Chapter 1
Parties to Actions

20-1-101. [Repealed.]

Compiler's Notes. Former § 20-1-101 (Code 1858, § 2795 (deriv. Acts 1825, ch. 29, § 1); Shan., § 4492; Code 1932, § 8619; T.C.A. (orig. ed.), § 20-101), concerning real plaintiffs, was repealed by Acts 1991, ch. 273, § 2.

20-1-102. Indemnification of nominal plaintiff.

The person whose name is used in the prosecution of a suit may, at any time during the progress of the cause, require the party for whose benefit the action is brought to give bond, with good security, to indemnify the person whose name is used in the prosecution of the suit against all damages and costs.

Code 1858, § 2796; Shan., § 4493; Code 1932, § 8620; T.C.A. (orig. ed.), § 20-102.

Cross-References. Actions by commissioner of institutions on behalf of penitentiary, § 41-1-112.

Costs against real plaintiff, § 20-12-109.

Joinder of lienors in suit against boat, § 66-19-203.

Joinder of plaintiffs in suit to enforce mechanics' lien, § 66-11-131.

Party acting as own attorney, § 23-1-109.

Real party in interest, Tenn. R. Civ. P. 17.01.

Textbooks. Tennessee Jurisprudence, 3 Tenn. Juris., Assignments, § 53; 4 Tenn. Juris., Bankruptcy, § 27; 10 Tenn. Juris., Drains and Sewers, § 12; 20 Tenn. Juris., Parties, §§ 1, 4.

Law Reviews.

Parties and Claims, 4 Mem. St. U. L. Rev. 280.

Comparative Legislation. Parties to actions:

Ala.  Code § 6-7-1 et seq.

Ark.  Code § 16-61-101 et seq.

Ga. O.C.G.A. § 9-11-17 et seq.

Ky. R. C. P. 17 et seq.

Miss.  Code Ann. § 11-7-1 et seq.

Mo. Rev. Stat. § 507.010 et seq.

N.C.  Gen. Stat. § 1A-1, Rule 17 et seq.

Va.  Code § 8.01-5 et seq.

Cited: Bloch v. Busch, 160 Tenn. 21, 22 S.W.2d 242, 1929 Tenn. LEXIS 71 (1929).

NOTES TO DECISIONS

1. Beneficiary of Section.

The right conferred by this section is given to the nominal complainant or plaintiff, not to the defendant. Pritchard v. Johnson-Toby Constr. Co., 155 Tenn. 571, 296 S.W. 17, 1926 Tenn. LEXIS 81 (1927).

2. Pauper's Oath.

The real plaintiff may be required to give security for costs, but if he is a resident of Tennessee he has the right to take the pauper's oath. Metropolitan Life Ins. Co. v. Brown, 25 Tenn. App. 514, 160 S.W.2d 434, 1941 Tenn. App. LEXIS 141 (Tenn. Ct. App. 1941).

Collateral References. 59 Am. Jur. 2d Parties §§ 24, 38-44, 255.

67A C.J.S. Parties §§ 13-15.

Alien enemy as real party in interest, right to maintain suit. 137 A.L.R. 1338, 147 A.L.R. 1298, 148 A.L.R. 1384, 149 A.L.R. 1452, 150 A.L.R. 1418, 154 A.L.R. 1447.

Amendment of verdict as to parties, reassembling jury after discharge, for purpose of. 66 A.L.R. 549.

Automobile liability insurance, who may recover indemnity granted by omnibus coverage clause. 106 A.L.R. 1251, 126 A.L.R. 544, 15 A.L.R.3d 711.

Automobile, liability of one undertaking to repair, for injury to third person. 52 A.L.R. 857.

Bank directors or officers, who may maintain action against, for civil liability for damages resulting from false reports or statements. 114 A.L.R. 478.

Bank in charge of liquidating officer who refuses or fails to enforce liability of person to bank, right of creditors to maintain action for that purpose, and conditions of such right. 97 A.L.R. 169, 116 A.L.R. 783.

Beneficiaries of decedent's estate, right of, to maintain action independent from executor or administrator to enforce contracts or other transactions entered into by executor or administrator or behalf of the estate. 135 A.L.R. 1130.

Bond given by owner of property constructing building thereon to mortgagee, right of person furnishing material or labor to maintain action. 77 A.L.R. 177, 118 A.L.R. 57.

Bondholder's right to maintain action against trustee for money received by trustee to discharge bond or coupon. 64 A.L.R. 1186.

Bonds of municipality, taxpayer's right of action for sale at less than par, in violation of statute. 91 A.L.R. 72, 162 A.L.R. 396.

Boundary line, private, necessary or proper parties in suit or proceeding for establishment of. 73 A.L.R.3d 948.

Branch banks, proper name in which to sue. 50 A.L.R. 1355, 136 A.L.R. 471.

Bucket shops or bucket-shop transactions, violation of statute relating to, as ground of action by customer or patron. 113 A.L.R. 853.

Care to be exercised or precautions to be taken for protection of third persons, availability in action by third person for damages against public contractor, of provisions in contract as to. 69 A.L.R. 522.

Carriers, right of assignee of aggrieved party to maintain action to recover excessive freight charges. 13 A.L.R. 298.

Charitable trust, right of trustees to maintain suit to administer or enforce. 62 A.L.R. 901, 124 A.L.R. 1237.

Collective labor agreements, who may enforce. 95 A.L.R. 51.

Contingent or defeasible future interest, right of owner of, to maintain action for relief in respect of acts affecting property. 144 A.L.R. 769.

Conveyance fraudulently procured from decedent, right of executor or administrator to set aside. 53 A.L.R. 364.

Corporate dividends wrongfully paid, action on behalf of creditors to recover. 55 A.L.R. 120, 76 A.L.R. 885, 109 A.L.R. 1381.

Corporate name, right of bondholders to maintain action to prevent use by another corporation. 66 A.L.R. 1030, 72 A.L.R.3d 8.

Corporate officer's liability for incurring excessive debts, individual creditor's right to enforce. 43 A.L.R. 1147.

Corporate stock, shares as within statute enabling assignee to maintain action in his own name. 193 Iowa 1096, 184 N.W. 823, 1922 Iowa Sup. LEXIS 168, 23 A.L.R. 1322.

Corporation's creditors, right to recover dividends wrongfully paid, or to enforce liability of directors for wrongfully declaring them. 55 A.L.R. 116, 76 A.L.R. 885, 109 A.L.R. 1381.

Corporation's liability for debts of predecessor, old creditors' right to sue on. 149 A.L.R. 787.

Decedent's estate, right of creditors to maintain action in interest of. 158 A.L.R. 729.

Delay or mistake, right of undisclosed principal to recover against telegraph company because of. 72 A.L.R. 1198.

Devise or bequest of property as compensation for services, parties in action for breach of contract as to. 69 A.L.R. 104.

Dividends, suit to compel payment. 55 A.L.R. 133, 76 A.L.R. 885, 109 A.L.R. 1381.

Dividends wrongfully paid, suit to recover, or to enforce liability of directors for wrongfully declaring them. 55 A.L.R. 73, 76 A.L.R. 885, 109 A.L.R. 1381.

Divorce or separation, enforcement by third person as beneficiary of contract between husband and wife to prevent or end. 11 A.L.R. 287.

Easement, right of reversioner or remainderman to maintain action or suit in respect of. 138 A.L.R. 1006.

Eminent domain, wife or widow as necessary party to proceeding to condemn her husband's real property. 5 A.L.R. 1347, 101 A.L.R. 697.

Enforceability by purchaser of business, of covenant of third person with his vendor not to engage in similar business. 4 A.L.R. 1078, 22 A.L.R. 754.

Enforcement of option contained in lease for purchase of property. 38 A.L.R. 1162.

Escrow, proper party defendant in action for refusal of depository to deliver instrument or property placed in, notwithstanding performance of conditions of delivery. 95 A.L.R. 298.

Excessive freight charge, who may maintain action to recover back. 13 A.L.R. 289.

Explosives, violation of statute as ground of action in favor of one injured in person or property by explosion. 12 A.L.R. 1309.

Fire or marine policy taken out by bailee, warehouseman, or carrier, right of owner to sue. 61 A.L.R. 720.

Guaranty, who may enforce. 41 A.L.R.2d 1213.

Harassment or garnishment by employee's creditor as constituting misconduct connected with employment so as to disqualify employee from unemployment compensation. 86 A.L.R.2d 1013.

Heir or next of kin, standing to attack gift or conveyance made by ancestor in his lifetime, as affected by will by which he is disinherited in whole or part. 112 A.L.R. 1405.

Illegitimate child, validity and construction of putative father's promise to support or provide for. 20 A.L.R.3d 500.

Indemnity or liability insurer, parties plaintiff in action against, by injured person, under statutory or policy provisions. 85 A.L.R. 41, 106 A.L.R. 516.

Inducing breach of contract, who may maintain action for. 84 A.L.R. 49, 26 A.L.R.2d 1227, 96 A.L.R.3d 1294, 44 A.L.R.4th 1078.

Insurance agents or brokers, proper party to maintain action to enforce statutory liability of, in respect of policies of foreign insurance companies not authorized to do business in the state. 131 A.L.R. 1097.

Insurance, right of third person to sue upon promise made by beneficiary to insured, to pay proceeds to third person. 102 A.L.R. 594.

Insurance, who may enforce policy containing facility of payment clause. 166 A.L.R. 28.

Invalid or unenforceable contract, right of taxpayer to recover back payments made under. 140 A.L.R. 583.

Legislative body of state or municipality, who may obtain injunction against. 140 A.L.R. 454.

Local improvements, power of municipality to transfer or assign its right to enforce assessment or lien for. 55 A.L.R. 667.

Massachusetts or business trusts. 88 A.L.R.3d 704.

Mere possession in plaintiff as basis of action for wrongfully taking or damaging personal property. 150 A.L.R. 163.

Officers or directors, parties plaintiff in action to enforce statutory liability of, in respect of loans or advances to stockholders or officers. 129 A.L.R. 1261.

Option to purchase contained in lease, right of assignee to enforce. 38 A.L.R. 1163.

Parties to action for specific performance of contract for conveyance of realty after death of party to contract. 43 A.L.R.2d 938.

Partner, party plaintiff in action against, for profits earned subsequently to death or dissolution. 55 A.L.R.2d 1391.

Privacy, who may assert right of. 138 A.L.R. 22, 168 A.L.R. 446, 11 A.L.R.3d 1296, 57 A.L.R.3d 16.

Private right of action for violation of Civil Rights Act. 171 A.L.R. 920.

Promoters, right of corporation to sue on contract made before its organization. 66 A.L.R. 1425.

Proper party plaintiff, under real party in interest statute, to action against tort-feasor for damage to insured property where loss is entirely covered by insurance. 13 A.L.R.3d 229.

Reciprocal insurance association, proper party plaintiff in actions by, or on behalf of. 94 A.L.R. 851, 141 A.L.R. 765, 145 A.L.R. 1121.

Recovery by conditional seller or buyer, or person standing in his shoes, against third person for damage or destruction of property. 67 A.L.R.2d 582.

Refusal to deal with corporation as giving stockholder right of action. 59 A.L.R. 1099.

Resale price, right of manufacturer to enforce contract as to, made by retailer with middleman. 7 A.L.R. 488.

Rescission of deed or land contract for grantee's breach of agreement to support grantor, right of heirs of grantor to maintain suit for. 112 A.L.R. 720.

Right of beneficiary to enforce contract between third persons to provide for him by will. 2 A.L.R. 1193, 33 A.L.R. 739, 73 A.L.R. 1395.

Right of one brought into action as a party by original defendant upon ground that he is or may be liable to latter in respect to matter in suit, to raise or contest issues with plaintiff. 78 A.L.R. 327.

Right of plaintiff suing jointly with others to separate trial or order of severance. 99 A.L.R.2d 670.

Right of pledgor of commercial paper to maintain action thereon in his own name. 43 A.L.R.3d 824.

Right of substitution of successive personal representatives as party plaintiff. 164 A.L.R. 702.

Right of third person or his creditors or representatives to enforce contract made by defendant to induce promisee to enter into contractual or other relations with a third person. 129 A.L.R. 172.

Right of third person to enforce contract between others for his benefit. 81 A.L.R. 1271, 148 A.L.R. 359.

Rights of beneficiary under obligation or deposit payable to him at death of holder or depositor if not previously paid to latter. 131 A.L.R. 967, 155 A.L.R. 174, 158 A.L.R. 1464, 161 A.L.R. 304.

Sealed instrument, right of third person to maintain action at law. 47 A.L.R. 5, 170 A.L.R. 1299.

Shares of corporate stock as within statute enabling assignee to maintain action in his own name. 193 Iowa 1096, 184 N.W. 823, 1922 Iowa Sup. LEXIS 168, 23 A.L.R. 1322.

Subcontractor, liability for damages to or loss of profits of contractee in principal contract who discontinues same. 48 A.L.R. 458.

Subrogation of insurer to extent of loss paid by it, right of, as affecting question of proper party plaintiff in action against tort-feasor for damage to insured property. 96 A.L.R. 864, 157 A.L.R. 1242.

Subscription to stock in corporation to be formed, who may enforce. 61 A.L.R. 1504.

Tax wrongfully exacted on shares of its stock, corporation paying as proper party to maintain action for its recovery. 84 A.L.R. 107.

Third person, remedy of mortgagee or other holder of lien on real property against, for damage to or trespass on property. 37 A.L.R. 1120, 48 A.L.R. 1156.

Timber contract, necessary and proper parties in action growing out of delay in performance of. 164 A.L.R. 461.

Title, joinder of claims to separate parcels in suit to quiet title, or to remove cloud on, or to determine adverse claims of land. 118 A.L.R. 1400.

Trust receipt, right of one giving, to maintain action for purchase-price against one to whom he sells. 49 A.L.R. 314, 87 A.L.R. 302, 101 A.L.R. 453, 168 A.L.R. 359.

United States war savings bonds, judicial decisions regarding. 168 A.L.R. 245.

Vendee under executory contract, right to bring action against third person for damage to land. 151 A.L.R. 938.

Ward's right, after majority, to maintain action on contracts entered into by guardian on ward's behalf. 102 A.L.R. 269.

Waste, who may maintain action to recover multiple damages against tenant committing. 46 A.L.R. 774.

Water user as necessary party to litigation involving right of ditch or canal company or irrigation or drainage district from which he takes water. 100 A.L.R. 561.

Who may be regarded as injured in his business or property within provision of antitrust acts as to persons who may recover damages resulting from violation of the act. 139 A.L.R. 1017.

Zoning ordinance, injunction at suit of property owners against violation of. 129 A.L.R. 885.

Parties 6.

20-1-103. Action on bond.

For any breach of an official bond or undertaking of any officer, executor, administrator or guardian, or of any bond or undertaking required to be given by law for the security of the public generally or of particular individuals, the party aggrieved may, without assignment, bring suit on the breach for the aggrieved party's use, giving security for costs and being liable therefor as if the suit had been brought in the aggrieved party's own name.

Code 1858, § 2797 (deriv. Acts 1822, ch. 16, § 4; 1825, ch. 45, §§ 1, 2, 5; 1826, ch. 27, § 1; 1851-1852, ch. 144, §§ 1, 2); Shan., § 4494; Code 1932, § 8621; T.C.A. (orig. ed.), § 20-103.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), §§ 75, 78, 84.

Tennessee Jurisprudence, 14 Tenn. Juris., Guardian and Ward, § 31; 21 Tenn. Juris., Public Officers, § 38.

Cited: Fort v. Dixie Oil Co., 170 Tenn. 464, 95 S.W.2d 931, 1936 Tenn. LEXIS 16 (1936).

NOTES TO DECISIONS

1. Effect of Statute.

For the failure of a public official to discharge any of his duties, he is civilly responsible to the party injured and all parties aggrieved may maintain actions upon his bond to recover damages sustained by them. State use of Cardin v. McClellan, 113 Tenn. 616, 85 S.W. 267, 1904 Tenn. LEXIS 55 (1904).

This section extended the right of action against public officers only to the extent of allowing the injured party to sue without an assignment from the payee of the bond, and did not otherwise extend the right to sue such officers. Brown v. Brown, 16 Tenn. App. 230, 64 S.W.2d 59, 1933 Tenn. App. LEXIS 6 (Tenn. Ct. App. 1933).

The effect of this statute is equivalent to an assignment of the bond to the person aggrieved to the extent of his damage, not exceeding, of course, the penalty of the bond. Kirby v. Kirby, 185 Tenn. 408, 206 S.W.2d 404, 1947 Tenn. LEXIS 345 (1947).

2. Real Plaintiff.

Any party aggrieved can sue on the bond in the name of the state, and in such cases the suing party is considered the real plaintiff. Tennessee use of United States v. Hill, 60 F. 1005, 1894 U.S. App. LEXIS 2152, 24 L.R.A. 170 (6th Cir. Tenn. 1894).

3. —Diversity of Citizenship.

The fact that suit to recover against a sheriff and his sureties, for the wrongful killing of one under arrest, was brought by a nonresident administratrix in the name of the state, did not prevent diversity of citizenship since the state was only a nominal party and for the purpose of jurisdiction the administratrix was the real party in interest. Chambers v. Anderson, 58 F.2d 151, 1932 U.S. App. LEXIS 4660 (6th Cir. Tenn. 1932).

4. Naming State as Party — Necessity.

A bill in chancery may be maintained in the name of the beneficiaries under an administrator's bond and his bond as special commissioner to sell decedent's lands in a suit in chancery, without making the state a party thereto, though both bonds are made payable to the state of Tennessee. Brandon v. Mason, 69 Tenn. 615, 1878 Tenn. LEXIS 145 (1878).

By both statute and judicial interpretation, the person for whose use the suit is brought is the real complainant of record, and, in chancery, is the real complainant in fact, and while technically a suit on any of the bonds mentioned in state for the use of the party aggrieved, nevertheless the practice of suing directly in the name of the real complainant, and not in the name of the state, has long prevailed, and been directly sanctioned by the supreme court of the state. Kirby v. Kirby, 185 Tenn. 408, 206 S.W.2d 404, 1947 Tenn. LEXIS 345 (1947).

5. Suit by State for Use of County.

Where suit on an official bond is expressly authorized by resolutions of the quarterly county court (now county legislative body), it may properly be brought in the name of the state for the use of the county. State use of Giles County v. Abernathy, 159 Tenn. 175, 17 S.W.2d 17, 1928 Tenn. LEXIS 73 (1929).

6. Amendment to Make State Nominal Plaintiff.

A declaration failing to name the state as party plaintiff may be amended, upon application, so as to correct the error, and, if leave is granted so to amend and the cause is tried as if the amendment had been made, even though it is not made, the necessity for making it is obviated. Chambers v. Anderson, 58 F.2d 151, 1932 U.S. App. LEXIS 4660 (6th Cir. Tenn. 1932).

7. Particular Bonds.

8. —Bond for Return of Child.

Where bond is given in compliance with decree of court to insure the return of a child to the father and the condition of the bond is broken, the party may sue on bond for his own use. State ex rel. Hooten v. Hooten, 1 Tenn. App. 154, — S.W. —, 1925 Tenn. App. LEXIS 23 (Tenn. Ct. App. 1925).

9. —Executor's Bond.

The period of liability of an executor's surety is the duration of administration and until it has been closed in manner prescribed by law, and the presumption is that surety contracted with reference to law as it existed at time of bond's execution, with applicable law becoming a part of the bond. Hartford Acci. & Indem. Co. v. White, 22 Tenn. App. 1, 115 S.W.2d 249, 1937 Tenn. App. LEXIS 70 (Tenn. Ct. App. 1937).

10. —Mine Inspector's Bond.

A district mine inspector was civilly responsible to the parties injured by reason of failure to perform his duties, and any party aggrieved could maintain an action upon the bond of such inspector to recover the damages sustained by him. State use of Lay v. Clymer, 27 Tenn. App. 518, 182 S.W.2d 425, 1943 Tenn. App. LEXIS 153 (Tenn. Ct. App. 1943).

11. —Ne Exeat Bond.

Suit to recover on ne exeat bond in divorce proceeding could be brought directly by wife for her own use and the use of the children though bond was payable to state. Kirby v. Kirby, 185 Tenn. 408, 206 S.W.2d 404, 1947 Tenn. LEXIS 345 (1947).

12. Declarations of Nominal Plaintiff — Admissibility.

Declarations or admissions of nominal plaintiff were inadmissible, where made after he has parted with his interest in the subject matter of the suit, and the party for whose use the suit was prosecuted had acquired the exclusive right in the same subject matter. Moyers v. Inman, 32 Tenn. 80, 1852 Tenn. LEXIS 19 (1852).

Collateral References. 63 Am. Jur. 2d Public Officers §§ 463-465.

67 C.J.S. Officers § 303.

Officers 140.

20-1-104. Deserted wife as party.

Where a husband has deserted his family, the wife may prosecute or defend, in the husband's name, any action that the husband might have prosecuted or defended. The wife may also sue and be sued in her own name for any cause of action accruing subsequently to such desertion.

