Young v. Hicks

• Decision Date: 18 December 1957
• Docket Number: No. 15806.,15806.
• Citation: 250 F.2d 80
• Parties: Forest YOUNG, Appellant, v. Jessie May HICKS and Willys Motors, Inc., a corporation, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

250 F.2d 80 (1957)

Forest YOUNG, Appellant, v. Jessie May HICKS and Willys Motors, Inc., a corporation, Appellees.

No. 15806.

United States Court of Appeals Eighth Circuit.

December 18, 1957.

Selden Blumenfeld and Blumenfeld & Abrams, St. Louis, Mo., filed brief for appellant.

Hiram W. Watkins, St. Louis Mo. (Lashly & Neun and Paul W. Lashly, St. Louis, Mo., were with him on the brief) for appellee Jessie May Hicks.

William W. Evans, St. Louis, Mo., (Evans & Dixon, St. Louis, Mo., were with him on the brief) for appellee Willys Motors, Inc.

Before SANBORN, JOHNSEN and VOGEL, Circuit Judges.

SANBORN, Circuit Judge.

This is an appeal from an order of February 7, 1957, dismissing the complaint of Forest Young in a personal injury action, upon the ground that the claim stated in her complaint was barred by limitations.

The action was brought in the Circuit Court of the City of St. Louis, Missouri, on July 3, 1956, and was removed by the defendants (appellees) to the United States District Court upon the ground of diversity of citizenship and amount in controversy. The claim stated in the plaintiff's (appellant's) complaint was, in substance, that on February 26, 1955, while the plaintiff was a guest passenger in an automobile manufactured by the defendant Willys Motors, Inc., and being driven by the defendant Jessie May Hicks on a public highway in Sumner County, Tennessee, the brakes of the automobile suddenly locked, causing it to skid into the ditch alongside the highway and to turn over; that she, the plaintiff, sustained serious personal injuries as a result of the accident; and that her injuries were due to the negligence of the defendants.

In the joint petition for removal filed by the defendants, it was stated that the defendant Hicks was a citizen and resident of Indiana; the defendant Willys Motors, Inc., a citizen and resident of Pennsylvania; and the plaintiff, a citizen and resident of Kentucky.

Each of the defendants filed a motion to dismiss the plaintiff's complaint on the ground that a statute of limitations of Tennessee (Section 28-304, Tennessee Code Annotated) provided that "Actions for * * * injuries to the person * * * shall be commenced within one (1) year after cause of action accrued"; that a statute of Missouri (Section 516.180, Missouri Revised Statutes 1949, V.A.M.S.) provided that "Whenever a cause of action has been fully barred by the laws of the state, territory or country in which it originated, said bar shall be a complete defense to any action thereon, brought in any of the courts of this state"; that the complaint of the plaintiff affirmatively showed that her action was brought more than one year after her claim "accrued"; and that it was therefore barred in Missouri as well as Tennessee.

The plaintiff asserted that the one-year statute of limitations of Tennessee had been tolled as to each of the defendants because of their nonresidence and absence from the state of Tennessee. This because of Section 28-112, Tennessee Code Annotated, which provided that "If at any time any cause of action shall accrue against any person who shall be out of this state, the action may be commenced within the time limited therefor, after such person shall have come into the state; and, after any cause of action shall have accrued, if the person against whom it has accrued shall be absent from or reside out of the state, the time of his absence or residence out of the state shall not be taken as any part of the time limited for the commencement of the action."

The District Court ruled that, since the plaintiff's claim arose from an automobile accident which occurred in Tennessee while the defendant Hicks was operating the automobile on a highway of that state, personal service of process could have been obtained upon her by serving the Secretary of State as her agent by virtue of Section 20-224, Tennessee Code Annotated,¹ and that therefore the applicable statute of limitations was not tolled as to that defendant. The court relied upon the case of Arrowood v. McMinn County, 173 Tenn. 562, 121 S.W.2d 566, 567, 119 A.L.R. 855, in which the following language appears:

"It is obvious that under Code, Section 8671 et seq., providing for service on non-resident operators on highways in this State through the Secretary of State, suit could have been commenced and service had at any time within the limitation of one year. The absence or non-residence of the defendants in no way obstructed or prevented suit against or service upon them. The applicable principle laid down by our decisions is that when the remedy of the suitor is complete and unaffected by the absence of the defendant, when his non-residence does not affect the right to sue, Code, Section 8581 (Act of 1865) providing that `the time of his absence or residence out of the state shall not be taken as any part of the time limited for the commencement of the action\' is without application."

It is apparent that the mere nonresidence of a defendant upon whom personal service of process can be had in the state of Tennessee does not toll the running of the state statute of limitations.

"Absence from the state and residence out of the state, in the sense of the statute (sec. 8581 Section 28-112, Tennessee Code Annotated), means such absence and such nonresidence as renders it impracticable at all times to obtain service of process." Spiegel, Inc., v. Luster, 31 Tenn.App. 342, 215 S.W.2d 16, 17. See, also, Akers v. Gillentine, 33 Tenn.App. 212, 231 S.W.2d 372; and 17 A.L.R.2d 516.

There can, we think, be no doubt that the defendant Hicks was subject to service of process in Tennessee, and that her nonresidence did not toll the applicable one-year statute of limitations of Tennessee, and that Section 516.180 of Missouri Revised Statutes 1949, V.A. M.S. therefore had the effect of barring the prosecution of her claim in Missouri. The granting of the motion of the defendant Hicks to dismiss the complaint was, in our opinion, correct.

The ruling of the District Court that the claim of the plaintiff against Willys Motors, Inc., was also barred by the Tennessee statute of limitations, under Missouri law, was based upon the court's conclusion that an affidavit filed by that defendant in support of its motion to dismiss the complaint showed that it was also subject to service of process within the state of Tennessee at all times subsequent to the happening of the accident in which the plaintiff was injured. The affidavit reads as follows:

"I, Henry H. Murphy, residing at 1106 Belmeade Avenue, Chattanooga, Tennessee, am employed by Willys Motors, Inc. as District Manager of District Six, which is the East Tennessee territory. I am the only representative of Willys Motors, Inc. who resides within District Six. I have been employed by Willys Motors, Inc., in my present capacity since Willys Motors became affiliated with Kaiser Motors Corp. sometime around the last part of 1953. Before that time, I was employed by Kaiser Motors Corp. in relatively the

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