Massey v. Sullivan County

• Citation: 464 S.W.2d 548,3 Pack 132,225 Tenn. 132
• Parties: , 225 Tenn. 132 Ralph Billy MASSEY and Danny Rhea Massey, Appellants, v. SULLIVAN COUNTY, Tennessee, Appellee.
• Decision Date: 01 March 1971
• Court: Supreme Court of Tennessee

Page 548

464 S.W.2d 548

3 Pack 132, 225 Tenn. 132

Ralph Billy MASSEY and Danny Rhea Massey, Appellants, v. SULLIVAN COUNTY, Tennessee, Appellee.

Supreme Court of Tennessee.

March 1, 1971.

David S. Haynes, Bristol, for appellants.

Walter O. Waddey, Kingsport, for appellee.

OPINION

HUMPHREYS, Justice.

Plaintiffs, Ralph Billy Massey and Danny Rhea Massey, sued Sullivan County, Tennessee, to recover $3,255.00, one-half of the amount allegedly paid in settlement of a suit against them for damages for injuries to person and property, growing out of an automobile collision in which Sullivan County was allegedly a tort-feasor. The suit was pitched squarely on the new Uniform Contribution Among Tort-Feasors Act, § 23--3101 et seq. The particular sections invoked are § 23--3104(a) T.C.A. and § 23--3105(a). ¹

The collision having occurred prior to the enactment of the new Act, and the suit being predicated upon a retroactive application of the Act, Sullivan County demurred on the grounds of this retroactive application and on the further ground, that, if the provisions of the Act invoked were to be given retroactive application, still, there could be no recovery, because the release on which the suit was predicated did not release Sullivan County from any liability it might have in the premises.

The first question we have is whether the provisions of the Act involved should be applied retroactively, and the answer to this question lies in the answer to the question whether the Act is purely procedural, or affects substantive rights.

With respect to this, regardless of what may have been said by other courts in other cases, the conclusion is inescapable that the purpose of this Uniform Act is to change the general rule that there is no contribution among joint tort-feasors and so to make a substantive change in the law. Anderson v. Saylors, 40 Tenn. 551 (1859); 18 Am.Jur.2d, Contribution, § 33.

Cases from other jurisdictions pro and con on this point are cited in the Court of Appeals opinion in Jacob G. Miller v. Dennis Sohns, filed December 3, 1969, Knoxville, with which we agree, holding the Act does not apply retroactively are: F. H. Ross & Co. v. White, 224 Ga. 324, 161 S.E.2d 857 (1968); Klaas v. Continental Southern Lines, 225 Miss. 94, 82 So.2d 705 (1955); Commercial Casualty & Insurance Co. v. Leonard, 210 Ark. 575, 196 S.W.2d 919 (1946); Kansas City Southern Ry. Co. v. McDaniel, 131 F.2d 89 (8th Cir. 1942) (applying Ark.Law); Norfolk & Southern R. Co. v. Beskin, 140 Va. 744, 125 S.E. 678 (1924); and Bargeon v. Seashore Trans. Co., 196 N.C. 776, 147 S.E. 299 (1929).

That this purpose is accomplished by an Act which mentions the procedures by which this primary change is to be availed of, does not change the true nature of the Act as substantive, and make it procedural.

The validity of these general observations is challengable in this state as to the right of contribution among tort-feasors, because, by case law, prior to the Act, the common law rule had been changed from no contribution to right of contribution, without regard to the active and passive negligence test. Davis v. Broad Street Garage, 191 Tenn. 320, 232 S.W.2d 355 (1950); American Cas. Co. v. Billingsley, 195 Tenn. 448, 260 S.W.2d 173 (1953); 7 Vanderbilt Law Review 948; 12 Vanderbilt Law Review 1367; 16 Vanderbilt Law Review 860; 16 Vanderbilt Law Review 895.

But, this does not alter the case. Plaintiffs rely as a basis of their suit on § 23--3105(a) and (c) T.C.A. This section of the Act radically changes the settled common law with respect to the effect of releases. This rule is stated in the History of a Lawsuit, 7th Ed., § 266, as follows:

'A release of one of two or more joint wrongdoers operates as a release and discharge of them all, and may be pleaded in bar of any subsequent action brought by the party injured against any of the others.'

So, here again, we have an alteration of the common law, resulting in the deprivation of a valuable common law right to those who might be affected by this sweeping change. Under such a circumstance, this section of the Act cannot be given retroactive application. So...