Code 1858, § 2805; Shan., § 4505; Code 1932, § 8632; T.C.A. (orig. ed.), § 20-104.

Cited: Rhea v. Iseley, 1 Shan. 220 (1871); St. Louis, I. M. & S. R. Co. v. Leazer, 119 Tenn. 1, 107 S.W. 684, 1907 Tenn. LEXIS 1 (1908); Jenkins v. General Cab Co., 175 Tenn. 409, 135 S.W.2d 448, 1939 Tenn. LEXIS 52 (1940).

NOTES TO DECISIONS

1. Construction.

A deserted wife can maintain suit in her husband's name, upon any cause of action that had accrued to him, and which he could have asserted before the desertion, and she may sue in her own name upon any cause of action accruing subsequent to the desertion. Hester v. Hester, 88 Tenn. 270, 12 S.W. 446, 1889 Tenn. LEXIS 46 (1889); Smith v. Smith, 98 Tenn. 101, 38 S.W. 439, 1896 Tenn. LEXIS 207, 60 Am. St. Rep. 838 (Tenn. Dec. 1896).

2. Effect of Statute.

The statute operated to restore the wife to the rights of a femme sole. Cocke v. Garrett, 66 Tenn. 360, 1874 Tenn. LEXIS 144 (1874); Chavin v. Mayor of Nashville, 1 Tenn. Civ. App. (1 Higgins) 317 (1910).

The statute giving married women, who have been deserted by their husbands, the right to sue, did not make a municipal corporation liable for the tort of its police officers in making an arrest. Chavin v. Mayor of Nashville, 1 Tenn. Civ. App. (1 Higgins) 317 (1910).

3. Abandonment.

Where the husband is dissipated, lives apart, and contributes nothing to the wife's support which comes from a business in which she engages, there is an abandonment. Yeatman, Shields & Co. v. Bellmain, 74 Tenn. 488, 1880 Tenn. LEXIS 278 (1880).

The fact of abandonment is not confined to the time of actual separation. Hester v. Hester, 88 Tenn. 270, 12 S.W. 446, 1889 Tenn. LEXIS 46 (1889).

4. Wife as Prosecutrix Against Husband.

Under this section, a deserted wife may be prosecutrix on an indictment against her husband for nonsupport. Moye v. State, 139 Tenn. 680, 202 S.W. 919, 1917 Tenn. LEXIS 137 (1917).

A wife living apart from her husband may be prosecutrix of her husband for his criminal libel of herself. State v. Kirby, 167 Tenn. 307, 69 S.W.2d 886, 1934 Tenn. LEXIS 1 (1934).

5. Separate Estate of Wife — Liability.

The wife's separate estate is liable for debts incurred in a business conducted by her after abandonment. Yeatman, Shields & Co. v. Bellmain, 74 Tenn. 488, 1880 Tenn. LEXIS 278 (1880); Sam Levy & Co. v. Davis, 125 Tenn. 342, 142 S.W. 1118, 1911 Tenn. LEXIS 31 (1911).

Where married woman was sued for tort under the provisions of this section and judgment obtained against her, her separate estate held by her under a deed which provided she could sell and dispose of same as a femme sole was subject to execution at law for satisfaction of the judgment. Nardi v. Monteverde, 2 Tenn. Civ. App. (2 Higgins) 288 (1912).

6. Disposal of Property Held as Tenants by Entirety.

Where husband, without consent of the wife, disposed of property owned by them as tenants by the entirety and then absconded, the wife could maintain an action under this section to recover the interest wrongfully withheld from her. Moore v. Chase, 25 Tenn. App. 239, 156 S.W.2d 84, 1941 Tenn. App. LEXIS 100 (Tenn. Ct. App. 1941).

7. Costs — Adjudging against Wife.

A judgment may be rendered against the wife for costs. State v. Travis, 1 Shan. 593 (1876).

Costs of a frivolous or malicious indictment may be taxed against married woman, particularly when living apart. State v. Kirby, 167 Tenn. 307, 69 S.W.2d 886, 1934 Tenn. LEXIS 1 (1934).

8. Interspousal Tort Immunity Abolished.

Interspousal tort immunity is totally abolished in this state and all decisions to the contrary are overruled. Davis v. Davis, 657 S.W.2d 753, 1983 Tenn. LEXIS 723 (Tenn. 1983).

Collateral References. 41 Am. Jur. 2d Husband and Wife § 538.

41 C.J.S. Husband and Wife § 422.

20-1-105. Expenses and loss of service incident to injury to child.

  1. The father and mother of a minor child have equal rights to maintain an action for the expenses and the actual loss of service resulting from an injury to a minor child in the parents' service or living in the family except that where one (1) parent is dead or has deserted the family, the other parent shall have the sole right to maintain the action.
  2. In case the father and mother of the minor child are living apart and one (1) parent has exclusive legal custody of the child, the parent with legal custody has the sole right to maintain an action for the expenses and the actual loss of service resulting from an injury to the minor child, except that the noncustodial parent in such case shall have a right to maintain or join an action brought under this section, for the expenses resulting from an injury to the minor child to the extent the noncustodial parent has paid those expenses.

Code 1958, § 2803; Shan., § 4503; Code 1932, § 8630; T.C.A. (orig. ed.), § 20-105; Acts 1982, ch. 853, § 5.

Textbooks. Tennessee Jurisprudence, 18 Tenn. Juris., Minors, § 12; 20 Tenn. Juris., Parent and Child, §§ 8, 10.

Law Reviews.

Day on Torts: Can a Minor Sue for Pre-majority Medical Expenses? (John A. Day), 43 Tenn B.J. 29 (2007).

Parent's Cause of Action in Tennessee for Injured Child's Lost Earnings and Services, Expenses, and Lost Society: A Comparative Analysis (Steven W. Feldman), 51 Tenn. L. Rev. 83 (1983).

Torts — Taylor v. Beard: The Tennessee Supreme Court Declines Adoption of a Cause of Action for Loss of Parental Consortium in Personal Injury Cases, 34 U. Mem. L. Rev. 737 (2004).

Cited: Rhea v. Iseley, 1 Shan. 220 (1871); Churchill v. Churchill, 203 Tenn. 406, 313 S.W.2d 436, 1958 Tenn. LEXIS 318 (1958); Still v. Baptist Hospital, Inc., 755 S.W.2d 807, 1988 Tenn. App. LEXIS 315 (Tenn. Ct. App. 1988).

NOTES TO DECISIONS

1. Injuries Covered.

The injury to a minor child, for which the parent may sue under this section, must be construed to mean or refer to an injury to the person of the child. Blackwell v. Memphis S. R. Co., 124 Tenn. 516, 137 S.W. 486, 1911 Tenn. LEXIS 60 (1911).

2. Emancipation.

A minor, who has not left the father's home, but has remained as a member of the family, and, out of his wages which his father has permitted him to earn and receive, has contributed to the family expenses through voluntary gifts to his mother, but has not paid for meals or lodging as a boarder, and has never been formally set free by his father, is not completely emancipated, so as to bar a suit by the father for loss of his services caused by injury. Memphis Steel Const. Co. v. Lister, 138 Tenn. 307, 197 S.W. 902, 1917 Tenn. LEXIS 35, L.R.A. (n.s.) 1918B406 (1917).

Where the emancipation of a minor is complete, the father's right to maintain an action for loss of services due to injuries is cut off, the act affecting the entire unspent period of minority and being one that is not revocable at the father's instance. Memphis Steel Const. Co. v. Lister, 138 Tenn. 307, 197 S.W. 902, 1917 Tenn. LEXIS 35, L.R.A. (n.s.) 1918B406 (1917).

A minor, who was living away from home and working when injured, but who, after her injuries, returned to her home where she remained until able to return to work, was a member of the father's family. Baskin & Cole v. Whitson, 8 Tenn. App. 578, — S.W.2d —, 1928 Tenn. App. LEXIS 181 (Tenn. Ct. App. 1928).

3. —Partial Emancipation.

A father can recover for the loss of his minor child's services, although such child has been partially emancipated. Memphis Steel Const. Co. v. Lister, 138 Tenn. 307, 197 S.W. 902, 1917 Tenn. LEXIS 35, L.R.A. (n.s.) 1918B406 (1917).

The partial emancipation of an infant is revocable by the father. Memphis Steel Const. Co. v. Lister, 138 Tenn. 307, 197 S.W. 902, 1917 Tenn. LEXIS 35, L.R.A. (n.s.) 1918B406 (1917).

4. —Burden of Proof.

In an action by the parent for loss of services of his minor child caused by injury, the burden of proof to establish a complete emancipation is upon the defendant. Memphis Steel Const. Co. v. Lister, 138 Tenn. 307, 197 S.W. 902, 1917 Tenn. LEXIS 35, L.R.A. (n.s.) 1918B406 (1917).

5. Married Infants.

A mother of a married infant son has no right to bring action to recover damages for his wrongful death, since the right to bring such action is in the widow of decedent as his representative, where decedent was not at the time of the fatal accident and death a member of his mother's family. McWhorter v. Gibson, 19 Tenn. App. 152, 84 S.W.2d 108, 1935 Tenn. App. LEXIS 27 (Tenn. Ct. App. 1935).

Where an accident occurred in Alabama, resulting in the death of a 19 year old husband, it was presumed in absence of a showing to the contrary that the Alabama law was the same as Tennessee law and decedent's mother is not entitled to sue, in Tennessee, for damages for the death of her such infant married son in Tennessee, but decedent's wife has the right to sue to recover damages for his death. McWhorter v. Gibson, 19 Tenn. App. 152, 84 S.W.2d 108, 1935 Tenn. App. LEXIS 27 (Tenn. Ct. App. 1935).

6. Recovery by Child.

The right of a parent to maintain suit is not affected by a previous recovery by the child for the injuries sustained. Blackwell v. Memphis S. R. Co., 124 Tenn. 516, 137 S.W. 486, 1911 Tenn. LEXIS 60 (1911).

Where a child's father is civilly dead and the child's mother died before the accident in question, the child is entitled to sue and recover for necessary expenses required in treatment of personal injuries resulting from the accident in question. Wolfe v. Vaughn, 177 Tenn. 678, 152 S.W.2d 631, 1940 Tenn. LEXIS 67 (1941).

7. Damages.

Upon a proper construction of this section, the recovery of either parent entitled to sue for an injury to a minor child is limited to the expenses and the actual loss of services resulting from an injury to the minor child, not resulting in his death. Tennessee Cent. R.R. v. Doak, 115 Tenn. 720, 92 S.W. 853, 1905 Tenn. LEXIS 101 (1905).

The mother's suit as administratrix of her deceased minor son to recover damages for his wrongful death is a suit in the right of the deceased himself, and, in such suit, an amendment seeking to recover damages for the loss of the services of the deceased during his minority is wholly unauthorized. St. Louis, I. M. & S. R. Co. v. Leazer, 119 Tenn. 1, 107 S.W. 684, 1907 Tenn. LEXIS 1 (1908).

Though the parent may not be able to show by exact calculation the amount of damages resulting from the loss of services of the minor child, the suit of the parent may be maintained, and a recovery, if not excessive, will be allowed to stand. Blackwell v. Memphis S. R. Co., 124 Tenn. 516, 137 S.W. 486, 1911 Tenn. LEXIS 60 (1911).

Trial court erred by denying the minor's motion to amend the complaint under Tenn. R. Civ. P. 15.01 only to the extent that he could be permitted to assert pre-majority medical expenses that were paid by him or that he was legally obligated to pay. Blackwell ex rel. Blackwell v. Sky High Sports Nashville Operations, LLC, 523 S.W.3d 624, 2017 Tenn. App. LEXIS 6 (Tenn. Ct. App. Jan. 9, 2017), appeal denied, Blackwell v. Sky High Sports Nashville Operations, LLC, — S.W.3d —, 2017 Tenn. LEXIS 305 (Tenn. May 18, 2017).

8. Prior Judgment.

Where the mother has exclusive custody and is entitled to the services of the child injured in an automobile accident, a prior judgment against the father for damages arising out of the same accident does not affect the cause of action of the mother for loss of services and expenses. Boring v. Miller, 215 Tenn. 394, 386 S.W.2d 521, 1965 Tenn. LEXIS 627 (1965).

9. Parties.

Father could maintain suit under this section for expenses incurred in payment of medical expenses resulting from injury of minor son in automobile accident and was not required to join mother as party plaintiff under the provisions of § 34-101 (now § 34-1-101 (repealed)). Whitley v. Hix, 207 Tenn. 683, 343 S.W.2d 851, 1961 Tenn. LEXIS 386 (1961).

10. Noncustodial Parents.

The trial court properly awarded damages to noncustodial parent representing medical expenses he testified he incurred on behalf of the minor plaintiff as a result of an accident. Bowers v. City of Chattanooga, 855 S.W.2d 583, 1992 Tenn. App. LEXIS 1049 (Tenn. Ct. App. 1992).

Trial court properly granted summary judgment in favor of an operator and sponsor of a club for boys and girls (the defendants) for lack of standing because a father was statutorily barred from bringing any claim to recover medical expenses or loss of his child's service resulting from an injury where he was not a primary residential parent and the father failed to present evidence or assert that he had paid or was responsible for the child's medical expenses. Neale v. United Way of Greater Kingsport, — S.W.3d —, 2015 Tenn. App. LEXIS 607 (Tenn. Ct. App. July 28, 2015).

Father's motion to demand compulsory joinder of the mother was relevant only insofar as he was barred from bringing a claim on his own behalf (as a non-custodial parent) for expenses and loss of their child's service. Neale v. United Way of Greater Kingsport, — S.W.3d —, 2015 Tenn. App. LEXIS 607 (Tenn. Ct. App. July 28, 2015).

Collateral References. 59 Am. Jur. 2d Parent and Child §§ 112, 129.

67A C.J.S. Parent and Child §§ 137-140, 147; 67A C.J.S. Parties §§ 13-15, 58-60.

Action for death of unborn child. 84 A.L.R.3d 411.

Act or omission which would not support an action for damages by person injured as ground of action by parent for consequential damages. 94 A.L.R. 1211.

Appearance of parent as next friend, guardian, or guardian ad litem in an action to recover for injury to child, or verdict or judgment in such action, as affecting right of parent to recover for consequential damages to himself on account of injury to child. 116 A.L.R. 1087.

Award of custody of child to another as affecting right of parent to recover for injury to minor child. 147 A.L.R. 482.

Funeral expenses, parent's right of recovery at common law from tortfeasor causing child's death. 3 A.L.R.2d 932.

Parent's right of action for prenatal injury of child. 40 A.L.R.3d 1222.

Recovery by tenant of damages for injury to child as result of wrongful eviction. 17 A.L.R.2d 936.

Right of parent who consents to, or acquiesces in, employment of child under statutory age to recover for latter's injury or death in such employment. 23 A.L.R. 635.

20-1-106. [Repealed.]

Compiler's Notes. Former § 20-1-106 (Code 1858, §§ 2801, 2802; Shan. §§ 4501, 4502; Code 1932, §§ 8628, 8629; T.C.A. (orig. ed.), § 20-107), concerning actions for seduction, was repealed by Acts 1990, ch. 1056, § 3, effective January 1, 1991.

Acts 1990, ch. 1056, § 4 provided that any action filed prior to January 1, 1991, may be maintained under the law in effect on the date of such filing.

20-1-107. Several liability on joint obligations.

All joint obligations and promises are made joint and several, and the debt or obligation shall survive against the heirs and personal representatives of deceased obligors as well as against the survivors, and suits may be brought and prosecuted on the obligations and promises against all or any part of the original obligors, and all or any part of the representatives of deceased obligors, as if such obligations and assumptions were joint and several.

Code 1858, § 2789 (deriv. Acts 1789, ch. 57, § 5); Shan., § 4486; Code 1932, § 8613; T.C.A. (orig. ed.), § 20-108.

Cross-References. Joinder of persons needed for just adjudication, Tenn. R. Civ. P. 19.

Permissive joinder of parties, Tenn. R. Civ. P. 20.

Service on joint obligor, § 20-2-109.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 738.

Tennessee Jurisprudence, 5 Tenn. Juris., Bonds, § 15; 12 Tenn. Juris., Executors and Administrators, § 92; 20 Tenn. Juris., Parties, § 6; 20 Tenn. Juris., Partnership, § 52; 22 Tenn. Juris., Rescission, Cancellation and Reformation, § 36.

Law Reviews.

Permissible Joinder, Counterdeclarations and Crossbills: The Tennessee Procedure (Larry S. Banks), 37 Tenn. L. Rev. 401.

NOTES TO DECISIONS

1. Nature and Effect of Statute.

The statute altered the common law rule so that an obligee may now sue the surviving obligors without the necessity of joining the representatives of a deceased obligor in the action, and if one of the defendants die pending the suit his death may be suggested and the caused proceeded with against the survivors. Claiborne v. Goodloe, 3 Tenn. 391, 1 Cooke, 1813 Tenn. LEXIS 43 (1813).

All joint obligations and promises are made joint and several, and a note joint in its terms is a joint and several obligation, and separate and several suits can be maintained against the makers thereof. Judgment may be rendered against a surety alone. Trustees of McMinn Academy Trustees v. Reneau, 32 Tenn. 94, 1852 Tenn. LEXIS 25 (1852); Hawkins v. Humble, 45 Tenn. 531, 1868 Tenn. LEXIS 43 (1868).

Although the statute makes obligations joint and several so that all parties liable in such obligations are not now in many cases necessary parties, yet they are none the less proper parties. Craig v. McKnight, 108 Tenn. 690, 69 S.W. 322, 1902 Tenn. LEXIS 16 (1902).

Estate was the plaintiff, not the beneficiary, and decedent had no obligation under the promissory note, and when her real estate which was pledged as security for the promissory note was sold with the proceeds applied to the note obligation, the estate became entitled to complete indemnity against each and every one of the obligors on the note; debtors, as makers of the note obligation, were jointly and severally liable. Estate of Hindmon v. Jones, — S.W.3d —, 2008 Tenn. App. LEXIS 369 (Tenn. Ct. App. June 27, 2008).

2. Declaration.

A declaration against the defendants summoned, without noticing those not summoned, is an informal dismissal as to them, and not a discontinuance as to those summoned and declared against. Pollard v. Huston, 75 Tenn. 689, 1881 Tenn. LEXIS 171 (1881).

3. Nature of Obligation in Particular Instances.

4. —Bonds.

The common obligors on several different bonds may all be sued in one action, though there are others on the different bonds and not on all the bonds, who are not sued, for the bonds sued on are to be regarded as the bonds of the defendants alone. Trustees of McMinn Academy Trustees v. Reneau, 32 Tenn. 94, 1852 Tenn. LEXIS 25 (1852).

A bond of indemnity to secure the obligees “against all claims or suits at law, or both,” is a joint and several obligation, and protects the obligees against suits and judgments for mechanic's lien on the property embraced in the contemplation of the bond. Wilson v. Davidson, 3 Cooper's Tenn. Ch. 536 (1877).

5. —Notes.

6. — —Notice of Nonpayment to One Joint Indorser.

One of two joint indorsers of a note was bound by notice of nonpayment given to himself alone. Jarnigen v. Stratton, 95 Tenn. 619, 32 S.W. 625, 1895 Tenn. LEXIS 137, 30 L.R.A. 495 (1895).

7. — —Unauthorized Compromise by One Joint Maker.

Where a note was executed by two joint makers, and the consideration failed so that there could be no recovery on the note, after which one of the makers compromised the matter with the payee by the entry of a credit on the note, there could be no recovery against the other maker for the balance, where he was not a party to such compromise agreement, which was made without his knowledge or consent. Hawkins v. Humble, 45 Tenn. 531, 1868 Tenn. LEXIS 43 (1868).

8. — —Simultaneous Suits against Resident and Nonresident Comakers in Different Courts.

A resident, as one of the makers of a note, could be sued by summons in one court, and a nonresident, as a comaker of the same note, at the same time, be proceeded against by attachment and publication in another court; and the attachment was not abatable, though the suit by service of process was still pending. Sims v. McNeil, 29 Tenn. 500, 1850 Tenn. LEXIS 22 (1850).

9. —Partnership Obligations.

Partnership debts are several as well as joint, and each member of the firm is individually liable therefor, especially in view of this section. House v. Thompson, 40 Tenn. 512, 1859 Tenn. LEXIS 147 (1859).

A joint suit against partners could be dismissed as to some and prosecuted to judgment against the others. Link v. Allen, 48 Tenn. 318, 1870 Tenn. LEXIS 56 (1870).

The liability of partners in joint obligations is both joint and several. Doggrell v. Great Southern Box Co., 206 F.2d 671, 1953 U.S. App. LEXIS 2794 (6th Cir. Tenn. 1953), vacated, Doggrell v. Southern Box Co., 208 F.2d 310, 1953 U.S. App. LEXIS 3054 (6th Cir. 1953).

10. —Personal Representative — Suit Against.

Obligee may sue representative of deceased obligor with other obligors or separately. Claiborne v. Goodloe, 3 Tenn. 391, 1 Cooke, 1813 Tenn. LEXIS 43 (1813); Saunders v. Wilder, 39 Tenn. 577, 1859 Tenn. LEXIS 281 (Tenn. Apr. 1859).

