McCroskey v. Bryant Air Conditioning Co.

Decision Date07 April 1975
Citation17 UCCRep.Serv. 454,524 S.W.2d 487
Parties17 UCC Rep.Serv. 454 Kenneth R. McCROSKEY, etc., Appellant, v. BRYANT AIR CONDITIONING COMPANY et al., Appellees.
CourtTennessee Supreme Court

Dennis L. Tomlin, Larry L. Roberts, Nashville, for appellant.

S. McP. Glasgow, Jr., I. Dyke Tatum, Glasgow, Adams & Taylor, Nashville, for Bryant Air Conditioning Co.

John K. Maddin, Jr., Gracey, Maddin, Cowan & Bird, Nashville, for Tepsco Tennessee Pipe & Supply Corp.

W. W. McNeilly, Jr., Nashville, for Contractors Heating & Cooling, Inc.

H. Francis Stewart, Stewart & Estes, Nashville, for U. Grant Browning, and others.

OPINION

HENRY, Justice.

This products liability action presents the question of when the statute of limitations begins to run.

I.

The cause of action for personal injuries and wrongful death is based upon an allegedly defective gas furnace. Named as parties defendant are the manufacturer, the distributor, the general contractor, the sub-contractor and installer, and the owners of the apartment building. Recovery is predicated upon negligence, strict liability, misrepresentation and breath of warranty.

The record reflects that the gas furnace was manufactured in 1967 and distributed and installed on or about 9 February 1968. The injuries were sustained by Mattie J. McCroskey on 1 May 1971. Suit was filed 28 July 1971. Mrs. McCroskey died on 10 September 1971. After her death the suit was properly and timely revived, and an amended and substituted complaint was filed.

All parties moved the Court for a summary judgment upon the ground that the suit was barred by Sec. 28--304 T.C.A.

Relying primarily upon Jackson v. General Motors, 223 Tenn. 12, 441 S.W.2d 482 (1969) and Ford Motor Company v. Moulton, 511 S.W.2d 690 (Tenn.1974), and with evident reluctance (stating that he was 'bound to follow (laws and decisions) even those which may be offensive to one's traditional notions of fair play and substantial justice'), the trial judge sustained all motions, held that the cause of action was barred by the one year statute of limitations, and dismissed the suit.

In complete fairness to the Trial Judge, we acknowledge the correctness of his actions when confronted, as he was, with the applicable statutory and decisions law, by which he was bound.

This Court labors under no such handicap.

II.

The time sequence becomes important.

On the date of the sale of this product and on the date of its distribution, Sec. 28--304, T.C.A. read in pertinent part as follows:

Actions . . . for injuries to the person . . . shall be commenced within one (1) year after cause of action accrued.

On 31 January 1969 this Court filed its opinion in Jackson v. General Motors, supra, holding that under Sec. 28--304, T.C.A. the statute begins to run on the date of purchase of the defective commodity and not the date of the injury.

The Legislature reacted promptly and properly to correct the harsh results of this holding. Sec. 28--304 was amended, 1 by adding thereto the following:

For the purpose of this section, insofar as products liability cases are concerned, the cause of action for injury to the person shall accrue on the date of the personal injury not the date of the negligence or the sale of a product . . .

This act shall not apply to causes of action accruing prior to the effective date of this act. 2

The Code section as thus amended was in full force and effect on the date of injury (1 May 1971) in this case.

On the surface, the suit was permitted by the Code section as amended; however, under Jackson the plaintiff's cause of action Accrued on the date of sale (Feb. 9, 1968) and Expired Feb. 9, 1969, despite the fact that the injury had not yet occurred. This conclusion is mandated by the holding of this Court in Flynn v. Camp, 225 Tenn. 457, 470 S.W.2d 347 (1971).

Next in point of time the Legislature in 1972 again responded by further amending 3 Sec. 28--304, T.C.A., by deleting the language providing that the 1969 act would not apply to causes of action accruing prior to its effective date and adding to the Code section the following . . . and in said products cases no person shall be deprived of his right to maintain his cause of action until one (1) year from the date of his injury and under no circumstances shall his cause of action be barred before he sustains on injury. 4

This amendment, no doubt, was prompted by the holding of this Court in Flynn v. Camp, supra.

There the law stood until this Court decided Ford Motor Company v. Moulton, 511 S.W.2d 690 (Tenn.1974) holding that the 1972 amendment could not be applied retrospectively.

