lots as an incident to its operation on such highways.' (Emphasis supplied.)

'It is true there are cases to the contrary, such as where the accident happened while operating a 'combine harvester' in a wheat field in such a manner as to set fire to and destroy twenty-one (21) acres of wheat. Kelley v. Koetting, 164 Kan. 542, 190 P.2d 361, and other cases cited by the Ohio Court.

'The living force of our statute, however, and similar statutes in other states, clearly serves the public interest. These statutes, reasonably adopted to remedy the evil of an ever increasing number of accidents arising from the operation of motor vehicles both on our highways and elsewhere, represent a constitutional exercise of the police power.'

In Ellis v. Georgia Marble Co., 191 Tenn. 229, 232 S.W.2d 45, the statute was invoked to bring in the nonresident owner of a truck from which the plaintiff when injured was unloading marble. The declaration charged negligent packing of the marble before it left Georgia. In an opinion by Mr. Justice Burnett, the statute was held inapplicable not because the truck was standing on private property but, as we read the opinion, because the vehicle was never 'involved' in an accident. That case is not in point under the facts of this case.

The first assignment of the Feed & Seed Company and Johnson complaining of the overruling of their plea in abatement is overruled. It is unnecessary to consider whether the Feed & Seed Company was amenable, as a foreign corporation doing business in Tennessee, to process on the Secretary of State under T.C.A. § 48-923.

The Feed & Seed Company insists the Court erred in refusing to charge its special request to the effect that any recovery allowed plaintiff would not be subject to the payment of Federal Income taxes. In the excellent brief of counsel it is very properly conceded that this action of the Court is in accord with the weight of authority. It is said, however, that the minority view is supported by the better reasoned cases and should be followed in this state. We can not agree.

In connection with a comprehensive annotation on this subject it is said editorially at 63 A.L.R.2d 1398:

'From the personal injury cases dealing with the present topic, it can be said that the more general view, supported directly and inferentially by the decided majority of the American cases, is that in fixing damages for accrued loss of earnings or for impairment of future earning capacity because of personal injuries, the income tax consequences of the injury and the award should not be taken into consideration; on the contrary, the award of damages should be based upon the plaintiff's gross earnings or earning capacity and should not be reduced because of any income tax saving which may result to the plaintiff from the fact that the damages will be exempt from income tax.'

As appears from an analysis of the cases appearing in the above annotation, the reasons advanced in support of the majority view are that to deduct the anticipated tax saving from the recovery would nullify the tax benefit conferred by Congress in expressly exempting damages for personal injuries and would unduly complicate the trial of personal injury cases. In addition, we think, to attempt to do so would inject into the already difficult and complicated computation of such damages factors which change from time to time, such as the rate of taxation and the number of plaintiff's exemptions, and allowed juries to indulge in speculation and conjecture in arriving at the amount to be deducted.

It is next insisted the Court erred in excluding evidence offered to show plaintiff's optional and compulsory retirement ages as a postal employee, his retirement benefits and the payment to him after he was injured of accumulated sick leave benefits

In resolving this question it is important to keep in mind that in an action to recover for personal injuries it is not the loss of time or earnings that the wrongdoer must pay for but loss of the ability to earn that constitutes an element of damages. This was made clear by Judge Felts, now Mr. Justice Felts, in Southern Coach Lines, Inc. v. Wilson, 31 Tenn.App. 240, 214 S.W.2d 55, where it was said:

'It is true this distinction is often not observed. Indeed, it is of no preactical importance in some cases. For instance, in a case where the plaintiff was earning and, if he had not been injured,...