Heir at law was bound by a judgment against the executor of a deceased partner and the surviving partner, upon a bill filed to subject the partnership land to the satisfaction of the judgment. Logan v. Greenlaw, 25 F. 299, 1885 U.S. App. LEXIS 1769 (C.C.D. Tenn. 1885).

11. —Sureties.

Where the obligation was joint and several, the liability of the surety did not depend upon the rendition of a judgment against the principal. Martin Furniture Co. v. Massey, 135 Tenn. 338, 186 S.W. 451, 1916 Tenn. LEXIS 30 (1916).

12. — —Part of Sureties Not Sued.

In a bill against a former county trustee and a part of his sureties on his official bond, the defendant sureties cannot complain that certain of their cosureties, although mentioned in the bill, were not made defendants. State ex rel. Stewart v. Follis, 140 Tenn. 513, 205 S.W. 444, 1917 Tenn. LEXIS 157 (1918).

13. — —Dismissal as to One Surety.

In an action against the sheriff and his sureties on his official bond, the dismissal of the suit by the plaintiff as to one of the sureties will not affect his right to proceed against the other sureties. Garrison v. Hollins, Burton & Co., 70 Tenn. 684, 1879 Tenn. LEXIS 222 (1879).

14. —Warranty of Ancestor — Liability of Heirs.

Heirs are but representatives of ancestor and they are jointly liable on his covenant of warranty. House v. Mitchell, 19 Tenn. 138, 1838 Tenn. LEXIS 35 (1838).

15. —Stockholders.

Suit by business brokers against all stockholders of corporation to recover commissions allegedly due on sale of all capital stock of the corporation was based on separate asserted rights against each stockholder for separate commissions and amounted to misjoinder of parties and actions and would abate as to stockholders served by counterpart summons after suit was commenced in county where a single stockholder resided. Rooney v. Callins, 62 Tenn. App. 105, 459 S.W.2d 430, 1970 Tenn. App. LEXIS 255 (Tenn. Ct. App. 1970).

16. Judgment.

An action commenced against two defendants, with a declaration against both, cannot be prosecuted to judgment against one, without any disposition of the case as to the other, and such judgment may be arrested. Greer v. Miller, 2 Tenn. 187, 1812 Tenn. LEXIS 8 (1812).

A judgment against one obligor is not a merger of the contract which precludes a subsequent suit brought against the others. Lowry v. Hardwick, 23 Tenn. 188, 1843 Tenn. LEXIS 47 (1843).

A judgment against one obligor or partner is not a bar in a suit against the other or others. Lowry v. Hardwick, 23 Tenn. 188, 1843 Tenn. LEXIS 47 (1843); Nichols v. Cheairs, 36 Tenn. 229, 1856 Tenn. LEXIS 87 (1856); Sully v. Campbell, 99 Tenn. 434, 42 S.W. 15, 1897 Tenn. LEXIS 49, 43 L.R.A. 161 (1897).

The defendants against whom the judgment is valid cannot complain because the judgment is erroneous as to one or more of their codefendants. Bently v. Hurxthal, 40 Tenn. 378, 1859 Tenn. LEXIS 105 (1859); Webbs v. State, 44 Tenn. 199, 1867 Tenn. LEXIS 32 (1867); Ouly v. Dickinson & Fegan, 45 Tenn. 486, 1868 Tenn. LEXIS 36 (1868); Nashville St. Ry. v. Gore, 106 Tenn. 390, 61 S.W. 777, 1900 Tenn. LEXIS 173 (1900).

17. Process.

The privilege of issuing a counterpart summons under § 20-2-108 to a county other than the county of suit must be based upon a proper joinder of defendants who are (1) jointly liable, or (2) severally liable on the same instrument or judgment, and may not be based upon a misjoinder of parties. Rooney v. Callins, 62 Tenn. App. 105, 459 S.W.2d 430, 1970 Tenn. App. LEXIS 255 (Tenn. Ct. App. 1970).

Collateral References. 17 Am. Jur. 2d Contracts §§ 298-301; 59 Am. Jur. 2d Parties §§ 107, 112, 119-122.

17A C.J.S. Contracts §§ 352, 353.

Oral agreement between joint obligors as to extent of liability inter se. 65 A.L.R. 822.

Pledge to secure joint obligation and other debts or liabilities to pledgee, debts covered by. 87 A.L.R. 618.

Soldiers' and Sailors' Civil Relief Act. 147 A.L.R. 1368, 148 A.L.R. 1395, 149 A.L.R. 1463, 150 A.L.R. 1428, 151 A.L.R. 1460, 152 A.L.R. 1457, 153 A.L.R. 1429, 154 A.L.R. 1455, 155 A.L.R. 1456, 156 A.L.R. 1455, 157 A.L.R. 1454, 158 A.L.R. 1456, 35 A.L.R. Fed. 649.

20-1-108. Joinder of defendants on joint and several obligations.

Persons jointly or severally, or jointly and severally, bound on the same instrument, or by judgment, decree or statute, including the makers and endorsers of negotiable paper and sureties, may all or any part of them be sued in the same action.

Code 1858, § 2787 (deriv. Acts 1789, ch. 57, § 5; 1813, ch. 66, § 1; 1820, ch. 25, § 1; 1829, ch. 66, § 1; 1837-1838, ch. 5, § 1); Shan., § 4484; Code 1932, § 8611; T.C.A. (orig. ed.), § 20-109.

Cross-References. Joinder of persons needed for just adjudication, Tenn. R. Civ. P. 19.

Permissive joinder of parties, Tenn. R. Civ. P. 20.

Textbooks. Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, §§ 6, 12; 20 Tenn. Juris., Parties, §§ 4, 7.

Law Reviews.

Permissible Joinder, Counterdeclarations and Crossbills: The Tennessee Procedure (Larry S. Banks), 37 Tenn. L. Rev. 401.

Cited: National Surety Corp. v. Buckles, 31 Tenn. App. 610, 219 S.W.2d 207, 1948 Tenn. App. LEXIS 117 (Tenn. Ct. App. 1948); Day v. North American Rayon Corp., 140 F. Supp. 490, 1956 U.S. Dist. LEXIS 3496 (D. Tenn. 1956); Travelers Ins. Co. v. Fidelity & Casualty Co., 219 Tenn. 244, 409 S.W.2d 175, 1966 Tenn. LEXIS 522 (1966).

NOTES TO DECISIONS

1. Nature of Statute.

This section relates alone to procedure. Jarnigen v. Stratton, 95 Tenn. 619, 32 S.W. 625, 1895 Tenn. LEXIS 137, 30 L.R.A. 495 (1895).

2. Joint Obligation — Effect of Misconstruction.

The legal effect of a joint promise, by the makers of a note, in clear and unambiguous terms, to pay, in solido, the full amount of the note, could not be modified by a mistaken belief of the holders and makers that each maker is liable only for a proportional part of the full amount. Sully v. Campbell, 99 Tenn. 434, 42 S.W. 15, 1897 Tenn. LEXIS 49, 43 L.R.A. 161 (1897).

3. Joint Obligors — Suit and Judgment Against Part.

Suit and judgment against part of the joint obligors or partners is no merger of the obligation, and is no bar to a suit subsequently brought against the remaining obligors or partners, where there has been no satisfaction. Lowry v. Hardwick, 23 Tenn. 188, 1843 Tenn. LEXIS 47 (1843); Link v. Allen, 48 Tenn. 318, 1870 Tenn. LEXIS 56 (1870); Sully v. Campbell, 99 Tenn. 434, 42 S.W. 15, 1897 Tenn. LEXIS 49, 43 L.R.A. 161 (1897).

A suit against partners may be dismissed as to some and prosecuted against the others. Link v. Allen, 48 Tenn. 318, 1870 Tenn. LEXIS 56 (1870); Sully v. Campbell, 99 Tenn. 434, 42 S.W. 15, 1897 Tenn. LEXIS 49, 43 L.R.A. 161 (1897).

4. Notes — Misjoinder of Defendants.

The maker and endorser of a promissory note cannot be sued with a guarantor whose guarantee was on a separate paper, and who was not a party to the note. This rule is based upon the fact that there was no joint liability created by the guaranty, and the suit was a palpable misjoinder of parties. Eakin & Co. v. Burger, 33 Tenn. 417, 1853 Tenn. LEXIS 66 (1853).

5. Partnerships.

If one of two partners brings a suit upon a partnership demand, the defendant may take advantage of it at the trial, under the general issue. Coffee v. Eastland, 3 Tenn. 158, 1 Cooke, 1812 Tenn. LEXIS 44 (1812).

Payee of note executed by partnership could sue individual member without naming other members. Hyman Gratz & Co. v. Stump, 3 Tenn. 493, 1 Cooke, 1814 Tenn. LEXIS 42 (1814).

If one sued on a partnership demand failed to disclose the names of the other partners by a plea in abatement, judgment might be had against him alone as if the demand were single. Coffee v. Eastland, 3 Tenn. 158, 1 Cooke, 1812 Tenn. LEXIS 44 (1812); Southern Ry. v. McNabb, 130 Tenn. 197, 169 S.W. 757, 1914 Tenn. LEXIS 16, 1915B L.R.A. (n.s.) 761 (1914).

In an action upon a partnership's contract all partners at the time it was made should be joined as plaintiffs, even after dissolution. Nashville, C. & S. L. Ry. v. Davis, 21 Tenn. App. 663, 114 S.W.2d 830, 1937 Tenn. App. LEXIS 67 (Tenn. Ct. App. 1937).

A dormant partner may or may not be joined in suit by partnership and a failure to join him as plaintiff is no ground for abatement, nonsuit or writ of error, such partners being proper but not necessary parties plaintiff. Nashville, C. & S. L. Ry. v. Davis, 21 Tenn. App. 663, 114 S.W.2d 830, 1937 Tenn. App. LEXIS 67 (Tenn. Ct. App. 1937).

Where a contract is made in the name of one partner but for the benefit of all, all should join in a suit thereon. Nashville, C. & S. L. Ry. v. Davis, 21 Tenn. App. 663, 114 S.W.2d 830, 1937 Tenn. App. LEXIS 67 (Tenn. Ct. App. 1937).

When the partnership occupies, substantially, the position of an undisclosed principal, the action may be by that partner in whose name the contract was made alone, or by all. Nashville, C. & S. L. Ry. v. Davis, 21 Tenn. App. 663, 114 S.W.2d 830, 1937 Tenn. App. LEXIS 67 (Tenn. Ct. App. 1937).

Where a contract is made with one partner in his individual capacity, he must sue alone, although he may, in fact, have been acting for the benefit of his firm. Nashville, C. & S. L. Ry. v. Davis, 21 Tenn. App. 663, 114 S.W.2d 830, 1937 Tenn. App. LEXIS 67 (Tenn. Ct. App. 1937).

In an action on a contract of carriage one who had bought several cows in the shipment under an agreement to show profits equally, was a dormant partner, as the contract was in the name of the other and active partner, and he need not be joined as party plaintiff. Nashville, C. & S. L. Ry. v. Davis, 21 Tenn. App. 663, 114 S.W.2d 830, 1937 Tenn. App. LEXIS 67 (Tenn. Ct. App. 1937).

6. —Individual and Partnership Creditors — Rights Unaffected.

The statute did not alter or change general rule that individual creditors were entitled to priority from the individual effects of the debtors, and the partnership creditors from the effects of the firm of which he is a member. Jackson Ins. Co. v. Partee, 56 Tenn. 296, 1872 Tenn. LEXIS 144 (1872).

7. —Setting Off Partnership Debt Against Debt to Partner.

This statute did not affect the rule that a partnership debt could not be set off at law against a debt due to a plaintiff who was a member of the partnership. Flint v. Tillman, 49 Tenn. 202, 1870 Tenn. LEXIS 212 (1870).

8. —Surviving Partner as Personal Representative of Deceased Partner.

Suit against one as surviving partner and as the personal representative of deceased partner could be maintained. Trundle v. Edwards & Harris, 36 Tenn. 572, 1857 Tenn. LEXIS 58 (1857).

9. Principal and Sureties — Suits as to.

Separate or several judgments nisi may be taken and prosecuted to final judgments against the principal and sureties upon a joint and several recognizance, entered into by a prisoner and his sureties for his appearance at a designated time. Brewer v. State, 74 Tenn. 198, 1880 Tenn. LEXIS 232 (1880).

It was proper for complainant to bring his suit against the surety alone, without joining the principal, or against any one or more of the parties bound either as principal or sureties. Brannon v. Wright, 113 Tenn. 692, 84 S.W. 612, 1904 Tenn. LEXIS 59 (1904).

A recognizance, with sureties, for the appearance of a defendant in a felony case, is a joint and several obligation, and a writ of scire facias thereon may issue against the sureties alone, without the principal, and is not, for that reason, subject to a motion to quash the writ. State v. Frankgos, 114 Tenn. 76, 85 S.W. 79, 1904 Tenn. LEXIS 72 (1904).

10. —Joinder of Personal Representative of Deceased Surety.

A judgment by motion against a constable and his sureties, upon notice against the constable alone, and a judgment against the personal representative of a surety dying after the motion against the constable and his sureties, is valid without scire facias to revive the motion against such personal representative. Hopson v. Hoge & Lester, 16 Tenn. 153, 1835 Tenn. LEXIS 63 (1835).

11. —Sureties of Deceased Guardian.

A bill for an account and settlement may be maintained against a surety of a deceased guardian, without making his personal representative a party, especially where the insolvency of the deceased guardian's estate is alleged and shown, though it be without administration. Parker's Heirs v. Irby, 68 Tenn. 221, 1877 Tenn. LEXIS 23 (1877).

12. —Sureties of Deceased Purchaser at Court Sale.

The clerk selling land under decree of court may, without notice, obtain judgment by motion against the sureties on the purchase money notes, without including in the judgment the personal representatives of the deceased purchaser, for all actions are joint and several. Whiteside v. Latham, 42 Tenn. 91, 1865 Tenn. LEXIS 23 (1865).

13. Joinder under Workers' Compensation Law.

Under the provisions of this section and § 50-915 (now § 50-6-113) as construed together, an injured employee of a subcontractor could join his immediate employer and the principal contractor in the same suit under the Workers' Compensation Law. P. H. Reynolds & Co. v. McKnight, 177 Tenn. 228, 148 S.W.2d 357, 1940 Tenn. LEXIS 31 (1941).

14. Process.

The privilege of issuing a counterpart summons under § 20-2-108 to a county other than the county of suit must be based upon a proper joinder of defendants who are: (1) jointly liable, or (2) severally liable on the same instrument or judgment, and may not be based upon a misjoinder of parties. Rooney v. Callins, 62 Tenn. App. 105, 459 S.W.2d 430, 1970 Tenn. App. LEXIS 255 (Tenn. Ct. App. 1970).

15. Stockholders.

Suit by business brokers against all stockholders of corporation to recover commissions allegedly due on sale of all capital stock of the corporation was based on separate asserted rights against each stockholder for separate commissions and amounted to misjoinder of parties and actions, and would abate as to stockholders served by counterpart summons after suit was commenced in county where a single stockholder resided. Rooney v. Callins, 62 Tenn. App. 105, 459 S.W.2d 430, 1970 Tenn. App. LEXIS 255 (Tenn. Ct. App. 1970).

Collateral References. 17 Am. Jur. 2d Contracts §§ 298-301; 59 Am. Jur. 2d Parties §§ 112, 122.

67A C.J.S. Parties §§ 43-45, 50.

Right of employer sued for tort of employee to implead the latter. 5 A.L.R.3d 871.

Vacation of judgment as to one or more multiple parties against whom rendered as requiring vacation as to all. 42 A.L.R.2d 1030.

Parties 24-35.

20-1-109. Action in name used in instrument.

Suit may be brought by or against any of the parties to a written instrument on which the action is founded, by the name and description used in the instrument.

Code 1858, § 2788; Shan., § 4485; Code 1932, § 8612; T.C.A. (orig. ed.), § 20-110.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 116.

Cited: Martin Furniture Co. v. Massey, 135 Tenn. 338, 186 S.W. 451, 1916 Tenn. LEXIS 30 (1916).

NOTES TO DECISIONS

1. Trade-Name.

Question reserved whether a person or partnership can maintain suit in a trade-name. Smith v. Modern Bakery, 165 Tenn. 508, 56 S.W.2d 163, 1932 Tenn. LEXIS 77 (1933).

2. Note Payable to “Legal Representative of Succession of.”

The administrator with the will annexed may sue and recover upon a note made payable “to the order of the legal representatives of the succession of” the testator named. Lewis v. Woodfolk, 61 Tenn. 25, 1872 Tenn. LEXIS 337 (1872).

Collateral References. 17 Am. Jur. 2d Contracts § 295.

17A C.J.S. Contracts § 518.

20-1-110. Failure of recovery against joint defendants.

In all actions on contracts, a dismissal of suit as to one (1) or more of those jointly sued, or failure to recover as to one (1), shall not prevent a recovery against those defendants who may be liable.

Code 1858, § 2790 (deriv. Acts 1820, ch. 25, § 2); Shan., § 4487; Code 1932, § 8614; T.C.A (orig. ed.), § 20-111.

Cross-References. Dismissal against part of defendants, title 20, ch. 9, part 4.

Textbooks. Tennessee Jurisprudence, 5 Tenn. Juris., Carriers, § 45.

Cited: Powers-Taylor Drug Co. v. Wafford, 53 S.W. 243, 1899 Tenn. Ch. App. LEXIS 70 (1899).

NOTES TO DECISIONS

1. Application.

This provision does not apply where there is no privity between the parties or no joint contract or liability. Eakin & Co. v. Burger, 33 Tenn. 417, 1853 Tenn. LEXIS 66 (1853).

2. Joint Action — Recovery against One.

In an action on a contract against two defendants as common carriers, in which the declaration alleged that they jointly contracted with the plaintiff, the recovery may be against one of them. Darwin v. Cox, 13 Tenn. 257, 1833 Tenn. LEXIS 156 (1833).

In an action against two defendants jointly in tort, for the deceitful warranty of the soundness of a horse, the recovery could be against one of them, and so, also, under this statute, if the action had been on the contract of warranty. Carpenter v. Lee, 13 Tenn. 264, 13 Tenn. 265, 1833 Tenn. LEXIS 158 (1833).

3. Dismissal as to One Codefendant.

In an action against the sheriff and his sureties on his official bond, the dismissal of the suit by the plaintiff as to one of the sureties did not affect his right of recovery against the other defendants. Garrison v. Hollins, Burton & Co., 70 Tenn. 684, 1879 Tenn. LEXIS 222 (1879); Pollard v. Huston, 75 Tenn. 689, 1881 Tenn. LEXIS 171 (1881).

4. Suit Against One Obligor After Judgment Against Another.

Judgment, without satisfaction, against one of three joint makers of a note, taken for only one-third of the amount, upon the mistaken belief that he was not liable for more, though effectual to protect such maker from suit for the balance of the note, did not protect his comakers from suit for the full amount of the note. Sully v. Campbell, 99 Tenn. 434, 42 S.W. 15, 1897 Tenn. LEXIS 49, 43 L.R.A. 161 (1897).

5. Principal's Discharge in Bankruptcy — Effect on Surety.

The surety on an injunction bond was not released by the discharge in bankruptcy of the principal, and upon the dissolution of the injunction, the surety was liable on the bond, according to its conditions. Martin Furniture Co. v. Massey, 135 Tenn. 338, 186 S.W. 451, 1916 Tenn. LEXIS 30 (1916).

Collateral References. 1 C.J.S. Actions § 143.

20-1-111. Maintaining action after executor or administrator removes from jurisdiction.

  1. Where one (1) of several executors or administrators removes out of the state, actions may be prosecuted and judgments rendered against such as remain, in the same manner as if all were sued.
  2. If the cause of action is within the jurisdiction of a judge of the court of general sessions, it may be prosecuted against the administrator or executor who remains in the county, where one (1) of them removes out of the state or into another county.

Code 1858, §§ 2791, 2792 (deriv. Acts 1826, ch. 38, § 1; 1827, ch. 84, § 1); Shan., §§ 4488, 4489; Code 1932, §§ 8615, 8616; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 20-112.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 741.

Tennessee Jurisprudence, 12 Tenn. Juris., Executors and Administrators, § 92.

NOTES TO DECISIONS

1. “Removal” — Meaning of Term.

“Removal,” as used here, does not mean temporary absence, but a change of residence. Fickle v. Fickle, 13 Tenn. 203, 1833 Tenn. LEXIS 138 (1833); Bledsoe v. Huddleston, 13 Tenn. 294 (1833).

2. Statute of Limitations.

In an action upon a covenant of warranty of title to land, begun against one of the two executors of the will of one of the deceased covenanters and against the administrator of the other deceased covenanter, both made parties and served with process within the allowed period after the eviction, where the other executor was made a party and served by counterpart summons after the lapse of that time, the plea of the statute of limitations in favor of the estates of decedents is not a good defense to either executor; nor, for a stronger reason, to the administrator of the other covenanter so sued and served with process. Burgie v. Parks, 79 Tenn. 84, 1883 Tenn. LEXIS 18 (1883).