It was in this setting that the trial judge dismissed this suit. His action, followed by this appeal, forces this Court to re-examine Jackson v. General Motors, supra. We reexamine this case in the light of the evident public policy of our state as declared by the Legislature and of the recent decision of this Court in Teeters v. Currey, 518 S.W.2d 512 (Tenn.1974).

III.

We approach this analysis from a standpoint of reason, logic and fundamental fairness. These are criteria by which any rule of law should be tested. When we weigh the rule of Jackson v. General Motors, supra, in the balance, we find it to be wanting. It is only just for us to decree that in any tort action the cause of action accrues when, and only when, the force wrongfully put in motion, produces injury. We cannot embrace or continue any rule of law which charges a litigant with sleeping upon any right which he does not have.

We are challenged by the cogent and colorful language of Judge Jermoe Frank's dissenting opinion in Dincher v. Marlin Firearms Co., 198 F.2d 821 (2 Cir. 1952):

Except in topsy-turvey land, you can't die before you are conceived, or be divorced before ever you marry, or harvest a crop never planted, or burn down a house never built, or miss a train running on a non-existent railroad. For substantially similar reasons, it has always heretofore been accepted, as a short of legal 'axiom,' that a statute of limitations does not begin to run against a cause of action before that cause of action exists, i.e., before a judicial remedy is available to the plaintiff. Id. at 823.

In Campbell v. Colt Industries, Inc., 349 F.Supp. 166 (W.D.Va.1972) the court in holding that, whether based on negligence or breach of warranty, a cause of action for personal injuries did not accrue until the injury occurred, quoted from the Virginia case of Caudill v. Wise Rambler, Inc., 210 Va. 11, 168 S.E.2d 257 (1969), as follows:

Obviously, since the plaintiff had not been injured at the time she purchased the car, she could not then maintain an action for her injuries. To say, then, that her right of action accrued before her injuries were received is to say that she was without remedy to recover damages for her alleged injuries. Such an unjust and inequitable result is not the purpose of statutes of limitation. They are designed to compel the prompt assertion of an accrued right of action; not to bar such a right before it has accrued.

A right of action cannot accrue until there is a cause of action . . . In the absence of injury or damage to a plaintiff or his property, he has no cause of action and no right of action can accrue to him . . . Or, to state the matter another way, a plaintiff's right of action for damages for personal injuries does not accrue until he is hurt. Id. at 168.

In Everhart v. Rich's Inc., 229 Ga. 798, 194 S.E.2d 425 (1972) the Supreme Court of Georgia, in a products liability case, hold:

(t)he statute of limitations generally begins to run at the time damage caused by a tortious act occurs, at which time the tort is complete. 194 S.E.2d at 428.

The Court of Appeals of Michigan in Parrish v. B. F. Goodrich, 46 Mich.App. 85, 207 N.W.2d 422 (1973), also a products liability case, citing Connelly v. Paul Ruddy's Equipment Repair and Service Co., 388 Mich. 146, 200 N.W.2d 70 (1972) held:

(a) cause of action for damages arising out of a tortious injury to a person Accrues when all the elements have occurred and can be alleged in a complaint. 207 N.W.2d at 424.

Our own Chief Justice dissented from the majority opinion in Ford Motor Company v. Moulton, supra. We quote from his dissent:

The following principles are stated concisely in Hodge v. Service Machine Company, 438 F.2d 347 (6th Cir. 1971).

'A cause of action accrues when a suit may be maintained upon it. Black's Law Dictionary 37 (4th ed. 1951). A suit may not be brought upon a cause of action until it exists, and a cause of action does not exist until all its elements coalesce. In civil actions for damages, two elements must coalesce before a cause of action can exist: (a) a breach of some legally recognized duty owed by the defendant to the plaintiff; (b) which causes the plaintiff some legally cognizable damage.'

To hold that a products liability action, which is a recognized legal right, is barred by a statute of limitations before any injury is sustained, deprives a person of the opportunity of redress for an injury done him in his goods or person by due process of law, contrary to our Constitution. 511 S.W.2d at 697.

Lastly, we come to our recent case of Teeters v. Currey, supra. We said, in pertinent part:

We find it difficult to embrace a rule of law requiring that a plaintiff file suit prior to knowledge of his injury or, phrasing it another way, requiring that he sue to vindicate a non-existent wrong, at a time when injury is unknown and unknowable.

(T)he public policy of our state is opposed to re-requiring that suit be filed when circumstances totally beyond the control of the injured party make it impossible for him to bring suit.

We here merely recede from prior cases in order to establish a rule which we are convinced will be productive of results more nearly consonant with the demands of justice and the dictates of ethics and morality.

We again recede--prompted by the same demands and dictates. We overrule...

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