State v. Head

• Decision Date: 05 December 1952
• Citation: 253 S.W.2d 756,30 Beeler 576,194 Tenn. 576
• Parties: , 194 Tenn. 576 STATE ex rel. v. HEAD, Sheriff, et al.
• Court: Tennessee Supreme Court

Page 756

253 S.W.2d 756

30 Beeler 576, 194 Tenn. 576

STATE ex rel. v. HEAD, Sheriff, et al.

Supreme Court of Tennessee.

Dec. 5, 1952.

Petition to Rehear Denied Jan. 15, 1953.

Raymond A. Graham and Ray L. Brock, Jr., Chattanooga, for plaintiff.

Noone, Tanner & Noone, Chattanooga, for defendants.

PREWITT, Justice.

This is a suit for personal injuries against Grady Head as Sheriff of Hamilton County, and the Globe Indemnity Company of New York, surety on the sheriff's official bond, to recover for damages for injuries alleged to have been wrongfully inflicted upon the plaintiff, Paul Ivester, by a deputy sheriff while performing his official duty. The defendants interposed a demurrer to the declaration for the reason that the declaration showed on its face that the suit is one to recover for personal injuries inflicted on March 22, 1947, or more than four years before suit was instituted and was therefore barred by Section 8595 of the Code, which provides that all suits for personal injuries must be brought within a year from the time the injuries were inflicted. The plaintiff relies upon Sections 8600 and 8601 of Williams' Tennessee Code.

Section 8600 of the Code provides, among other things, as follows:

'* * * actions against the sureties of * * * sheriffs * * * and other public officers, for nonfeasance, misfeasance, and malfeasance in office * * * shall be commenced within six years after the cause of action accrued.'

Section 8601 provides in part as follows:

'* * * actions against * * * sheriffs * * * and other public officers on their bonds * * * shall be commenced within ten years after the cause of action accrued.'

Section 8595 of the Code provides as follows:

'Actions for libel, for injuries to the person, false imprisonment, malicious prosecution, criminal conversation, seduction, breach of marriage promise, and statutory penalties, [shall be brought] within one year after cause of action accrued.'

The trial judge sustained the demurrer, holding that the one year statute of limitations applied and that Section 8600 and 8601 did not contemplate permitting a plaintiff to bring personal injury suits after the expiration of one year from the time the cause of action accrued.

From a reading of the declaration, it appears that this is a suit for injuries to the person and this being true, the case falls within the rule announced in Bodne v. Austin, 156 Tenn. 353, 2 S.W.2d 104; Id., 156 Tenn. 366, 2 S.W.2d 100, 62 A.L.R. 1410, where it is said that the one year statute of limitations applies to a suit for personal injuries, no matter in what guise or form the suit may be brought. In this case, suit was brought against a dentist, alleging breach of contract to extract plaintiff's teeth and make her a new set, in that the dentist not only failed to extract all of her teeth but broke off one of them negligently and carelessly, with the result that she suffered pain, loss of time and was put to great expense, for which she sought compensatory damages. There was a plea of the one year statute of limitations, which was sustained.

The Court said:

'It is assumed in much of the discussion that the decision turns upon whether the action is in contract or ex delicto, grounded on the wrong. However, this court is of opinion that this is not determinative; that, conceding that in given malpractice cases there may be two independent causes of action, (1) breach of a contract, and (2) negligence constituting a tort, and conceding further, as quite generally held, that the right of election ordinarily exists as between these two causes of action, nevertheless, the effect of the Tennessee statutes is to limit the bringing of a suit to one year, whenever the action is one to recover damages for injuries to the person. In this view and construction of our statutes the question as to whether the ground or cause of the action is ex contractu or ex delicto, treated as vital in much of the discussion in the authorities, becomes nondeterminative here.'

The Court quoted at length from another case, and then said:

'In the same volume of A.L.R., on page 1314, the annotator says: 'Where a statute limits the time in which an action for 'injuries to the person' may be brought, the statute is applicable to all actions, the real purpose of which is to recover for an injury to the person, whether based upon contract or tort, in preference to a general statute limiting the time for bringing actions ex contractu'--citing many authorities.'

The Court...