Collateral References. 34 C.J.S. Executors and Administrators § 1046.

Executors and Administrators 441.

20-1-112. Defenses of executors sued separately.

The defendants, so separately sued, shall not be held further liable than if all were sued and may avail themselves of all the defenses allowed where all are sued.

Code 1858, § 2793 (deriv. Acts 1826, ch. 38, § 1; 1827, ch. 84, § 1); Shan., § 4490; Code 1932, § 8617; T.C.A. (orig. ed.), § 20-113.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 741.

Collateral References. 34 C.J.S. Executors and Administrators § 1045.

Executors and Administrators 432, 433.

20-1-113. Separate judgments against executors.

The same proceedings may be taken on judgments rendered in such separate suits, to subject the defendants for waste of assets or to subject real estate descended to heirs, as when all the executors or administrators are sued.

Code 1858, § 2794 (deriv. Acts 1826, ch. 38, § 2); Shan., § 4491; Code 1932, § 8618; T.C.A. (orig. ed.), § 20-114.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 741.

Law Reviews.

Issues Raised by “Jordan” (John A. Day), 35 No.12 Tenn. B.J. 17 (1999).

Collateral References. 34 C.J.S. Executors and Administrators § 793.

20-1-114. Addition of parties.

  1. At any time before trial, new plaintiffs or defendants may be added to the suit by the plaintiff, upon supplemental process taken out and served or appearance entered.
  2. If added at the appearance term, it may be done without costs; if at any subsequent term, on such terms as to costs and conditions as the court may prescribe, so as to prevent delay.

Code 1858, § 2798 (deriv. Acts 1851-1852, ch. 152, § 6); Shan., § 4495; mod. Code 1932, § 8622; T.C.A. (orig. ed.), § 20-115.

Cross-References. Joinder of persons needed for just adjudication, Tenn. R. Civ. P. 19.

Misjoinder and nonjoinder of parties, Tenn. R. Civ. P. 21.

Textbooks. Tennessee Jurisprudence, 20 Tenn. Juris., Parties, § 7; 21 Tenn. Juris., Process, § 4.

Cited: State use of Giles County v. Abernathy, 159 Tenn. 175, 17 S.W.2d 17, 1928 Tenn. LEXIS 73 (1929); Kizer v. Bellar, 192 Tenn. 540, 241 S.W.2d 561, 1951 Tenn. LEXIS 301 (1951); Day v. North American Rayon Corp., 140 F. Supp. 490, 1956 U.S. Dist. LEXIS 3496 (D. Tenn. 1956).

NOTES TO DECISIONS

1. Leave of Court to Add Parties — Necessity.

Leave of court to add parties is necessary and is grantable upon the terms as to costs that may be imposed. Amendment must be made so as to prevent delay. Jones v. Cloud, 44 Tenn. 236, 1867 Tenn. LEXIS 38 (1867).

2. Striking Plaintiff and Inserting Third Person.

A plaintiff, in a suit commenced before a justice (now general sessions judge) and carried to the circuit court, could strike out his own name and insert that of a third person. Phillips v. Wells, 34 Tenn. 154, 1854 Tenn. LEXIS 24 (1854).

3. Plaintiff as Administrator Substituted for Plaintiff in Own Name.

The court may allow an amendment substituting plaintiff as administrator instead of plaintiff in his own name, and process to bring the defendant in after the amendment is not required, and a notification by the court's order, in place of formal process, is sufficient. Studer v. Roberts, 132 Tenn. 599, 179 S.W. 131, 1915 Tenn. LEXIS 51 (1915).

4. Personal Representative as Additional Defendant.

A personal representative, before the expiration of the statutory period after his qualification, or after his suggestion of the insolvency of the estate, could not be made a defendant by amendment, because he is not then liable to suit. Bank of Tennessee v. Skillern & Merriwether, 34 Tenn. 698, 1855 Tenn. LEXIS 121 (1855).

5. Supplemental Process as to New Defendants.

The order of the court granting leave to the plaintiff to make an additional defendant is the commencement of the suit against him, and imposes upon the plaintiff the necessity of obtaining supplemental process to bring him before the court, which he must continue from term to term, with the same regularity that would be required of him in case of an original summons; otherwise, his suit as to such additional defendant will be discontinued. Jones v. Cloud, 44 Tenn. 236, 1867 Tenn. LEXIS 38 (1867).

6. New Defendant — Right to Plead Limitations.

If relief is sought against a new party defendant, or if his interests are in fact involved, he may successfully interpose a plea of limitations, when it is sought to bring him in after the bar of the statute, but where the addition of new parties merely corrects a defect in the original proceeding, the statute of limitations cannot be relied on, but the amendments relate back to the institution of the suit. Niehaus v. C. B. Barker Const. Co., 135 Tenn. 382, 186 S.W. 461, 1916 Tenn. LEXIS 34 (1916); Mellon v. American Flour & Grain Co., 9 Tenn. App. 383, — S.W.2d —, 1929 Tenn. App. LEXIS 101 (Tenn. Ct. App. 1929), superseded by statute as stated in, Duke v. Repogle Enters., 891 S.W.2d 205, 1994 Tenn. LEXIS 378 (Tenn. 1994).

A new party defendant, having a distinct legal entity could not be brought in after one year in suit for personal injuries, except subject to the limitation statutes. Abdallah v. Weil, 168 Tenn. 382, 79 S.W.2d 284, 1934 Tenn. LEXIS 69 (1935).

7. Effect of New Party on Sureties.

The sureties of the defendant on bond for certiorari from a justice of the peace (now general sessions judge) to the circuit court were released from liability where a new party plaintiff was substituted in the circuit court in the place of the original plaintiff. Phillips v. Wells, 34 Tenn. 154, 1854 Tenn. LEXIS 24 (1854).

8. Liberality in Permitting Addition of Parties.

The legislature has evidenced an intention that liberality be practiced in permitting addition of new parties. White v. Henry, 199 Tenn. 219, 285 S.W.2d 353, 1955 Tenn. LEXIS 447 (1955).

9. Propriety of Addition of Parties.

It was proper for chancellor to permit city to become a party defendant in suit to have reviewed and reversed a decree pro confesso adjudging city zoning ordinance invalid and in which proceeding city had been a party defendant. White v. Henry, 199 Tenn. 219, 285 S.W.2d 353, 1955 Tenn. LEXIS 447 (1955).

10. Amended Petition.

Amended petition bringing in new parties in workers' compensation suit which was filed before any answer, demurrer or other pleading had been entered was filed as a matter of right and tolled the running of the statute of limitations as to the new parties. Bowling v. Whitley, 208 Tenn. 657, 348 S.W.2d 310, 1961 Tenn. LEXIS 337 (1961).

Collateral References. 59 Am. Jur. 2d Parties §§ 192-213.

67A C.J.S. Parties §§ 90, 102-111.

Effect of judgment “for plaintiff” in action against multiple defendants. 47 A.L.R.2d 803.

Parties 49-56.

20-1-115. Intervention in property action.

In actions for the recovery of property, any person not a party to the action, on showing interest in the subject matter of the suit, may be allowed to appear as defendant in the action.

Code 1858, § 2799; Shan., § 4496; Code 1932, § 8623; T.C.A. (orig. ed.), § 20-116.

Cross-References. Intervention, Tenn. R. Civ. P. 24.

Textbooks. Tennessee Jurisprudence, 3 Tenn. Juris., Attachment and Garnishment, §§ 48, 164; 20 Tenn. Juris., Parties, § 8.

Law Reviews.

Parties and Claims, 4 Mem. St. U.L. Rev. 280.

NOTES TO DECISIONS

1. Application.

The intervention of new parties as defendants is allowed in equity proceedings or suits in chancery, as well as in actions at law. Hill v. Bowers, 51 Tenn. 272, 1871 Tenn. LEXIS 161 (1871); Stretch v. Stretch, 2 Cooper's Tenn. Ch. 140 (1874); Speak v. Ransom, 2 Cooper's Tenn. Ch. 210 (1875).

This statute applies only in suits for the recovery of specific property. Lowenheim v. Lockhard & Ireland, 61 Tenn. 214, 1872 Tenn. LEXIS 361 (1872); Stretch v. Stretch, 2 Cooper's Tenn. Ch. 140 (1874).

An intervening petition filed in an action at law in the United States district court for the use of a certain other company named therein, was properly dismissed for lack of jurisdiction under the conformity act. Austin Machinery Co. v. Consolidation Coal Co., 67 F.2d 775, 1933 U.S. App. LEXIS 4630 (6th Cir. Tenn. 1933).

2. Mode of Intervening.

A person may, upon affidavit, become a defendant by intervention by filing an answer to the complainant's bill, under the permission of the court. Banks v. Banks, 42 Tenn. 546, 1865 Tenn. LEXIS 101 (1865).

3. Requisites as to Intervention.

Where a person intervenes as a party defendant, claiming an interest in the property, he must make an issue as to the title or interest, or he cannot have his alleged rights adjudicated, and the only judgment that can be rendered against him in such case will be a judgment for costs. Wilson v. Eifler, 47 Tenn. 31, 1869 Tenn. LEXIS 5 (1869).

A petition for permission to intervene as a defendant should clearly show the interest of the petitioner in the property, and where the petition states any matter outside of the record, or operates to suspend the proceeding, it should be verified by affidavit. Hunt v. Wing, 57 Tenn. 139, 1872 Tenn. LEXIS 410 (1872).

Where petitioners merely alleged that they had “equities” in property in litigation which they “believed” belonged to defendant they were not entitled to intervene. Stretch v. Stretch, 2 Cooper's Tenn. Ch. 140 (1874).

To enable one to intervene under this section, he must show himself “interested in the subject matter of the suit” and must have an interest in the property itself, a title to it, a lien on it, or a right to its possession, and without such an interest in the property, he cannot come in under this statute. Marlin v. Merrill, 25 Tenn. App. 328, 156 S.W.2d 814, 1941 Tenn. App. LEXIS 113 (Tenn. Ct. App. 1941); Hamilton Nat'l Bank v. Woods, 34 Tenn. App. 360, 238 S.W.2d 109, 1948 Tenn. App. LEXIS 138, 1948 Tenn. App. LEXIS 139 (Tenn. Ct. App. 1948).

That one as a creditor might have a right to attach the property, or to reduce his debt to judgment and have execution levied on the property, is not enough to entitle him to intervene under this statute. Marlin v. Merrill, 25 Tenn. App. 328, 156 S.W.2d 814, 1941 Tenn. App. LEXIS 113 (Tenn. Ct. App. 1941); Hamilton Nat'l Bank v. Woods, 34 Tenn. App. 360, 238 S.W.2d 109, 1948 Tenn. App. LEXIS 138, 1948 Tenn. App. LEXIS 139 (Tenn. Ct. App. 1948).

Attorney, who was not a party to case and had no interest in case, could not intervene in case because of imputations of fraud against her in the case. Barnes v. Kyle, 202 Tenn. 529, 306 S.W.2d 1, 1957 Tenn. LEXIS 436 (1957).

4. —Attachment Suits.

An attachment suit cannot be regarded as a suit for the recovery of the property attached, in the sense of this section, and the purchaser of the attached property is not entitled to be made a defendant to the suit. American Exchange Bank v. Andrews, 59 Tenn. 306, 1873 Tenn. LEXIS 62 (1873); Lowenheim v. Lockhard & Ireland, 61 Tenn. 214, 1872 Tenn. LEXIS 361 (1872).

Where property is attached for the realization of a debt, a third person may intervene by petition asserting right to the property if there be no objection that intervention should have been by a bill. Bradshaw v. Georgia Loan & Trust Co., 59 S.W. 785, 1900 Tenn. Ch. App. LEXIS 122 (1900).

5. —Dower Proceedings.

A person claiming title paramount to that of a deceased husband could become a party defendant to a proceeding for dower (now abolished), on his own petition. Hill v. Bowers, 51 Tenn. 272, 1871 Tenn. LEXIS 161 (1871).

Person claiming dower (now abolished) could intervene as defendant in a suit of the oral vendee against the heirs of the deceased vendor for specific performance, or for an account of payments and permanent improvements. Treece v. Treece, 73 Tenn. 221, 1880 Tenn. LEXIS 113 (1880).

6. —Money Derived from Particular Transaction.

Ordinarily, money unearmarked, or otherwise distinctive, would not constitute “property” within the meaning of this section, but, under certain circumstances, where funds derive from a particular transaction and the judgment of the court is invoked as to whether they are subject to garnishment at the instance of a judgment creditor, they are deemed then to be of such character as to permit intervention by an adverse claimant, not a party to the proceeding, demonstrating an interest therein. Hamilton Nat'l Bank v. Woods, 34 Tenn. App. 360, 238 S.W.2d 109, 1948 Tenn. App. LEXIS 138, 1948 Tenn. App. LEXIS 139 (Tenn. Ct. App. 1948).

7. —Proceedings to Assert Lien.

Where divorce decree awarded a lien against husband's realty to secure support and maintenance of minor child awarded to wife and also awarded a lien against such property to secure attorney's fees, wife was entitled to intervene in suit by attorney to assert his lien, and to assert the superiority of the lien awarded for support and maintenance. Clements v. Holmes, 22 Tenn. App. 230, 120 S.W.2d 988, 1938 Tenn. App. LEXIS 20 (Tenn. Ct. App. 1938).

In suit by mortgagor to recover on fire insurance policy for alleged loss and damages to buildings and personal property, mortgagee which alleged that it would suffer irreparable injury if equitable lien was not impressed on half the interest in the proceeds of the policy should have been permitted to become a party. Greer v. American Sec. Ins. Co., 223 Tenn. 390, 445 S.W.2d 904, 1969 Tenn. LEXIS 424 (1969).

8. —Purchase Pending Litigation.

While the complainant may make the purchaser of property pending litigation a party, or may ignore the purchaser and proceed to final decree against the original parties, the purchaser is not entitled to be made a party defendant to the litigation, either by petition or by original bill in the nature of a supplemental bill. American Exchange Bank v. Andrews, 59 Tenn. 306, 1873 Tenn. LEXIS 62 (1873).

A purchaser at a tax sale, pending litigation about the property in controversy, and, in the custody of the court, may come in by petition to have his rights declared, or for leave to institute the proper legal proceedings for their assertion. Paul v. Hill, 3 Cooper's Tenn. Ch. 443 (1877).

9. —Trustee under Assignment for Creditors.

The intervening defendant must show his interest in the property, and, therefore, a mere trustee under an assignment for creditors is considered not to be entitled to be made a party defendant in an attachment proceeding against the goods of his assignor, upon his affidavit that he was interested in the subject matter of the suit. Lowenheim v. Lockhard & Ireland, 61 Tenn. 214, 1872 Tenn. LEXIS 361 (1872).

10. —Vendor's Lien Note.

Where A files a bill on a vendor's lien note, and B seeks to intervene to show his ownership of the note, the latter is properly allowed to intervene and to file an answer and cross bill to establish his rights. Bank of McKenzie v. Manley, 13 Tenn. App. 630, — S.W.2d —, 1931 Tenn. App. LEXIS 106 (Tenn. Ct. App. 1931).

11. Effect of Former Judgment on Intervener.

A former judgment in another state, upon intervention, is a bar to a suit in this state, for, where a party intervenes, a judgment in the case is conclusive upon him. Rembert v. Halley & Haskins, 29 Tenn. 512, 29 Tenn. 513, 1850 Tenn. LEXIS 26 (1850).

Collateral References. 59 Am. Jur. 2d Parties § 152.

67A C.J.S. Parties §§ 73, 75.

Private boundary line, bringing in necessary parties in suit or proceeding for establishment of. 73 A.L.R.3d 948.

Who may intervene in suit to quiet title. 170 A.L.R. 149.

Parties 40(2).

20-1-116. Substitution of defendant in property action.

  1. At any time before defense made, the defendant may apply to the court to substitute in the defendant's place any person not already a party, who claims the money or property in suit, by filing an affidavit, stating the facts on which the person founds the application, showing that the right in the subject matter in controversy is in the third person; that the affiant has no interest in the suit, and may be exposed to the claim of two (2) or more adverse parties, denying all collusion with the party sought to be substituted, and proffering to pay the money or deliver the property into the custody of the court.
  2. If, on notice to the plaintiff and the person sought to be substituted as defendant, sufficient cause is shown, the court may order the substitution and discharge the original defendant from liability to either party, and make such disposition, pending the suit, of the fund or property in controversy, as to secure the money, property or its value to the party who shall prove to be entitled.

Code 1858, § 2800 (deriv. Acts 1857-1858, ch. 56, § 1); Shan., § 4497; Code 1932, § 8624; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 20-117.

Textbooks. Tennessee Jurisprudence, 3 Tenn. Juris., Attachment and Garnishment, § 164; 20 Tenn. Juris., Parties, § 8.

Cited: Barnes v. Prudential Ins. Co., 28 Tenn. App. 109, 186 S.W.2d 918, 1944 Tenn. App. LEXIS 70 (Tenn. Ct. App. 1944); Hamilton Nat'l Bank v. Woods, 34 Tenn. App. 360, 238 S.W.2d 109, 1948 Tenn. App. LEXIS 138, 1948 Tenn. App. LEXIS 139 (Tenn. Ct. App. 1948).

Collateral References. 45 Am. Jur. 2d Interpleader § 19.

67A C.J.S. Parties §§ 103-111.

Parties 59.

20-1-117. Substitution for levying officer.

  1. Where property is levied upon under any process of law by an officer and taken into possession, and an action is brought against the officer for the recovery of the property or for damages, any person at whose instance the process issued may be permitted to come into court at any time before the cause is finally disposed of and be substituted as defendant in the place of the officer, of which an entry shall be made upon the minutes of the court.
  2. The party so substituted may, in the discretion of the court, be compelled to assume and give security for all costs that have or may become chargeable to the officer up to the time of the substitution.
  3. Upon the substitution, the officer shall no longer be a party to the suit but shall be a competent witness in the suit.

Acts 1859-1860, ch. 104, §§ 1, 3; Shan., §§ 4498, 4500; Code 1932, §§ 8625, 8627; T.C.A. (orig. ed.), § 20-118.

Textbooks. Tennessee Jurisprudence, 20 Tenn. Juris., Parties, § 8.

NOTES TO DECISIONS

1. Effect on Action.

The action and question to be tried remain unchanged, and in a replevin suit the substitution does not release the surety on the replevin bond. Elder v. Fielder, 68 Tenn. 272, 1878 Tenn. LEXIS 5 (1878).

2. Plaintiff's Assent Unnecessary.

Plaintiff's assent to the substitution of the party at whose instance the levy was made, as the real defendant instead of the levying officer, is not necessary. Elder v. Fielder, 68 Tenn. 272, 1878 Tenn. LEXIS 5 (1878).

Collateral References. 59 Am. Jur. 2d Parties § 152.

67A C.J.S. Parties §§ 58-64.

Parties 59.

20-1-118. Default judgment against levying officer.

Upon written notice from the levying officer being served upon the party at whose instance the process issued, stating the nature of the suit, the court in which it is pending, and demanding that the party come into court and be substituted in the place of the officer, and stating the day upon which the application for substitution shall be made, if the party does not appear and become substituted in the officer's place, the officer may permit judgment to go by default against the officer or make defense.

Acts 1859-1860, ch. 104, § 2; Shan., § 4499; mod. Code 1932, § 8626; T.C.A. (orig. ed.), § 20-119.

Cited: Chattanooga Cotton-Oil Co. v. Shamblin, 101 Tenn. 263, 47 S.W. 496, 1898 Tenn. LEXIS 60 (1898).

20-1-119. Comparative fault — Joinder of third party defendants.

  1. In civil actions where comparative fault is or becomes an issue, if a defendant named in an original complaint initiating a suit filed within the applicable statute of limitations, or named in an amended complaint filed within the applicable statute of limitations, alleges in an answer or amended answer to the original or amended complaint that a person not a party to the suit caused or contributed to the injury or damage for which the plaintiff seeks recovery, and if the plaintiff's cause or causes of action against that person would be barred by any applicable statute of limitations but for the operation of this section, the plaintiff may, within ninety (90) days of the filing of the first answer or first amended answer alleging that person's fault, either:
    1. Amend the complaint to add the person as a defendant pursuant to Tenn. R. Civ. P. 15 and cause process to be issued for that person; or
    2. Institute a separate action against that person by filing a summons and complaint. If the plaintiff elects to proceed under this section by filing a separate action, the complaint so filed shall not be considered an original complaint initiating the suit or an amended complaint for purposes of this subsection (a).
  2. A cause of action brought within ninety (90) days pursuant to subsection (a) shall not be barred by any statute of limitations. This section shall not extend any applicable statute of repose, nor shall this section permit the plaintiff to maintain an action against a person when such an action is barred by an applicable statute of repose.
  3. This section shall neither shorten nor lengthen the applicable statute of limitations for any cause of action, other than as provided in subsection (a).
  4. Subsections (a) and (b) shall not apply to any civil action commenced pursuant to § 28-1-105, except an action originally commenced in general sessions court and subsequently recommenced in circuit or chancery court.
  5. This section shall not limit the right of any defendant to allege in an answer or amended answer that a person not a party to the suit caused or contributed to the injury for which the plaintiff seeks recovery.
  6. As used in this section, “person” means any individual or legal entity.
  7. Notwithstanding any law to the contrary, this section applies to suits involving governmental entities.

