Ellis v. Georgia Marble Co.
| Decision Date | 15 July 1950 |
| Citation | 27 Beeler 229,191 Tenn. 229,232 S.W.2d 45 |
| Parties | , 191 Tenn. 229 ELLIS v. GEORGIA MARBLE CO. et al. |
| Court | Tennessee Supreme Court |
Winchester & Bearman, R. Lee Winchester, Jr., all of Memphis, for plaintiff in error.
Waring, Walker, Cox & Lewis, Allen Cox, Jr. and W. V. Sanford, Jr., all of Memphis, for Georgia Marble Co. King, Ewing & Laughlin, Caruthers Ewing, all of Memphis, for C. Ingram.
The question presented by this appeal is whether or not nonresident defendants may be properly brought into the jurisdiction of this State under our substituted service statute, Code section 8671, by service on the Secretary of State for an accident which happened to the plaintiff after the nonresident vehicle had arrived at its designation in this State and was being unloaded by the plaintiff, a servant of the consignee of the goods to be unloaded, and an employee of the nonresident who transported the goods here.
To the declaration filed in this cause the respective defendants, defendants in error, filed pleas in abatement which pleas were demurred to. The trial judge overruled the demurrers and sustained the pleas in abatement and dismissed the suit. In due season the plaintiff below, plaintiff in error here, perfected his appeal to this Court and the matter has been ably briefed and argued before us.
The declaration in substance avers that the plaintiff was in the employment of the consignee of marble which was shipped to the consignee by the defendant Georgia Marble Company by way of a truck on which the marble was loaded in Georgia and transported to the consignee in Memphis, Tennessee. It is averred that the Georgia Marble Company employed its co-defendant C. Ingram to transport 'the aforesaid marble from the premises of the Georgia Marble Company in the State of Georgia and deliver the same to the premises of the plaintiff's employer on Madison Avenue in Memphis, Tennessee.'
It is further averred that the defendants only sent one employee with the load of marble and that therefore it was necessary for the consignee to furnish other help to assist in unloading the marble; that under such conditions the plaintiff was assisting to unload this marble, acting upon the assumption that the marble had been properly crated and stacked on the truck by the defendants as was their duty prior to its leaving the place of business of the defendants; that as a result of the negligence of the defendant the marble was not properly placed or stacked and secured to said truck and when the plaintiff and the employee of the defendants and others were in the act of unloading the marble a slab of this marble slipped off and seriously injured the plaintiff for which this suit is brought; that either as a result of the marble being negligently and improperly stacked on the truck or 'had been jolted out of place by the vibration of the truck and its travels over the highways between the town of Tate, Georgia and Memphis, Tennessee.' It is also averred that the marble was stacked in such an unsafe position and way, and was not properly supported and by reason of this fact it was caused to fall or topple from the racks or horses; that the racks or horses which supported the marble in transit were so constructed that they were far too light and fragile for the purpose of supporting the heavy goods and that the defendants knew or in the exercise of reasonable care knew that these racks or horses were not constructed in a proper manner or out of proper material; that this was not known to the plaintiff and due to the negligence in thus packing and constructing this delivery of marble the injuries to the plaintiff were brought about.
It is therefore averred that the defendants were making use of the highways of this State to deliver this marble and that by reason of this act they subject themselves to our substituted process statute, Code 8671. The plaintiff therefore asks that process be served under this statute, Code 8671, on the Secretary of State and the defendants brought into the jurisdiction of this Court.
The pleas in abatement of the defendants (separately filed) among other things aver that the declaration shows that the defendants are nonresidents of the State of Tennessee, 'and hence, not subject to the jurisdiction of this Court unless the nature and extent of its operations has brought it within the purview of those statutes setting up procedures for serving non-residents in certain particular situations.'
'That the alleged accident did not happen while this truck was being operated on the highways of Tennessee, but happened when the truck was stopped and being unloaded; and hence section 8671 is not applicable.'
'The above quoted Act applies only to actions arising out of accidents The above quotation is from the plea in abatement of Georgia Marble Company but the substance of this plea is the same as was filed by the defendant C. Ingram.
The declaration nowhere avers just where the marble was being unloaded when the injuries were received by the plaintiff. The declaration does aver that the marble was to be shipped from the 'premises of the Georgia Marble Company in the State of Georgia and deliver the same to the premises of the plaintiff's employer on Madison Avenue in Memphis, Tennessee.' Therefore it is perfectly obvious, and the only possible inference to be drawn, is that the marble had arrived at its designation in Tennessee, and was on the premises of the consignee of the marble where it was being unloaded. The inference of course being that the truck and the marble were off of the highways of the State. 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 matters hereinafter discussed. Subsequent to argument here we have been furnished the original of an order by the lower court allowing an amendment to the declaration showing that it was admitted below that the unloading took place 'in a public alley-way at the rear entrance of the place of business of consignee.'
The sole question is whether or not service of process by this substituted service under provisions of Code section 8671, in view of the facts as alleged in this declaration, are...
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