Layhew v. Dixon

• Decision Date: 22 September 1975
• Citation: 527 S.W.2d 739
• Parties: John G. LAYHEW, Appellant, v. James R. DIXON, Appellee.
• Court: Tennessee Supreme Court

Page 739

527 S.W.2d 739

John G. LAYHEW, Appellant, v. James R. DIXON, Appellee.

Supreme Court of Tennessee.

Sept. 22, 1975.

H. T. Finley, Parker, Nichol & Finley, Nashville, for appellant.

William W. Burton, Murfreesboro, for appellee.

OPINION

HARBISON, Justice.

The appellee, James R. Dixon, instituted this action for damages in the Circuit Court of Rutherford County, Tennessee, seeking recovery for the wrongful death of his wife and personal injuries sustained by him, in an automobile accident resulting from a collision between the automobiles of the parties.

An answer was filed on behalf of the appellant, denying liability, and there was also filed a document designated as a 'special plea' in which it was alleged that the appellee had executed a release of Jackson BrothersChevrolet, Inc. for all of the claims presently being asserted. It is alleged in this special plea that the appellant was an employee of the released party, and that the release therefore had the effect of discharging appellant.

Under Rule 7 of the Tennessee Rules of Civil Procedure, the only pleadings presently authorized are a complaint and an answer, unless there be counterclaims or third-party claims. The 'special plea' is therefore not currently a permissible pleading. It may, however, be treated as a part of the answer filed on behalf of the appellant, raising the issue of the effect of the release.

Based upon the foregoing pleadings, appellant filed a motion for summary judgment. In this motion appellant made reference to previous proceedings which had been filed in the U.S. District Court for the Middle District of Tennessee. This involved a suit by third parties, who are not involved in the present litigation, against Jackson Brothers Chevrolet, Inc., appellant and appellee. The motion for summary judgment alleges that in said previous action it was averred that appellant was an employee of Jackson Brothers Chevrolet, Inc., engaged in the scope and course of his master's business.

Attached to the motion for summary judgment was the general release in question.

Appellee filed a purported answer to the special plea, in which he pointed out that in the federal proceedings, appellant had denied that he was on the business of his employer at the time of the accident. Appellee then filed a reply to the motion for summary judgment, challenging the merits thereof.

There is filed in the record a certified copy of an application for a dealer's certificate, apparently for the purpose of showing ownership of the vehicle in question in the party released in the federal case. Also, pursuant to order of the circuit judge, certified copies of the pleadings in the previous federal case were filed, in which the plaintiffs there did allege a master-servant relationship between appellant and Jackson Brothers Chevrolet, Inc. In the answer filed to that complaint appellant denied that at the time of the accident he was engaged in the scope and course of his employment.

None of the federal pleadings were sworn to, and they represent no more than the statements of position of the parties to that action. While it is true that parties may not change positions which they have asserted in litigation, judicial estoppels are not favored and ordinarily do not arise out of mere unsworn pleadings. See Sturkie v. Bottoms, 203 Tenn. 237, 310 S.W.2d 451 (1958).

The trial judge overruled the motion for summary judgment filed on behalf of appellant, but did grant a discretionary appeal to this Court pursuant to T.C.A. § 27--305.

A serious question exists as to whether this appeal should properly have been taken to the Supreme Court or to the Court of Appeals under T.C.A. § 16--408. Ordinarily, where affidavits or other...