Acts 1993, ch. 407, § 1; 1999, ch. 485, § 1.

Compiler's Notes. Acts 1993, ch. 407, § 2 provided that if any provision of that act is declared invalid on its face or as applied in a particular circumstance, each and every provision of the act shall be invalid and unenforceable.

Cross-References. Personal service on the state or any agency thereof, Tenn. R. Civ. P. 4.04.

Specificity of answer to trigger savings statute, Tenn. R. Civ. P. 8.03.

Law Reviews.

Assumption of Risk in Tennessee Subsequent to the Adoption of Comparative Fault: Perez v. McConkey (Mark W. Milam), 60 Tenn. L. Rev. 1007 (1993).

Comparative Fault—Banks v. Elks Club Pride: Preserving Fairness in Liability While Adhering to Strict Comparative Fault Principles (Anna Rudman-Santos), 41 U. Mem. L. Rev. 637 (2011).

Comparative Fault in Tennessee: Where Are We Going and Why Are We in this Handbasket?, 67 Tenn. L. Rev. 765 (2000).

Fear the dark no more (John A. Day), 37 No. 9 Tenn. B.J. 37 (2001).

No Fault for Phantoms (John A. Day), 36 No. 6 Tenn. B.J. 27 (2000).

The Aftermath of Owens and Whitehead — Products Liability and Comparative Fault in Tennessee-How Deep Does the Relationship Run?, 32 U. Mem. L. Rev. 443 (2002).

The Category of Tough: Nonsuits III (Donald F. Paine), 34 No. 5 Tenn. B.J. 16 (1998).

The McIntyre Saving Statute (Donald F. Paine), 33 No.4.Tenn.B.J. 21 (1997).

Tort Law–Comparative Fault-Original Tortfeasor Rule in Tennessee (Dan Calvert), 78 Tenn. L. Rev. 259 (2010).

Torts — Ridings v. Ralph M. Parsons Co.: The Tennessee Supreme Court Rejects Use of Employer Negligence to Reduce Liability of Defendants in Post-McIntyre On-the-Job Tort Cases, 26 U. Mem. L. Rev. 1533 (1996).

Torts — Volz v. Ledes: The Tennessee Supreme Court Abolishes Joint and Several Liability in Medical Malpractice Cases Involving Multiple Tortfeasors Whose Separate Acts Cause Indivisible Injury, 26 U. Mem. L. Rev. 1555 (1996).

What Now? Statutes of Limitations, Amended Complaints and McInytre (Jeffrey L. Ingram), 29 No. 6 Tenn. B.J. 10 (1993).

Enough with the White Lie-ability: Decreasing Frivolous Health Care Liability Actions in Tennessee with Time and Transparency, 46 U. Mem. L. Rev. 503 (2015).

Cited: Smith v. Methodist Hosps. of Memphis, 995 S.W.2d 584, 1999 Tenn. App. LEXIS 4 (Tenn. Ct. App. 1999); Resor v. Graves, 108 F. Supp. 2d 929, 2000 U.S. Dist. LEXIS 14720 (E.D. Tenn. 2000); Lipscomb v. Doe, 32 S.W.3d 840, 2000 Tenn. LEXIS 663 (Tenn. 2000); Wielgus v. Dover Indus., 39 S.W.3d 124, 2000 Tenn. App. LEXIS 369 (Tenn. Ct. App. 2000); Breeding v. Edwards, 62 S.W.3d 170, 2001 Tenn. App. LEXIS 459 (Tenn. Ct. App. 2001); First Tenn. Nat'l Corp. v. Horizon Nat'l Bank, 225 F. Supp. 2d 816, 2002 U.S. Dist. LEXIS 19972 (W.D. Tenn. 2002); McNabb v. Highways, Inc., 98 S.W.3d 649, 2003 Tenn. LEXIS 163 (Tenn. 2003); Phillips v. Allergan, Inc., — F. Supp. 2d —, 2008 U.S. Dist. LEXIS 44692 (M.D. Tenn. June 2, 2008); Bellsouth Telcoms., Inc. v. Young, — S.W.3d —, 2011 Tenn. App. LEXIS 330 (Tenn. Ct. App. June 21, 2011); Johnson v. Floyd, — S.W.3d —, 2012 Tenn. App. LEXIS 448 (Tenn. Ct. App. June 29, 2012); Lawing v. Greene County EMS, — S.W.3d —, 2012 Tenn. App. LEXIS 921 (Tenn. Ct. App. Dec. 17, 2011).

NOTES TO DECISIONS

1. Applicability.

In a personal injury action, where T.C.A. § 20-1-119 was enacted and effective prior to the running of the general statute of limitations as to certain third-party defendants, the section applied to extend the statute until after 90 days had elapsed from filing the answer alleging the complicity of such defendants in plaintiff's injuries. Graves v. Grady's Inc., 906 S.W.2d 463, 1995 Tenn. App. LEXIS 400 (Tenn. Ct. App. 1995), appeal denied, — S.W.2d —, 1995 Tenn. LEXIS 550 (Tenn. Sept. 18, 1995).

Defendants in a suit for personal injuries based on allegations of negligence and strict liability in tort could not assert as an affirmative defense that plaintiff's employer caused or contributed to plaintiff's injuries and damages, notwithstanding that the injuries were sustained in the course and scope of plaintiff's employment. Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79, 1996 Tenn. LEXIS 57 (Tenn. 1996).

Where plaintiff filed a negligence action against a restaurant for injuries sustained when a stool collapsed, the actions for strict liability and negligence against the manufacturer and the seller of the stool which were brought more than six years from the date of the injury were barred by the statute of limitations; the enactment of T.C.A. § 20-1-119 after the date of plaintiff's original complaint did not revive the plaintiff's right to assert such claims. Owens v. Truckstops of Am., 915 S.W.2d 420, 1996 Tenn. LEXIS 62 (Tenn. 1996).

T.C.A. § 20-1-119 can not be used to extend the period in which to file suit against a governmental entity under T.C.A. § 29-20-305. The 12 month period in T.C.A. § 29-20-305 is a condition precedent to a right of action. Daniel ex rel. Daniel v. Hardin County Gen. Hosp., 971 S.W.2d 21, 1997 Tenn. App. LEXIS 920 (Tenn. Ct. App. 1997), superseded by statute as stated in, Cunningham v. Williamson County Hosp. Dist., — S.W.3d —, 2011 Tenn. App. LEXIS 645 (Tenn. Ct. App. Nov. 30, 2011).

Consistent with the construction that T.C.A. § 20-1-119 should be construed liberally, an added defendant's status as a party should be determined, not when the original defendant names the added defendant as an additional comparative tortfeasor in its answer or amended answer, but rather when the plaintiff either seeks to amend its complaint to name the additional comparative tortfeasor as an additional defendant or to file a separate complaint against the additional comparative tortfeasor. Townes v. Sunbeam Oster Co., 50 S.W.3d 446, 2001 Tenn. App. LEXIS 68 (Tenn. Ct. App. 2001).

T.C.A. § 20-1-119 gives an additional 90 days to file suit against a potential nonparty tortfeasor whenever an answer gives notice of the nonparty's identity and alleges facts that reasonably support a conclusion that the nonparty caused or contributed to an injury, and T.C.A. § 20-1-119 applies whether the nonparty is alleged to be partially responsible or totally responsible for the injuries; therefore, summary judgment was inappropriately granted to the state in a case where a county's answer in a personal injury case relating to the placement of a stop alleged that the state was responsible for the maintenance of the area. Austin v. State, 222 S.W.3d 354, 2007 Tenn. LEXIS 434 (Tenn. 2007).

T.C.A. § 20-1-119 was inapplicable where defendant driver's answer to the couple's original personal injury complaint made no reference to his employer, and therefore it did not satisfy the statute, as it neither gave the couple notice of the identity of a potential nonparty tortfeasor nor alleged facts that reasonably supported a conclusion that the nonparty caused or contributed to the couple's injury; this section did not save untimely claims simply because the couple learned that there may be another potential defendant to the suit. Grindstaff v. Bowman, — S.W.3d —, 2008 Tenn. App. LEXIS 323 (Tenn. Ct. App. May 29, 2008).

Hotel’s allegations in their answer to plaintiffs’ complaint in their premises liability action that the political party caused or contributed to husband’s injuries was sufficient to trigger T.C.A. § 20-1-119(a); because plaintiffs did not add the political party within the 90-day window provided by the statute, the statute of limitations once again expired and therefore plaintiffs’ claims against the political party were time barred. Allen v. Historic Hotels of Nashville, LLC, — S.W.3d —, 2008 Tenn. App. LEXIS 764 (Tenn. Ct. App. Dec. 9, 2008).

T.C.A. § 20-1-119 was not applicable in the case against the officer defendants because the officer defendants were not identified in the corporation's answer alleging comparative fault in keeping with Tennessee state law, and the corporation's general identification of “law enforcement” in its answer was too vague to indicate any specific individuals or enable plaintiffs to serve anyone without additional information. Woodward v. City of Gallatin, — F. Supp. 2d —,  2012 U.S. Dist. LEXIS 105568 (M.D. Tenn. July 30, 2012).

Argument that T.C.A. § 20-1-119 should not have applied because the officer defendants were already parties to the suit as John Does failed because John Does were consistently recognized as separate parties from subsequently charged parties intended to replace the John Does. Woodward v. City of Gallatin, — F. Supp. 2d —,  2012 U.S. Dist. LEXIS 105568 (M.D. Tenn. July 30, 2012).

Section 20-1-119 is not a statute of limitations. The phrase “applicable statute of limitations” used in the body of the statute does not refer to the ninety-day period, but refers only to the statute of limitations applicable to the plaintiff's cause of action. Mills v. Fulmarque, Inc., 360 S.W.3d 362, 2012 Tenn. LEXIS 142 (Tenn. Feb. 24, 2012).

Section 20-1-119 provides a ninety-day window in which a plaintiff may name a new nonparty as a defendant only if the defendant alleging comparative fault against the new nonparty was sued within the statute of limitations applicable to the plaintiff's cause of action. Mills v. Fulmarque, Inc., 360 S.W.3d 362, 2012 Tenn. LEXIS 142 (Tenn. Feb. 24, 2012).

“Applicable statute of limitations” does not include the ninety-day period and Tenn. Ann. Code § 20-1-119 does not afford successive ninety-day windows during which a plaintiff may file an amended complaint naming a nonparty defendant as a comparative tort-feasor. Mills v. Fulmarque, Inc., 360 S.W.3d 362, 2012 Tenn. LEXIS 142 (Tenn. Feb. 24, 2012).

T.C.A. § 20-1-119 says that the defendant alleging comparative fault against the nonparty must have been sued within the statute of limitations. Mills v. Fulmarque, Inc., 360 S.W.3d 362, 2012 Tenn. LEXIS 142 (Tenn. Feb. 24, 2012).

Court of appeals erred in affirming an order granting fraternity members'  motion to dismiss vehicle owners'  complaint on the ground that it was barred by the one-year statute of limitations, T.C.A. § 28-3-104, because “a person not a party to the suit,” for purposes of T.C.A. § 20-1-119, included any defendant previously dismissed pursuant to a written, non-final order under Tenn. R. Civ. P. 54.02; a named defendant ceases to be a “party to the suit,” for purposes of § 20-1-119, when the trial court issues an order, whether final or interlocutory, dismissing that defendant. Mann v. Alpha Tau Omega Fraternity, 380 S.W.3d 42, 2012 Tenn. LEXIS 468 (Tenn. July 3, 2012).

1.5. Construction.

Arguments are unconvincing that the statute exists to remedy unfairness and construing the statute a certain way disregards its limited purpose, as accepting such arguments would require the court to read a requirement into the statute that is simply not there. Becker v. Ford Motor Co., 431 S.W.3d 588, 2014 Tenn. LEXIS 191 (Tenn. Mar. 7, 2014).

Plain reading of the statute indicates a plaintiff is permitted to assert a claim against a person not a party to the complaint within 90 days if (1) a defendant is named in an original or amended complaint within the statute of limitations, (2) that defendant alleges in an answer or amended answer that a person not a party caused or contributed to the injury, and (3) the plaintiff's cause(s) of action against that person would be barred by the statute of limitations were it not for the statute. Scales v. H.G. Hill Realty Co., LLC, — S.W.3d —, 2018 Tenn. App. LEXIS 56 (Tenn. Ct. App. Jan. 30, 2018).

Drafters contemplated the possibility that the original complaint and the claim against the comparative tortfeasor could be governed by different statutes of limitations; a plain and ordinary reading of the statute requires that the original complaint be filed within the statute of limitations applicable to the original claim in order to trigger the 90-day grace period afforded by the statute. Nationwide Mut. Fire Ins. Co. v. Memphis Light, Gas And Water, — S.W.3d —, 2018 Tenn. App. LEXIS 722 (Tenn. Ct. App. Dec. 13, 2018).

Utilization of the 90-day grace period simply does not shorten nor lengthen the applicable statute of limitations for any cause of action, other than as provided in T.C.A. § 20-1-119(a); to now hold that governmental entities are protected from the provisions of the statute whenever the original claim is governed by a longer statute of limitations than a claim under the Governmental Tort Liability Act (GTLA) would frustrate the general purpose of the statute and the legislature's specific amendment to bring GTLA defendants within its scope. Nationwide Mut. Fire Ins. Co. v. Memphis Light, Gas And Water, — S.W.3d —, 2018 Tenn. App. LEXIS 722 (Tenn. Ct. App. Dec. 13, 2018).

“Applicable statute of limitations” referred to with regard to the timeliness of the original complaint will never include the statute of limitations applicable to the comparative tortfeasor; moreover, the 90-day period is available to a plaintiff only when a defendant sued within the statute of limitations applicable to the plaintiff's underlying cause of action raises an issue of comparative fault in its answer. Nationwide Mut. Fire Ins. Co. v. Memphis Light, Gas And Water, — S.W.3d —, 2018 Tenn. App. LEXIS 722 (Tenn. Ct. App. Dec. 13, 2018).

2. Vicarious Liability.

Although a literal reading of Tenn. Code Ann. § 20-1-119 suggests that only a person or entity whose negligent conduct caused or contributed to the plaintiff's injury in a cause in fact sense can be named as a defendant under the statute, Tenn. Code Ann. § 20-1-119 should not be construed so narrowly. This statute was enacted in response to the Tennessee supreme court's adoption of comparative fault, and the concepts of fairness and efficiency form the basis of such a system. As such, Tenn. Code Ann. § 20-1-119 contemplates naming vicariously liable nonparties as defendants. Browder v. Morris, 975 S.W.2d 308, 1998 Tenn. LEXIS 463 (Tenn. Special Workers' Comp. App. Panel 1998).

The plaintiff in an automobile accident case was permitted to amend the complaint after the expiration of the limitations period and after the defendant filed an answer naming the driver's employer as an unnamed defendant, to assert a vicarious liability claim against the driver's employer. Browder v. Morris, 975 S.W.2d 308, 1998 Tenn. LEXIS 463 (Tenn. Special Workers' Comp. App. Panel 1998).

3. Notice of Identity of Third Person.

In a personal injury action, dismissal of plaintiff's third-party claim as time barred was proper even though the defendant did not disclose the identity of the third person in its answer asserting a comparative fault defense; plaintiff had adequate opportunity to discover the identity of the third party in order to amend the complaint within 90 days of the defendant's answer. Soper v. Wal-Mart Stores, 923 F. Supp. 1032, 1996 U.S. Dist. LEXIS 6145 (M.D. Tenn. 1996).

T.C.A. § 20-1-119 does not apply to a plaintiff who had knowledge that a third party may be at fault for the complained of injuries long before the defendant's answer to the complaint. Whittlesey v. Cole, 142 F.3d 340, 1998 FED App. 120P, 1998 U.S. App. LEXIS 7552 (6th Cir. Tenn. 1998).

T.C.A. § 20-1-119 contemplates that the plaintiff will actually know the identity of the alleged individual or entity to be joined. Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785, 2000 Tenn. LEXIS 53 (Tenn. 2000).

Defendant may not attribute fault to a nonparty who is not identified sufficiently to allow the plaintiff to plead and serve process on such person pursuant to T.C.A. § 20-1-119, even if the defendant establishes the nonparty's existence by clear and convincing evidence. Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785, 2000 Tenn. LEXIS 53 (Tenn. 2000).

To allow a defendant to attribute fault to an unidentified nonparty would not only diminish a defendant's incentive to identify additional tortfeasors, but also would effectively impose a burden on the plaintiff to “defend” the unidentified nonparty. Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785, 2000 Tenn. LEXIS 53 (Tenn. 2000).

A plaintiff's knowledge of the existence of other persons who might be liable for the plaintiff's injuries is irrelevant. Townes v. Sunbeam Oster Co., 50 S.W.3d 446, 2001 Tenn. App. LEXIS 68 (Tenn. Ct. App. 2001).

Pedestrian did not meet her burden of establishing that her slip and fall claim against a janitorial service was excepted from the statute of limitations under T.C.A. § 28-3-104(a)(1) because the janitorial service was added as a defendant during the 90-day grace period created by T.C.A. § 20-1-119; the 90-day period was not triggered by an airport's response to a discovery request because an answer was required to trigger the 90-day period, and a discovery response was not the same thing as an answer. Shaffer v. Memphis Airport Auth., — S.W.3d —, 2013 Tenn. App. LEXIS 32 (Tenn. Ct. App. Jan. 18, 2013).

By its terms, T.C.A. § 20-1-119 provides a kind of safe harbor to a plaintiff, a window of opportunity to amend the complaint to add a defendant after the statute of limitations has run, but this window is opened only under the limited circumstances specified in the statute, namely, where a defendant named in an original complaint filed within the applicable statute of limitations alleges in an answer or amended answer that a person not a party to the suit caused or contributed to the injury for which the plaintiff seeks recovery; a discovery response simply is not the same thing as an answer. Shaffer v. Memphis Airport Auth., — S.W.3d —, 2013 Tenn. App. LEXIS 32 (Tenn. Ct. App. Jan. 18, 2013).

Sixth Circuit rejected the notion that the statute applies to any tortfeasor identified in the defendant's answer, regardless of whether that tortfeasor was known or unknown to the plaintiff before the statute of limitations expired, and the Sixth Circuit's view is incorrect. Becker v. Ford Motor Co., 431 S.W.3d 588, 2014 Tenn. LEXIS 191 (Tenn. Mar. 7, 2014).

Having determined that the interpretation of the statute in Townes v. Sunbeam Oster Co. is controlling authority for all purposes, the Tennessee Supreme Court answers the certified question as follows: a plaintiff may rely on the 90-day savings provision in order to add a previously known potential nonparty tortfeasor to an existing lawsuit even when the plaintiff knew the identity of the potential tortfeasor at the time of the filing of the plaintiff's original complaint but chose not to sue the potential tortfeasor. Becker v. Ford Motor Co., 431 S.W.3d 588, 2014 Tenn. LEXIS 191 (Tenn. Mar. 7, 2014).

Plaintiff's ability to utilize the statute to amend its complaint to assert a claim against a non-party against whom a defendant has asserted a comparative fault claim or to file a separate new complaint against such a non-party does not depend on whether the non-party was either known or unknown to the plaintiff when its original complaint was filed. Becker v. Ford Motor Co., 431 S.W.3d 588, 2014 Tenn. LEXIS 191 (Tenn. Mar. 7, 2014).

Application of the statute is not restricted to tortfeasors who were unknown to the plaintiff when its original complaint was filed; therefore, the statute permits a plaintiff to file an amended complaint against the tortfeasor named by the defendant within 90 days after the filing of the answer or amended answer in which the defendant first asserts a comparative fault claim against the tortfeasor. Becker v. Ford Motor Co., 431 S.W.3d 588, 2014 Tenn. LEXIS 191 (Tenn. Mar. 7, 2014).

Trial court properly dismissed a patient's medical malpractice action as time barred because medical malpractice actions were subject to a one-year statute of limitations, the patient's amended complaint was filed more than one year after the alleged negligent medical treatment, although a hospital's original answer did not name specific physicians or parties who treated the patient, it was sufficient to put the patient on notice that a nonparty caused or contributed to the injuries alleged. Swearengen v. DMC-Memphis, Inc., 488 S.W.3d 774, 2015 Tenn. App. LEXIS 192 (Tenn. Ct. App. Apr. 2, 2015), appeal denied, Swearengen v. DMC-Memphis, Inc., — S.W.3d —, 2015 Tenn. LEXIS 636 (Tenn. Aug. 13, 2015).

Decision to strike the affirmative defense of comparative fault as to John Doe and a truck was premature because a driver and employer were not given a reasonable opportunity to engage in pre-trial discovery to identify John Doe in sufficient detail for a pedestrian to serve process on John Doe; the employer obtained a recording of the 911 call made from the scene, discovered the pedestrian was allegedly struck by the truck, and amended its answer attributing fault to the company and John Doe. Santore v. Stevenson, — S.W.3d —, 2018 Tenn. App. LEXIS 94 (Tenn. Ct. App. Feb. 20, 2018).

4. Joinder.

Where separate independent negligent acts of more than one tortfeasor combine to cause single, indivisible injury, all tortfeasors must be joined in same action unless joinder is specifically prohibited by law. Samuelson v. McMurtry, 962 S.W.2d 473, 1998 Tenn. LEXIS 61 (Tenn. 1998).

Trial court properly granted defendants'  motions for summary judgment and to dismiss because the original statute of limitations, T.C.A. § 28-3-104, had expired, and T.C.A. § 20-1-119 could not be utilized extend the limitations period against defendants; because the trial court failed to direct the entry of a final judgment when it granted defendants'  motions as to plaintiffs'  first amended complaint, the action did not terminate as to defendants, and since no final order was entered against defendants, they remained parties to when plaintiffs sought to assert claims against them in their second amended complaint. Mann v. Alpha Tau Omega Fraternity, — S.W.3d —, 2011 Tenn. App. LEXIS 422 (Tenn. Ct. App. Aug. 2, 2011), rev'd, 380 S.W.3d 42, 2012 Tenn. LEXIS 468 (Tenn. July 3, 2012).

Mere filing of a motion for an interlocutory appeal by vehicle owners of the dismissal of their first amended complaint before filing their second amended complaint did not somehow nullify the trial court's orders dismissing fraternity members because for purposes of T.C.A. § 20-1-119, the members were not parties to the suit. Mann v. Alpha Tau Omega Fraternity, 380 S.W.3d 42, 2012 Tenn. LEXIS 468 (Tenn. July 3, 2012).

Trial court erred in granting limited liability companies'  (LLCs) motion to dismiss because the statute permitted a customer to add the formerly dismissed LLCs back into her lawsuit to recover for injuries she sustained when she slipped and fell at a grocery store; pursuant to the one-year statute of limitations, the action against the LLCs was still viable when the grocery store identified them as comparative tortfeasors, and the customer filed her second amended complaint within 90 days. Scales v. H.G. Hill Realty Co., LLC, — S.W.3d —, 2018 Tenn. App. LEXIS 56 (Tenn. Ct. App. Jan. 30, 2018).

5. Filing Requirement.

If a plaintiff elects to add a new defendant to the complaint pursuant to Tenn. Code Ann. § 20-1-119(a)(1), an amended complaint must in fact be filed within the 90-day period, and the mailing of a copy of the proposed amended complaint to the defendant within 90 days does not suffice. Young v. Toys R Us, 987 F. Supp. 1035, 1997 U.S. Dist. LEXIS 20428 (E.D. Tenn. 1997).

Trial court properly denied plaintiffs' motion to amend their complaint although plaintiffs met the requirements of T.C.A. § 20-1-119, as the cardiology company was named a defendant within the applicable statute of limitations but not within the limits of the statute of repose. McCullough v. Johnson City Emergency Physicians, P.C., 106 S.W.3d 36, 2002 Tenn. App. LEXIS 896 (Tenn. Ct. App. 2002), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 529  (Tenn. 2003).

In a medical malpractice action, the first doctor's answer to the complaint alleging that the first doctor did not prescribe the drug and denying any negligence or responsibility triggered T.C.A. § 20-1-119, which allowed the patient and the family member 90 days in which to amend their complaint to add the anesthesiologist and the nurse; thus, their claims against the anesthesiologist and the nurse were not time barred under T.C.A. § 29-26-116(a)(1). Romine v. Fernandez, 124 S.W.3d 599, 2003 Tenn. App. LEXIS 500 (Tenn. Ct. App. 2003), appeal denied, — S.W.3d —, 2003 Tenn. LEXIS 1292 (Tenn. 2003).

Trial court did not err in granting summary judgment to a doctor who had been charged with comparative fault by defendant hospital in a medical malpractice suit, where the patient's representative's amended complaint naming the doctor was filed beyond the one-year statute of limitation and she failed to file her amended complaint and to cause process to be issued within 90 days as required by T.C.A. § 20-1-119; the motion to amend her complaint simply failed to fulfill the unambiguous requirements of T.C.A.§ 20-1-119. Ward v. AMI SUB (SFH), Inc., 149 S.W.3d 35, 2004 Tenn. App. LEXIS 117 (Tenn. Ct. App. 2004), appeal denied, Ward v. AMI SUB, Inc., — S.W.3d —, 2004 Tenn. LEXIS 760 (Tenn. Sept. 7, 2004).

Plaintiff's right to invoke T.C.A. § 20-1-119 does not depend upon whether the defendant whose answer triggered a ninety-day window remains a party to the suit because the plaintiff need only to have sued this defendant within the statute of limitations and filed within the ninety-day window an amended complaint naming the non-party. Mann v. Alpha Tau Omega Fraternity, 380 S.W.3d 42, 2012 Tenn. LEXIS 468 (Tenn. July 3, 2012).

Trial court erred in dismissing a claim for injuries suffered when a tree fell on a car as untimely where the driver's timely filed notice with the Division of Claims Administration was the original complaint under T.C.A. § 20-1-119, the requirements of T.C.A. § 20-1-119(a) had been met, and as a result, the statute of limitations in T.C.A. § 29-20-305(b) had been extended. Moreno v. City of Clarksville, — S.W.3d —, 2014 Tenn. App. LEXIS 94 (Tenn. Ct. App. Feb. 25, 2014), rev'd, 479 S.W.3d 795, 2015 Tenn. LEXIS 741 (Tenn. Sept. 18, 2015).

6. Governmental Entities.

Defendant in tort claim based on auto accident was prohibited from attributing fault to non-party county where plaintiffs were precluded from bringing suit against the county by the limitations period applicable to governmental entities. Bumgardner v. Vonk, 995 F. Supp. 815, 1998 U.S. Dist. LEXIS 2912 (E.D. Tenn. 1998).

Intent and purpose of the legislature was to include the state of Tennessee as a governmental entity for the purpose of T.C.A. § 20-1-119(g); because the estate's claim was filed within 90 days of the nursing home's answer, the claim was timely filed and was not barred by the statute of limitations. Conley v. State, 141 S.W.3d 591, 2004 Tenn. LEXIS 662 (Tenn. 2004).

7. Jury Instructions.

In multi-party actions, the trial court should instruct the jury to engage in a three-step process which creates a correlation between liability and fault: (1) As in any comparative fault case, the jury should determine the actual dollar amount of the damages incurred by each claimant individually without taking fault into consideration; (2) The jury should allocate percentages of fault (totalling 100 percent) to each actor whose fault caused or contributed to the accident; and (3) The jury should state the percentage by which the claimant's conduct caused or contributed to the claimant's own injuries along with the percentage of fault collectively attributable to the actor or actors whose fault was the cause of the accident. Grandstaff v. Hawks, 36 S.W.3d 482, 2000 Tenn. App. LEXIS 355 (Tenn. Ct. App. 2000).

8. Additional Parties.

Plaintiff substantially complied with T.C.A. § 20-1-119 and Tenn. R. Civ. P. 15.01 and the denial of a motorcycle escort service's motion to dismiss the amended complaint was not an abuse of discretion where: (1) Plaintiff's one-day delay in filing the motion to amend her complaint was not fatal as the amended complaint was filed, service of process was obtained, and leave to amend was granted within the ninety-day time frame required by T.C.A. § 20-1-119; (2) This was plaintiff's first attempt to amend her complaint and the amendment was important in order to resolve the matter with all potentially liable parties before the trial court at once; and (3) Had the trial court denied plaintiff's motion, she could have proceeded by bringing an original complaint in a separate action and the escort service could have been made a party to that suit without permission of the trial court or the parties. Jones v. Prof'l Motorcycle Escort Serv., L.L.C., 193 S.W.3d 564, 2006 Tenn. LEXIS 430 (Tenn. 2006).

As defendant-A was named in an amended personal injury complaint filed within the applicable statute of limitations under T.C.A. § 28-3-104, and as defendant-B was thereafter named in a second amended complaint within 90 days from the identification of it for comparative fault purposes under T.C.A. § 20-1-119, the claim against defendant-B was not time-barred; accordingly, it was error to grant summary judgment to defendant-B on that basis. Mills v. Fulmarque, Inc., — S.W.3d —, 2010 Tenn. App. LEXIS 793 (Tenn. Ct. App. Dec. 23, 2010), rev'd, 360 S.W.3d 362, 2012 Tenn. LEXIS 142 (Tenn. Feb. 24, 2012).

In a negligence action, plaintiff's claims against a late-added defendant were barred by the one-year statute of limitations of T.C.A. § 28-3-104 when plaintiff failed to amend her complaint pursuant to T.C.A. § 20-1-119 to add the late-added defendant within 90 days of the filing of the first answer naming the late-added defendant as a potential tortfeasor. Morris v. Phillips, — S.W.3d —, 2013 Tenn. App. LEXIS 809 (Tenn. Ct. App. Dec. 17, 2013).

In a case arising from on-the-job injuries in which two defendants, who were added in an amended complaint, moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the plaintiff's claims against them were time-barred, he could not rely on T.C.A.§ 20-1-119 to save his claims against them, and the discovery rule did not apply. Wagner v. Int'l Auto. Components Grp. N. Am., Inc., — F. Supp. 2d —,  2015 U.S. Dist. LEXIS 123716 (M.D. Tenn. Sept. 16, 2015).

Alleged injured party's claim against a city was time-barred because, inter alia, the party's notice of claim against the State was not an “original complaint” under T.C.A. § 20-1-119 that triggered a 90-day period within which to name the city as a party, after the State alleged the city's comparative fault for the party's injury, as the notice and a complaint served different functions, so the time within which to sue the city was not extended. Moreno v. City of Clarksville, 479 S.W.3d 795, 2015 Tenn. LEXIS 741 (Tenn. Sept. 18, 2015).

9. Amended Complaint.

In all situations other than the one-time right to amend before a responsive pleading is served, the right to amend under Tenn. R. Civ. P. 15.01 is governed by the second sentence of the rule, which permits amendments only by written consent of the adverse party or by leave of court, with the understanding that leave is to be freely given when justice so requires; since T.C.A. § 20-1-119 is always invoked by the filing of a responsive pleading, the Tennessee supreme court concludes that its reference to Tenn. R. Civ. P. 15 is a reference specifically to the second sentence of Tenn. R. Civ. P. 15.01 and that a plaintiff's right to amend a complaint to add a defendant in a comparative fault action under T.C.A. § 20-1-119 requires written consent of the adverse parties or leave of court. Jones v. Prof'l Motorcycle Escort Serv., L.L.C., 193 S.W.3d 564, 2006 Tenn. LEXIS 430 (Tenn. 2006).

Claimant's argument that her notice of claim was necessary to preserve her action against the state and must be filed within 90 days under T.C.A. § 9-8-402 was untenable, because the claim was for personal injuries, which was governed by T.C.A. § 28-3-104, and the court had allowed amendments to be made pursuant to T.C.A. § 20-1-119 regardless of whether the other person(s) who might be liable for the claimant's injuries was known to the claimant prior to the filing of the original complaint; the claimant did not allege that her injuries were proximately caused by the Tennessee highway patrolman's negligence, but rather stated that she was providing notice that such a claim could be asserted once more facts pertaining to the causation of the accident and ultimate nature of her injuries were known. Rogers v. State, — S.W.3d —, 2007 Tenn. App. LEXIS 503 (Tenn. Ct. App. Aug. 2, 2007).

Because, in a car owner's answer to a complaint for damages arising out of a car accident between plaintiff and the owner's son, the owner never named her son as a comparative tortfeasor, plaintiff could not add the son as a defendant pursuant to T.C.A. § 20-1-119, and the one-year statute of limitations, T.C.A. § 28-3-104 (a)(1), had expired. Lindsey v. Baker, — S.W.3d —, 2011 Tenn. App. LEXIS 103 (Tenn. Ct. App. Feb. 10, 2011).

Employee who sued a coworker was not entitled to amend the employee's complaint to add the employer as an additional defendant because T.C.A. § 20-1-119 was not triggered by the co-worker's motion to dismiss characterizing the employer as an indispensable party. Johnson v. Trane U.S. Inc., — S.W.3d —, 2013 Tenn. App. LEXIS 537 (Tenn. Ct. App. Aug. 19, 2013).

In a medical malpractice case, a certificate of good faith did not have to be filed with an amended complaint; a claim asserted against a second doctor arose out of the same conduct set forth in the original complaint. The allegations of comparative fault related back to the date of the original complaint, which was prior to the effective date of T.C.A. § 29-26-122. Rogers v. Jackson, — S.W.3d —, 2014 Tenn. App. LEXIS 293 (Tenn. Ct. App. May 19, 2014), appeal denied, Rogers ex rel. Rogers v. Jackson, — S.W.3d —, 2014 Tenn. LEXIS 904 (Tenn. Oct. 22, 2014).

When, in a health care liability suit, physicians sued in one county raised the comparative negligence of a patient's primary physician, who resided in another county, and the patient filed an amended complaint adding the primary physician, under T.C.A. § 20-1-119 and Tenn. R. Civ. P. 15.01, venue was properly transferred to the county where the patient and primary physician resided, in which the cause of action also arose, because the patient's amended complaint, rather than being an amendment to the original complaint, completely superseded the original complaint such that the court had to evaluate venue based on the parties in the amended complaint. Barrett v. Chesney, — S.W.3d —, 2015 Tenn. App. LEXIS 790 (Tenn. Ct. App. Sept. 28, 2015), review denied and ordered not published, — S.W.3d —, 2016 Tenn. LEXIS 274 (Tenn. Apr. 7, 2016).

Circuit court properly granted a hospital's motion to dismiss an administrator's action for health care liability for failure to attach a certificate of good faith because, while the administrator attached the original certificate of good faith to the amended complaint, he failed to file a new certificate when a nursing home asserted a comparative fault affirmative defense against the hospital. Peatross v. Graceland Nursing Ctr., LLC, — S.W.3d —, 2016 Tenn. App. LEXIS 686 (Tenn. Ct. App. Sept. 20, 2016), appeal denied, Peatross v. Graceland Nursing Ctr., LLC, — S.W.3d —, 2017 Tenn. LEXIS 37 (Tenn. Jan. 18, 2017).

Insurer's property damage claim was appropriately filed within the three-year statute of limitations applicable to private defendants, and the original defendant manufacturer thereafter filed an answer raising the comparative fault of the city, and thus the insurer was afforded a 90-day grace period in which to file an amended complaint naming the city, despite the fact that the one-year statute of limitations applicable to the city under the Governmental Tort Liability Act had lapsed. Nationwide Mut. Fire Ins. Co. v. Memphis Light, Gas And Water, — S.W.3d —, 2018 Tenn. App. LEXIS 722 (Tenn. Ct. App. Dec. 13, 2018).

10. Amended Answer.

In a consolidated personal injury action, the trial court erred in denying Tenn. R. Civ. P. 15.01 motions by a private club and a surgeon to amend their answers to assert comparative fault claims against a nursing home because the doctrine of joint and several liability no longer applied to circumstances in which separate, independent negligent acts of more than one tortfeasor combined to cause a single, indivisible injury. Banks v. Elks Club Pride of Tenn. 1102, 301 S.W.3d 214, 2010 Tenn. LEXIS 5 (Tenn. Jan. 13, 2010).

11. Statute of Repose.

Summary judgment in favor of defendants based upon the construction statute of repose, T.C.A. § 28-3-202, was proper, because the injured's minority did not toll the statute, and there existed no question of fact as to the date of substantial completion; T.C.A. § 20-1-119(b) could not operate to extend the statute of repose, and the Tennessee Supreme Court had pronounced that T.C.A. § 28-1-106 could not operate to toll statutes of repose. Etheridge v. YMCA, 391 S.W.3d 541, 2012 Tenn. App. LEXIS 54 (Tenn. Ct. App. Jan. 27, 2012), appeal denied, Etheridge ex rel. Etheridge v. YMCA, — S.W.3d —, 2012 Tenn. LEXIS 425 (Tenn. June 19, 2012).

Chapter 2
Process

Part 1
General Provisions

20-2-101. Summons from general sessions court.

The summons from a court of general sessions shall be substantially the same as the summons from a court of record, but requiring the defendant to appear before the judge on a day fixed, or generally. If no time or place is designated, the officer serving the process shall notify the defendant of the time and place, and make the officer's return accordingly.

Code 1858, § 2817; Shan., § 4522; Code 1932, § 8649; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 20-204; modified.

Cross-References. Summons, Tenn. R. Civ. P. 3, 4.

Textbooks. Tennessee Forms (Robinson, Ramsey and Harwell), No. 1-4-1.

Tennessee Jurisprudence, 1 Tenn. Juris., Amendments,. § 9; 7 Tenn. Juris., Corporations, § 118.

Law Reviews.

Civil Procedure — Rejection of Transient Jurisdiction Over an Unincorporated Association, 16 Mem. St. U.L. Rev. 291 (1986).

Comparative Legislation. Commencement of actions:

Ala.  Code § 6-4-1 et seq.

Ark.  Code § 16-58-101 et seq.

Ga. O.C.G.A. § 9-11-3 et seq.

Ky. R. C. P. 3 et seq.

Miss.  Code Ann. § 13-3-1 et seq.

Mo.  Sup. Ct. R. 53.01, 54.01-54.04, 54.13, 54.16, 54.17, 54.20, 54.22.

N.C. Gen. Stat. § 1A-1.

Va.  Code § 8.01-270 et seq.

NOTES TO DECISIONS

1. Nature of Requirement.

A civil warrant must contain some general and brief statement of plaintiff's cause of action sufficient to give the defendant reasonable notice of the general nature and character of the demand he is called upon to answer. Sanders v. Tomlin, 29 Tenn. App. 574, 198 S.W.2d 817, 1946 Tenn. App. LEXIS 92 (Tenn. Ct. App. 1946).

2. Commencement of Suit.

The issuance of warrant is the commencement of suit under statutes of limitation. Glenn v. Payne, 153 Tenn. 240, 280 S.W. 1019, 1925 Tenn. LEXIS 24 (1926).

3. Validity of Judgment.

Where warrant named two defendants while judgment was against defendant without naming any particular defendant, the judgment was valid only against one served with the process. Sipes v. Sanders, 17 Tenn. App. 162, 66 S.W.2d 261, 1933 Tenn. App. LEXIS 52 (Tenn. Ct. App. 1933).

Where process shows service and judgment was rendered, it is valid although the defendant testified he was never served and knew nothing of the suit. Clevenger v. Rains, 18 Tenn. App. 128, 73 S.W.2d 1114, 1934 Tenn. App. LEXIS 17 (Tenn. Ct. App. 1934).

Collateral References. 47 Am. Jur. 2d Justices of the Peace §§ 50-58.

72 C.J.S. Process § 1.

Service of process via computer or fax. 30 A.L.R.6th 413.

Justices of the peace 80(4).

20-2-102. Security for costs and damages.

The general sessions judge may, and the clerk shall, before issuing the summons or other leading process, require the plaintiff to enter into bond, with sufficient surety, conditioned to prosecute the plaintiff's suit with effect, or to pay such costs and damages as may be awarded against the plaintiff by the court having cognizance thereof, unless the plaintiff sue in forma pauperis.

Code 1858, § 2818 (deriv. Acts 1787, ch. 19, § 1); Shan., § 4523; Code 1932, § 8650; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 20-205.

Cross-References. Actions in forma pauperis, §§ 20-12-12720-12-133.

Appointment of counsel for paupers, § 23-2-101.

Bond on change of venue, § 20-4-207.

Requirement of bond, §§ 20-12-12020-12-126.

Textbooks. Tennessee Jurisprudence, 2 Tenn. Juris., Appeal and Error, § 81.

Law Reviews.

Pleadings, Motions and Pre-Trial Procedure, 4 Mem. St. U.L. Rev. 219.

Cited: In re Barrett, 132 F. 362, 1904 U.S. Dist. LEXIS 133 (D. Tenn. 1904); Kelley v. Byington, 185 Tenn. 421, 206 S.W.2d 409, 1947 Tenn. LEXIS 347 (1947).

NOTES TO DECISIONS

1. Collection of Costs.

Plaintiff, a pauper, was entitled to decree for costs against nonresident principal defendant in proceeding securing land for plaintiff notwithstanding that application was filed with court instead of clerk, and notwithstanding that another of the defendants named in the proceeding had no interest in the land involved, since proceeding was required as the result of misconduct of defendant. Dudley v. Balch, 5 Tenn. 193, 1817 Tenn. LEXIS 91 (1817).

In ejectment suit costs are taxed against lessor of plaintiff if verdict is in favor of defendant and are collected against lessor by ordinary process, and not by attachment. Hopkins v. Godbehire, 10 Tenn. 241, 1828 Tenn. LEXIS 9 (1828).

2. Constitutionality of Private Act.

Private Acts 1947, ch. 148 requiring plaintiffs to pay costs in advance before process issued on complaints filed in court of general sessions for Knox County violated Tenn. Const., art. XI, § 8 since requirement to pay costs in advance was contrary to provisions of general law which only require plaintiff to file security for costs. Kelley v. Byington, 185 Tenn. 421, 206 S.W.2d 409, 1947 Tenn. LEXIS 347 (1947).

20-2-103. Date of process shown — Penalty for violation.

  1. The clerk, general sessions judge or attorney issuing any process shall mark on the process the day on which the process is issued; and the sheriff or other officer into whose hands the process comes to be executed, shall, in like manner, mark on the process the day on which the sheriff or other officer received it.
  2. The penalty for neglect of this requirement shall be a forfeiture of one hundred twenty-five dollars ($125), to be recovered in any court having cognizance thereof, by any persons who shall sue for the penalty, with costs.

Code 1858, § 2819 (deriv. Acts 1794, ch. 1, § 9); Shan., § 4524; Code 1932, § 8651; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 20-206.

Textbooks. Tennessee Jurisprudence, 17 Tenn. Juris., Justices of Peace and General Sessions Courts, § 26; 21 Tenn. Juris., Process, § 12; 22 Tenn. Juris., Sheriffs, § 14.

Cited: Glenn v. Payne, 153 Tenn. 240, 280 S.W. 1019, 1925 Tenn. LEXIS 24 (1926).

NOTES TO DECISIONS

1. Application.

This statute did not require that it should appear on the writ when it was executed. Nelson v. Cummins, 1 Tenn. 436, 1809 Tenn. LEXIS 25 (1809).

In an action against a constable for failure to endorse the date of reception of a writ of replevin issued by a justice of the peace (now general sessions judge), recovery could not be denied on the theory that the statute had no application to such writs. Cherry v. Kennedy, 144 Tenn. 320, 232 S.W. 661, 1921 Tenn. LEXIS 42 (1921).

2. Significance of Date of Issuance.

The date of issuance is important as regards the statute of limitations. Smith v. Kirkwood, 3 Shan. 650 (1875).

3. Proof of Date of Commencing Suit.

Parol evidence is admissible to show when suit really commenced. Smith v. Kirkwood, 3 Shan. 650 (1875).

4. Prerequisite to Recovery.

The purpose of the statute being to give damages to the person injured by the neglect of the sheriff or other officer, where the failure caused no injury, there can be no recovery. Cherry v. Kennedy, 144 Tenn. 320, 232 S.W. 661, 1921 Tenn. LEXIS 42 (1921).

Collateral References. Justices of the peace 80(1).

20-2-104. Issuance of process on Sunday.

  1. Civil process may be issued on Sundays on the application of any party, supported by oath or affirmation, that the defendant is removing or about to remove the defendant's person or property beyond the jurisdiction of the court applied to.
  2. The clerk or general sessions judge shall endorse on the back of the process that it was obtained on the oath of the plaintiff, the plaintiff's agent or attorney, as directed in subsection (a).
  3. It is the duty of the proper officers to execute all such process on Sundays, subject to the same penalties and regulations as in other cases.

Code 1858, §§ 2824-2826 (deriv. Acts 1821, ch. 1, §§ 1-3); Shan., §§ 4529-4531; Code 1932, §§ 8656-8658; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 20-207.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), §§ 126, 129.

Tennessee Jurisprudence, 3 Tenn. Juris., Associations and Clubs, § 6; 23 Tenn. Juris., Sundays and Holidays, § 4.

Law Reviews.

Procedure — Motion to Dismiss in Chancery, 33 Tenn. L. Rev. 245.

Cited: Moss v. State, 131 Tenn. 94, 173 S.W. 859, 1914 Tenn. LEXIS 90, L.R.A. (n.s.) 1915D361 (1914); Jersey Farms Milk Service, Inc. v. Amalgamated Meat Cutters, etc., 297 F. Supp. 1098, 1969 U.S. Dist. LEXIS 9545 (M.D. Tenn. 1969).

20-2-105. Service of process on Sunday on parties leaving jurisdiction.

Sheriffs or constables having process in their hands in civil actions pending in magistrate's court or courts of record, if it appears to their satisfaction that parties to be sued are leaving the county or state, have the right to execute the process on Sunday.

Acts 1885, ch. 53, § 1; Shan., § 4532; Code 1932, § 8659; T.C.A. (orig. ed.), § 20-208.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 126.

Law Reviews.

Procedure — Motion to Dismiss in Chancery, 33 Tenn. L. Rev. 245.

Cited: Moss v. State, 131 Tenn. 94, 173 S.W. 859, 1914 Tenn. LEXIS 90, L.R.A. (n.s.) 1915D361 (1914).

20-2-106. Process on Sunday generally prohibited.

With the exceptions contained in §§ 20-2-104 and 20-2-105, civil process shall not be executed on Sunday.

Code 1858, § 2827 (deriv. Acts 1777 (Nov.), ch. 8, § 6); Acts 1885, ch. 53, § 1; Shan., § 4533; Code 1932, § 8660; T.C.A. (orig. ed.), § 20-209.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 126.

Cited: Moss v. State, 131 Tenn. 94, 173 S.W. 859, 1914 Tenn. LEXIS 90, L.R.A. (n.s.) 1915D361 (1914).

NOTES TO DECISIONS

1. Process Covered.

Search warrants are criminal process issuable on Sunday. Seals v. State, 157 Tenn. 538, 11 S.W.2d 879, 1928 Tenn. LEXIS 218 (1928).

2. Unauthorized Issuance on Sunday — Effect.

The issuance of process in a civil suit on Sunday, without a compliance with the provision authorizing it, is matter in abatement of the process, but does not render the process void. Helm v. Rodgers, 24 Tenn. 105, 1844 Tenn. LEXIS 32 (1844).

3. Averment of Issuance on Sunday.

An averment in a plea that the process issued on the fifteenth day of December, the Sabbath, “as appears by the endorsement thereon,” is a sufficient averment that the process issued on that day. Helm v. Rodgers, 24 Tenn. 105, 1844 Tenn. LEXIS 32 (1844).

The amendment in matter of form averring issuance of process on Sunday, by leave of the circuit court, is not ground of reversal, nor would the refusal to allow such amendment be. Helm v. Rodgers, 24 Tenn. 105, 1844 Tenn. LEXIS 32 (1844).

Collateral References.

Validity of service of summons or complaint on Sunday or holiday. 63 A.L.R.3d 423.

20-2-107. Process in other counties.

Process in local actions may run to any county.

Code 1858, § 2820; Shan., § 4525; Code 1932, § 8652; T.C.A. (orig. ed.), § 20-210.

Textbooks. Tennessee Jurisprudence, 17 Tenn. Juris., Justices of Peace and General Sessions Courts, § 26.

Cited: Bell v. Hosse, 31 F.R.D. 181, 1962 U.S. Dist. LEXIS 5927 (M.D. Tenn. 1962).

20-2-108. Counterpart summons.

  1. Where there are two (2) or more defendants in any suit in courts of law or equity or before judges of the courts of general sessions, the plaintiff may cause a counterpart summons or subpoena to be issued to any county where any of the defendants is most likely to be found, the fact that the counterpart process is issued in the same suit being noted on each process, which, when returned, shall be docketed as if only one (1) process had issued.
  2. If the defendants are not served, the same proceedings shall be had as in cases of other similar process not executed.
  3. The counterpart, when issued from a judge of the court of general sessions, shall be returned within thirty (30) days.

Code 1858, §§ 2821, 2822 (deriv. Acts 1820, ch. 25, § 3); Shan., §§ 4526, 4527; Code 1932, §§ 8653, 8654; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 20-211.

Compiler's Notes. This section may be affected by Tenn. R. Civ. P. 4.01, summons and issuance thereof, except as to general sessions courts.

Cross-References. Summons and issuance thereof, Tenn. R. Civ. P. 4.01.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), §§ 127, 129.

Tennessee Jurisprudence, 2 Tenn. Juris., Appeal and Error, § 84; 21 Tenn. Juris., Process, § 2; 24 Tenn. Juris., Venue, § 3.

Law Reviews.

Civil Procedure and Evidence — Tennessee Survey 1970 (Jerry J. Phillips), 38 Tenn. L. Rev. 127.

Cited: Southern Paving Const. Co. v. Knoxville, 245 F. 421, 1917 U.S. App. LEXIS 1503 (6th Cir. Tenn. 1917); Pinkerton v. Fox, 23 Tenn. App. 159, 129 S.W.2d 514, 1939 Tenn. App. LEXIS 22 (Tenn. Ct. App. 1939); Stevens v. Linton, 190 Tenn. 351, 229 S.W.2d 510, 1950 Tenn. LEXIS 492 (1950); Keeble v. Loudon Utilities, 212 Tenn. 483, 370 S.W.2d 531, 1963 Tenn. LEXIS 442 (1963); Commercial Truck & Trailer Sales, Inc. v. McCampbell, 580 S.W.2d 765, 1979 Tenn. LEXIS 427 (Tenn. 1979).

NOTES TO DECISIONS

1. Application.

This section has no application to local actions brought in the wrong county. Nashville v. Webb, 114 Tenn. 432, 85 S.W. 404, 1904 Tenn. LEXIS 97 (1905), superseded by statute as stated in, Five Star Express v. Davis, 866 S.W.2d 944, 1993 Tenn. LEXIS 413 (Tenn. 1993).

The privilege of issuing a counterpart summons to a county other than the county of suit must be based upon a proper joinder of defendants who are (1) jointly liable, or (2) severally liable upon the same instrument or judgment, and may not be based upon a misjoinder of parties. Rooney v. Callins, 62 Tenn. App. 105, 459 S.W.2d 430, 1970 Tenn. App. LEXIS 255 (Tenn. Ct. App. 1970).

2. Real Defendant — Service in County.

The statute is imperative in its terms and only authorizes issuance of counterpart when suit has been instituted against a real, and not nominal, defendant. Yancey v. Marriott, Frisby & Co., 33 Tenn. 28, 1853 Tenn. LEXIS 2 (1853).

In transitory actions it is the service of the writ or summons in the county where the suit is issued which gives the court jurisdiction of the person. It is a good plea in abatement by the defendants by counterpart that the other defendant has no interest in the cause of action, and was fraudulently and solely made a defendant in order to draw the cause of action within the jurisdiction of the court of the plaintiff's county. Yancey v. Marriott, Frisby & Co., 33 Tenn. 28, 1853 Tenn. LEXIS 2 (1853); Achy v. Holland, 76 Tenn. 510, 1881 Tenn. LEXIS 39 (1881).

A party served in a county other than the one of suit, there being no service on another defendant there resident, may raise the lack of jurisdiction of his person by plea in abatement. Citizens' Bank & Trust Co. Bayles, 153 Tenn. 40, 281 S.W. 932, 1925 Tenn. LEXIS 4 (1926).

A party against whom the law affords no cause of action is not a material defendant. Western Auto. Casualty Co. v. Burnell, 17 Tenn. App. 687, 71 S.W.2d 474, 1933 Tenn. App. LEXIS 101 (Tenn. Ct. App. 1933).

If the defendant residing in the county where the action is commenced is not a material defendant, then the court in that county where the action is commenced is without jurisdiction over another defendant brought in by counterpart process. Isbell v. Strider, 192 Tenn. 685, 241 S.W.2d 828, 1951 Tenn. LEXIS 316 (1951).

A real, bona fide defendant must be duly served in the county where the action is commenced. Rooney v. Callins, 62 Tenn. App. 105, 459 S.W.2d 430, 1970 Tenn. App. LEXIS 255 (Tenn. Ct. App. 1970).

Where a transitory action is filed in a county other than the one where the cause of action arose and the service of original process is on a party that is not a real and material defendant, venue does not lie in the county in which the action was commenced. The court does not acquire jurisdiction over the person of defendants summoned by counterpart process in the face of a motion to dismiss the action for lack of venue. Romines v. K & S Engineering & Contracting Co., 556 S.W.2d 85, 1977 Tenn. LEXIS 610 (Tenn. 1977).

3. —Prima Facie Jurisdiction — Establishment.

Where summons for two defendants was issued to sheriff of Wilson County and duly served in that county upon one of the defendants, and counterpart summons was issued to Washington County and served there upon other defendant, this was prima facie sufficient to give circuit court of Wilson County jurisdiction over both defendants. Curtis v. Kyte, 21 Tenn. App. 115, 106 S.W.2d 234, 1937 Tenn. App. LEXIS 13 (Tenn. Ct. App. 1937).

4. —Order of Service.

The original process must be served on a real and material defendant in the county where issued before a counterpart can be issued to other counties. Western Auto. Casualty Co. v. Burnell, 17 Tenn. App. 687, 71 S.W.2d 474, 1933 Tenn. App. LEXIS 101 (Tenn. Ct. App. 1933); Chickasaw Wood Products Co. v. Lane, 22 Tenn. App. 596, 125 S.W.2d 164, 1938 Tenn. App. LEXIS 61 (Tenn. Ct. App. 1938).

5. —Service on Defendant in County Not Shown — Effect.

A counterpart warrant issued to another county, without showing service on the resident defendant, is informal, but the judgment will be valid, and its execution will not be enjoined at the instance of the nonresident defendants brought in by the counterpart process. White v. Lea, 77 Tenn. 449, 1882 Tenn. LEXIS 81 (1882).

6. —Service on Nonresident Temporarily in County.

It is sufficient authority to issue a counterpart process to other counties, that the original process has been served on a material defendant found temporarily in the county where the suit is instituted, if he was in such county when the suit was instituted. Turley v. Hornsby, 71 Tenn. 264, 1879 Tenn. LEXIS 72 (1879).

7. —Action under Workers' Compensation Law.

Under the Workers' Compensation Law the insurer is a “material defendant” upon whom service of the original summons may be had with counterpart against the employer. Flowers v. Aetna Casualty & Surety Co., 186 Tenn. 603, 212 S.W.2d 595, 1948 Tenn. LEXIS 587 (1948), overruled in part, Five Star Express v. Davis, 866 S.W.2d 944, 1993 Tenn. LEXIS 413 (Tenn. 1993).

8. —Interpleader.

In a creditor's action in attachment against his debtor and an attachment defendant who filed a cross bill as an interpleader, making various other persons defendants as having claimed an interest in the attached fund and paying the fund into court, the jurisdiction of the interpleader lies in the county of a defendant's residence, the debtor and other defendants to be served by counterpart summons in the county of their residences. John Weis, Inc. v. Reed, 22 Tenn. App. 90, 118 S.W.2d 677, 1938 Tenn. App. LEXIS 9 (Tenn. Ct. App. 1938).

9. Good Faith and Lack of Collusion — Requirement.

Before summons will be issued to another county, the court will look through the form to the substance of the transaction, to see that the party is a material defendant, and that a judgment is sought against him in good faith. Chickasaw Wood Products Co. v. Lane, 22 Tenn. App. 596, 125 S.W.2d 164, 1938 Tenn. App. LEXIS 61 (Tenn. Ct. App. 1938).

The true test for determining whether summons may issue to another county is whether the defendant served in the county where the suit is brought is a bona fide defendant to the action and whether his interest in the result of the action is in any manner adverse to that of the plaintiff with respect to the cause of action against the other defendants. Chickasaw Wood Products Co. v. Lane, 22 Tenn. App. 596, 125 S.W.2d 164, 1938 Tenn. App. LEXIS 61 (Tenn. Ct. App. 1938); Moore v. Gore, 191 Tenn. 14, 231 S.W.2d 361, 1950 Tenn. LEXIS 541 (1950).

The fact that the name of resident defendant's attorney, appears on the back of plaintiff's declaration and on the back of the summons as attorney for the plaintiff, is insufficient evidence to establish collusion. Chickasaw Wood Products Co. v. Lane, 22 Tenn. App. 596, 125 S.W.2d 164, 1938 Tenn. App. LEXIS 61 (Tenn. Ct. App. 1938).

The ultimate test in determining the validity of counterpart service under this section is the good faith of the plaintiff in joining in his suit a resident defendant having a real and antagonistic interest in the subject matter of the suit. Taylor v. McCool, 183 Tenn. 1, 189 S.W.2d 817, 1945 Tenn. LEXIS 267 (1945).

A party sued by original process need not necessarily be shown to be liable, but he must be sued in good faith, and a plea to the effect that such a party is sued solely to defeat one jurisdiction of its right, and confer it on another, is sufficient to abate the action if clearly sustained by proof. Moore v. Gore, 191 Tenn. 14, 231 S.W.2d 361, 1950 Tenn. LEXIS 541 (1950).

10. Dismissal as to Defendant Served in County.

Where, in such case, before a trial, the plaintiff dismisses his suit as against the original resident defendant, it is a matter of abatement, and may be taken advantage of, though occurring after a plea in bar, by a plea in abatement, but not by motion to dismiss. Yancey v. Marriott, Frisby & Co., 33 Tenn. 28, 1853 Tenn. LEXIS 2 (1853); Turley v. Hornsby, 71 Tenn. 264, 1879 Tenn. LEXIS 72 (1879); Achy v. Holland, 76 Tenn. 510, 1881 Tenn. LEXIS 39 (1881).

Where plaintiff prior to suit for damages arising out of horse trade induced a nonresident who had acted as intermediary to come to Tennessee for the avowed purpose of discussing horse trade but for the real purpose of obtaining service on the intermediary in order to sue other party in the trade who was a resident of a county other than that in which plaintiff lived and Court of Appeals on appeal from judgment against both defendants dismissed suit as to intermediary on the ground that he had no real or antagonistic interest in subject matter of suit the Supreme Court dismissed suit against other defendant. Taylor v. McCool, 183 Tenn. 1, 189 S.W.2d 817, 1945 Tenn. LEXIS 267 (1945).

If action is dismissed as to sole defendant located in county where suit is filed the court loses jurisdiction of proceeding as to defendants located outside county. Isbell v. Strider, 192 Tenn. 685, 241 S.W.2d 828, 1951 Tenn. LEXIS 316 (1951).

Where plaintiff's action against a resident defendant cannot survive motions made preliminary to trial, the resident defendant is not a real and material defendant for the purpose of locating venue or the acquisition of jurisdiction over nonresident defendants by counterpart process. Romines v. K & S Engineering & Contracting Co., 556 S.W.2d 85, 1977 Tenn. LEXIS 610 (Tenn. 1977).

11. Judgment.

In action brought in county lacking jurisdiction, the proceedings and judgment are void, where question of venue was raised. Western Auto. Casualty Co. v. Burnell, 17 Tenn. App. 687, 71 S.W.2d 474, 1933 Tenn. App. LEXIS 101 (Tenn. Ct. App. 1933).

12. Misjoinder of Parties.

Suit by business brokers against all stockholders of corporation to recover commissions allegedly due on sale of all capital stock of the corporation was based on separate asserted rights against each stockholder for separate commissions and amounted to misjoinder of parties and actions, and would abate as to stockholders served by counterpart summons after suit was commenced in county where a single stockholder resided. Rooney v. Callins, 62 Tenn. App. 105, 459 S.W.2d 430, 1970 Tenn. App. LEXIS 255 (Tenn. Ct. App. 1970).

20-2-109. Service on joint obligor on negotiable paper.

In joint actions on negotiable paper, service of a counterpart writ on the drawer or maker shall not be sufficient service to hold the drawer or maker to answer the action, unless the original writ was executed on a joint drawer or maker.

Code 1858, § 2823 (deriv. Acts 1827, ch. 74, § 2); Shan., § 4528; Code 1932, § 8655; T.C.A. (orig. ed.), § 20-212.

Cross-References. Several liability on joint obligations, §§ 20-1-107, 47-3-414.

Summons and issuance thereof, Tenn. R. Civil P. 4.01.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), §§ 121, 127.

NOTES TO DECISIONS

1. Purpose of Statute.

Under the previous statutes, there was an evil practice of endorsing bills or notes to some one where it was desired to bring the suit, convenient to the holder, and by the use of the counterpart against the maker to draw him to that jurisdiction, which in litigated cases was oppressive, and this statute was passed to remedy this situation. Bank of Tennessee v. Anderson, McDermot & Cobb, 35 Tenn. 669, 1856 Tenn. LEXIS 40 (1856).

2. Counterpart against Drawer.

A suit against the endorsers of a note is a transitory action, and may be brought in any county where an endorser may be found and served with process when the suit was commenced, and a counterpart may then be issued to another county to be served on the other endorsers, but not on the maker. Turley v. Hornsby, 71 Tenn. 264, 1879 Tenn. LEXIS 72 (1879).

3. Counterpart against Maker.

If the original writ was served on an endorser, the suit may abate as to the maker, and proceed to judgment as against the endorser. Bank of Tennessee v. Anderson, McDermot & Cobb, 35 Tenn. 669, 1856 Tenn. LEXIS 40 (1856); Turley v. Hornsby, 71 Tenn. 264, 1879 Tenn. LEXIS 72 (1879).

20-2-110. [Repealed.]

Compiler's Notes. Former § 20-2-110 (Code 1858, § 2828 (deriv. Acts 1835-1836, ch. 19, § 13); Shan., § 4534; Code 1932, § 8661; Acts 1975, ch. 96, § 1; T.C.A. (orig. ed.), § 20-213), concerning tests of process, was repealed by Acts 1985, ch. 538, § 1.

20-2-111. Returns made with ink — Penalty for violation.

  1. Sheriffs, constables and all officers are required to make their returns upon all processes issued to them with pen and ink or some other nonerasable material or fluid; but the failure of the officer to make the officer's return as required shall in no case vitiate the return.
  2. Any officer violating this section commits a Class A misdemeanor, and is further liable in damages to any person or persons aggrieved by the violation.

Acts 1889, ch. 51, §§ 1, 2; Shan., §§ 4537, 4538; mod. Code 1932, §§ 8664, 8665; T.C.A. (orig. ed.), § 20-216; Acts 1989, ch. 591, §§ 1, 6.

Code Commission Notes.

The misdemeanor in this section has been designated as a Class A misdemeanor by authority of § 40-35-110, which provides that an offense designated a misdemeanor without specification as to category is a Class A misdemeanor. See also § 39-11-114.

Cross-References. Penalty for Class A misdemeanor, § 40-35-111.

Powers of attorney to serve subpoenas, § 23-2-105.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 23.13.

Collateral References.

Civil liability of one making false or fraudulent return of process. 31 A.L.R.3d 1393.

20-2-112. Wrongful death action by other than personal representative pending — Service in civil action against estate.

  1. Where a wrongful death action has been instituted by any person other than an executor, executrix, administrator or administratrix of a decedent's estate, the estate may be made a party defendant to any civil action arising out of the same facts, happenings, or circumstances otherwise properly brought by serving process on the person instituting the original wrongful death action.
  2. If, after a decedent's estate is made a party defendant as provided in subsection (a), an executor, executrix, administrator or administratrix of the decedent's estate is thereafter appointed, the person who instituted the original wrongful death action shall notify the executor, executrix, administrator or administratrix of the decedent's estate in writing of all actions heretofore instituted against the decedent's estate. The failure of the person to notify the executor, executrix, administrator or administratrix of the decedent's estate, as provided in this subsection (b), may render the person liable for all resultant damages.
  3. Any individual served with process under this section shall notify any person or entity charged with the responsibility of defending the action to which the subject estate has been made a defendant. The notice shall be in writing.

Acts 1968, ch. 552, §§ 1, 2; T.C.A., § 20-242.

Law Reviews.

Recent Developments in Tennessee and Federal Procedure (Donald F. Paine), 36 Tenn. L. Rev. 276.

Cited: Goss v. Hutchins, 751 S.W.2d 821, 1988 Tenn. LEXIS 67 (Tenn. 1988).

20-2-113. Long-arm statute — Service upon person in foreign country.

  1. If service is to be effected upon a party in a foreign country, service of the summons and complaint may be made:
    1. In the manner prescribed by the law of the foreign country for service in that country in an action in any of its courts of general jurisdiction;
    2. As directed by the foreign authority in response to a letter rogatory, when service in either case is reasonably calculated to give actual notice;
    3. Upon an individual, by delivery to the individual personally; and upon a corporation, partnership or association, by delivery to an officer or a managing or general agent;
    4. By any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the party to be served; or
    5. As directed by order of the court.
  2. Service under subdivision (a)(3) or (a)(5) may be made by any person who is not a party and is not less than twenty-one (21) years of age, anyone duly authorized to serve summons by the law of the country where service is to be made or anyone designated by order of the court or the foreign court. On request, the clerk shall deliver the summons to the plaintiff for transmission to the person or the foreign court or officer who will make the service. Proof of service may be made as prescribed in Tenn. R. Civ. P. 4, by order of the court or by the law of the foreign country. Proof of service by mail shall include an affidavit or certificate of addressing and mailing by the clerk of court.

Acts 1992, ch. 679, § 1.

Law Reviews.

Service of Process Upon Foreign Defendants Under the Hague Convention (Michael L. Silhol) 28 No. 5 Tenn. B.J. 16 (1992).

Part 2
Long-Arm Statutes

20-2-201. Foreign corporations subject to actions.

  1. Any corporation claiming existence under the laws of the United States or any other state or of any country foreign to the United States, or any business trust found doing business in this state, shall be subject to suit here to the same extent that corporations of this state are by the laws of this state liable to be sued, so far as relates to any transaction had, in whole or in part, within this state or any cause of action arising here, but not otherwise.
  2. A corporation or trust having any transaction with persons or having any transaction concerning any property situated in this state, through any agency whatever acting for it within the state, shall be held to be doing business here within the meaning of this section.

Acts 1887, ch. 226, §§ 1, 2; Shan., §§ 4543, 4544; mod. Code 1932, §§ 8676, 8677; T.C.A. (orig. ed.), § 20-220.

Cross-References. Corporations, registered agents and service of process, §§ 48-25-10748-25-110.

Nonprofit corporations, office and agent, title 48, ch. 55.

Nonprofit foreign corporations, title 48, ch. 65.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 132.

Tennessee Criminal Practice and Procedure (Raybin), § 1.22.

Tennessee Jurisprudence, 7 Tenn. Juris., Corporations, §§ 111, 112, 118, 121; 17 Tenn. Juris., Jurisdiction, §§ 5, 13; 21 Tenn. Juris., Process, §§ 8, 9.

Law Reviews.

A Tale of Two Jurisdictions, 68 Vand. L. Rev. 501 (2015).

Aligning Law and Forum: The Home Court Advantage, 81 Tenn. L. Rev. 1 (2013).

Constitutional Law — Personal Jurisdiction — A State's Ability to Exercise Jurisdiction over a Foreign Manufacturer, 81 Tenn. L. Rev. 339 (2014).

Civil Procedure — Long Arm Statute — Davenport v. State Farm Mut. Auto. Ins. Co.: Has Tennessee Fully Embraced the “Minimum Contacts” Test?, 19 Mem. St. U.L. Rev. 117 (1989).

Civil Procedure — The Drafting of Legal Documents Governing the Sale of Real Property Within the Forum as a Basis for the Exercise of Long-Arm In Personam Jurisdiction, 15 Mem. St. U.L. Rev. 667 (1985).

Federal Civil Procedure — Personal Jurisdiction — General Jurisdiction Over Foreign Corporations Based Upon Domestic Subsidiary Activity Within The Forum State, 82 Tenn. L. Rev. 461 (2015).

The Future of General Jurisdiction in Tennessee, 27 U. Mem. L. Rev. 559 (1997).

The Long-Arm Wrestle: Personal Jurisdiction in Tennessee (Steven E. Winn), 56 Tenn. L. Rev. 557 (1989).

Cited: Howell v. Shepherd, 29 Tenn. App. 375, 196 S.W.2d 849, 1945 Tenn. App. LEXIS 116 (Tenn. Ct. App. 1945); Atchison, T. & S. F. R. Co. v. Ortiz, 50 Tenn. App. 317, 361 S.W.2d 113, 1962 Tenn. App. LEXIS 152 (Tenn. Ct. App. 1962); Temco, Inc. v. General Screw Products, Inc., 261 F. Supp. 793, 1966 U.S. Dist. LEXIS 7977 (M.D. Tenn. 1966); Chambliss v. Coca-Cola Bottling Corp., 274 F. Supp. 401, 1967 U.S. Dist. LEXIS 11090 (E.D. Tenn. 1967); Southern Machine Co. v. Mohasco Industries, Inc., 401 F.2d 374, 1968 U.S. App. LEXIS 5493 (6th Cir. Tenn. 1968); Paulk v. Paulk, 656 S.W.2d 34, 1983 Tenn. App. LEXIS 696 (Tenn. Ct. App. 1983); Four Seasons Gardening & Landscaping, Inc. v. Crouch, 688 S.W.2d 439, 1984 Tenn. App. LEXIS 3449 (Tenn. Ct. App. 1984); Walker v. Nationwide Ins. Co., 813 S.W.2d 135, 1990 Tenn. App. LEXIS 766 (Tenn. Ct. App. 1990); Southern Sys. v. Torrid Oven Ltd., 58 F. Supp. 2d 843, 1999 U.S. Dist. LEXIS 16913 (W.D. Tenn. 1999); Lamb v. Megaflight, Inc., 26 S.W.3d 627, 2000 Tenn. App. LEXIS 82 (Tenn. Ct. App. 2000).

NOTES TO DECISIONS

1. Constitutionality.

This section is not violative of U.S. Const. art. 5 or U.S. Const. amend. 14 Connecticut Mut. L. Ins. Co. v. Spratley, 99 Tenn. 322, 42 S.W. 145, 1897 Tenn. LEXIS 35, 44 L.R.A. 442 (1897), aff'd, Connecticut Mut. Life Ins. Co. v. Spratley, 172 U.S. 602, 19 S. Ct. 308, 43 L. Ed. 569, 1899 U.S. LEXIS 1400 (1899).

The Tennessee long-arm statute extends the jurisdiction of Tennessee courts to the full extent of due process. United States Fidelity & Guaranty Co. v. Mayberry, 789 F. Supp. 901, 1992 U.S. Dist. LEXIS 5648 (E.D. Tenn. 1992).

2. Operation and Scope.

This statute compiled is an enlargement, and not a limitation, of the preexisting law as to service of process against corporations, and does not, by implication, repeal or modify the preexisting law on that subject; and, therefore, does not apply to a nonresident corporation having a local office and resident agent in the state and already subject to suit and service of process under the preexisting law, but only to such foreign corporations as engage in business in the state, without such office or agent. Cumberland Tel. & Tel. Co. v. Turner, 88 Tenn. 265, 12 S.W. 544, 1889 Tenn. LEXIS 45 (1889); Connecticut Mut. L. Ins. Co. v. Spratley, 99 Tenn. 322, 42 S.W. 145, 1897 Tenn. LEXIS 35, 44 L.R.A. 442 (1897), aff'd, Connecticut Mut. Life Ins. Co. v. Spratley, 172 U.S. 602, 19 S. Ct. 308, 43 L. Ed. 569, 1899 U.S. LEXIS 1400 (1899); Turcott v. Yazoo & M. V. R. Co., 101 Tenn. 102, 45 S.W. 1067, 1898 Tenn. LEXIS 37, 70 Am. St. Rep. 661, 40 L.R.A. 768 (1898); Guthrie v. Connecticut Indem. Ass'n, 101 Tenn. 643, 49 S.W. 829, 1898 Tenn. LEXIS 115 (1898), superseded by statute as stated in, Algee v. State Farm Gen. Ins. Co., 890 S.W.2d 445, 1994 Tenn. App. LEXIS 373 (Tenn. Ct. App. 1994); Thach v. Continental Travelers' Mut. Acc. Ass'n, 114 Tenn. 271, 87 S.W. 255, 1904 Tenn. LEXIS 87 (1904).

A foreign insurance corporation doing business in this state may be sued, notwithstanding the fact that such corporation had, as a condition precedent to its entering upon the transaction of business in this state, appointed the secretary of state, under an irrevocable power of attorney, as its agent, to receive and accept or acknowledge the service of process for it. Connecticut Mut. L. Ins. Co. v. Spratley, 99 Tenn. 322, 42 S.W. 145, 1897 Tenn. LEXIS 35, 44 L.R.A. 442 (1897), aff'd, Connecticut Mut. Life Ins. Co. v. Spratley, 172 U.S. 602, 19 S. Ct. 308, 43 L. Ed. 569, 1899 U.S. LEXIS 1400 (1899); Atlantic C. L. R. Co. v. Richardson, 121 Tenn. 448, 117 S.W. 496, 1908 Tenn. LEXIS 29 (1908).

This section applies only to corporations doing business in this state. Banks Grocery Co. v. Kelley-Clarke Co., 146 Tenn. 579, 243 S.W. 879, 1922 Tenn. LEXIS 8 (1922); Denson v. Webb, 23 Tenn. App. 599, 136 S.W.2d 59, 1938 Tenn. App. LEXIS 92 (Tenn. Ct. App. 1938).

When the legislature authorized service on associations and corporations with offices in Tennessee, it omitted the limitations contained in this statute. W. D. Lawson & Co. v. Penn Cent. Co., 456 F.2d 419, 1972 U.S. App. LEXIS 11032 (6th Cir. Tenn. 1972).

This section is not an exclusive method of acquiring jurisdiction of foreign corporations as Tenn. R. Civ. P. 4.04(4) of the Rules of Civil Procedure provides an additional means. Gallaher v. Chemical Leaman Tank Lines, Inc., 367 F. Supp. 1063, 1973 U.S. Dist. LEXIS 10476 (E.D. Tenn. 1973).

This statute which provides that foreign corporations are subject to suit within the state to the same extent as domestic corporations was not a substantive bar to a diversity action in federal court between Tennessee residents and an Australian airline for recovery of financial losses and emotional distress allegedly arising out of the actions of the airline's agents outside the United States. Gullett v. Qantas Airways, Ltd., 417 F. Supp. 490, 1975 U.S. Dist. LEXIS 12292 (M.D. Tenn. 1975).

Section 20-2-214(a)(6) does not repeal by implication § 20-2-201. Gillis v. Clark Equipment Co., 579 S.W.2d 869, 1978 Tenn. App. LEXIS 343 (Tenn. Ct. App. 1978), overruled, Davenport v. State Farm Mut. Auto. Ins. Co., 756 S.W.2d 678, 1988 Tenn. LEXIS 160 (Tenn. 1988); P & E Electric, Inc. v. Utility Supply of America, Inc., 655 F. Supp. 89, 1986 U.S. Dist. LEXIS 20610 (M.D. Tenn. 1986).

This section provides no procedural alternative to Tenn. R. Civ. P. 4.04, and the rule provides no substantive alternative to the statute. Gillis v. Clark Equipment Co., 579 S.W.2d 869, 1978 Tenn. App. LEXIS 343 (Tenn. Ct. App. 1978), overruled, Davenport v. State Farm Mut. Auto. Ins. Co., 756 S.W.2d 678, 1988 Tenn. LEXIS 160 (Tenn. 1988).

This section is jurisdictional and imposes a jurisdictional limitation on service of process perfected under procedures contained in Tenn. R. Civ. P. 4.04. Gillis v. Clark Equipment Co., 579 S.W.2d 869, 1978 Tenn. App. LEXIS 343 (Tenn. Ct. App. 1978), overruled, Davenport v. State Farm Mut. Auto. Ins. Co., 756 S.W.2d 678, 1988 Tenn. LEXIS 160 (Tenn. 1988); P & E Electric, Inc. v. Utility Supply of America, Inc., 655 F. Supp. 89, 1986 U.S. Dist. LEXIS 20610 (M.D. Tenn. 1986).

This section is jurisdictional, and therefore a foreign corporation cannot be sued on a claim arising wholly outside of Tennessee and having no connection with Tennessee. Turner v. Nationwide Auto Transporters, Inc., 507 F. Supp. 396, 1980 U.S. Dist. LEXIS 16249 (E.D. Tenn. 1980).

Tennessee long-arm statute is merely a procedural limitation on acquiring jurisdiction over foreign corporations doing business in Tennessee, and not a jurisdictional limitation. Mitchell v. White Motor Credit Corp., 627 F. Supp. 1241, 1986 U.S. Dist. LEXIS 30042 (M.D. Tenn. 1986).

This section is not the exclusive means of acquiring jurisdiction or serving process upon foreign corporations doing business in Tennessee. Mitchell v. White Motor Credit Corp., 627 F. Supp. 1241, 1986 U.S. Dist. LEXIS 30042 (M.D. Tenn. 1986).

A comparison of this section with § 20-2-214 reveals that § 20-2-214(a)(1)-(5) have the same application to the activities of foreign corporations in Tennessee as does this section. Davenport v. State Farm Mut. Auto. Ins. Co., 756 S.W.2d 678, 1988 Tenn. LEXIS 160 (Tenn. 1988), rehearing denied, — S.W.2d —, 1989 Tenn. LEXIS 116 (Tenn. Feb. 27, 1989).

The addition of § 20-2-214(a)(6) resulted in an irreconcilable conflict with the phrase “but not otherwise” which limited the jurisdiction conferred by this section. Davenport v. State Farm Mut. Auto. Ins. Co., 756 S.W.2d 678, 1988 Tenn. LEXIS 160 (Tenn. 1988), rehearing denied, — S.W.2d —, 1989 Tenn. LEXIS 116 (Tenn. Feb. 27, 1989).

In certain circumstances, § 20-2-214, has repealed by implication this section. Davenport v. State Farm Mut. Auto. Ins. Co., 756 S.W.2d 678, 1988 Tenn. LEXIS 160 (Tenn. 1988), rehearing denied, — S.W.2d —, 1989 Tenn. LEXIS 116 (Tenn. Feb. 27, 1989).

This section does not apply to foreign corporations that have qualified with the secretary of state and appointed a registered agent for service of process in this state. Davenport v. State Farm Mut. Auto. Ins. Co., 756 S.W.2d 678, 1988 Tenn. LEXIS 160 (Tenn. 1988), rehearing denied, — S.W.2d —, 1989 Tenn. LEXIS 116 (Tenn. Feb. 27, 1989).

This section applies only to foreign corporations that are found to be doing business in Tennessee but have not qualified or appointed an agent for service of process in this state. Davenport v. State Farm Mut. Auto. Ins. Co., 756 S.W.2d 678, 1988 Tenn. LEXIS 160 (Tenn. 1988), rehearing denied, — S.W.2d —, 1989 Tenn. LEXIS 116 (Tenn. Feb. 27, 1989).

Cases holding that this section limits in personam jurisdiction of foreign corporations qualified to do business and having a duly appointed agent in this state to causes of action arising in this state and transactions had, in whole or in part, within this state are overruled. Davenport v. State Farm Mut. Auto. Ins. Co., 756 S.W.2d 678, 1988 Tenn. LEXIS 160 (Tenn. 1988), rehearing denied, — S.W.2d —, 1989 Tenn. LEXIS 116 (Tenn. Feb. 27, 1989).

3. Doing Business in State.

The term or phrase “doing business” does not have and cannot have a uniform and unvarying meaning, but is governed largely by the connection and in view of the object of the statute. There is no room for speculation as to the sense in which the terms “doing business in this state” are used in the statute; this section defines those terms. State v. Connecticut Mut. Life Ins. Co., 106 Tenn. 282, 61 S.W. 75, 1900 Tenn. LEXIS 163 (1901); Atlantic C. L. R. Co. v. Richardson, 121 Tenn. 448, 117 S.W. 496, 1908 Tenn. LEXIS 29 (1908).

In order to subject a foreign corporation to a suit in this state, the foreign corporation must either be engaged in business in this state, or have an office or agents in this state who are the agents in the sense that they are operating and conducting the business of the foreign corporation in this state. Denson v. Webb, 23 Tenn. App. 599, 136 S.W.2d 59, 1938 Tenn. App. LEXIS 92 (Tenn. Ct. App. 1938).

Where controlling stipulation of facts was not sufficient to establish whether there was a contract for personal services in aid of one of foreign corporation's brokers within the county, determination could not be made as to whether alleged contract related to any transactions had in whole or part within the state. Tucker v. International Salt Co., 209 Tenn. 95, 349 S.W.2d 541, 1961 Tenn. LEXIS 351 (1961).

Charges in complaint of alleged violation of the Securities Exchange Act merit no consideration on appeal, having been given none by either the parties or the judge in the district court. Smartt v. Coca-Cola Bottling Corp., 318 F.2d 447, 1963 U.S. App. LEXIS 4940 (6th Cir. Tenn. 1963).

Factors to be considered in determining whether or not a foreign corporation has so activated itself in the state as to be subject to jurisdiction of the state's courts are: (1) The nature and character of the business; (2) The number and type of activities within the forum; (3) Whether such activities give rise to a cause of action; (4) Whether or not the forum has some special interest in granting relief; and (5) The relative convenience of the parties. Robinson v. L-Cart, Inc., 54 Tenn. App. 298, 390 S.W.2d 689, 1964 Tenn. App. LEXIS 154 (Tenn. Ct. App. 1964), superseded by statute as stated in, Stidham v. Fickle Heirs, 643 S.W.2d 324, 1982 Tenn. LEXIS 369 (Tenn. 1982).

4. —Nature of Question.

Whether a foreign corporation is doing business in a state, so as to be suitable therein, or so as to render it subject to the service of process, is a federal question. Banks Grocery Co. v. Kelley-Clarke Co., 146 Tenn. 579, 243 S.W. 879, 1922 Tenn. LEXIS 8 (1922).

5. —Prerequisite to Suit.

As a general proposition, a corporation cannot be sued in any state other than that of its origin, unless it is doing business in such other state, and no state has the power to authorize suits against foreign corporations, or the service of process upon them, unless they are doing business within the state. Banks Grocery Co. v. Kelley-Clarke Co., 146 Tenn. 579, 243 S.W. 879, 1922 Tenn. LEXIS 8 (1922).

A corporation which has no facilities within Tennessee and has not designated an agent on whom process against it may be served will be deemed to have constituted the secretary of state as its agent for such service if it has made use of the privilege to do business within Tennessee after proper domestication; however, any such transactions complained of must have arisen within this state, and attendant circumstances must have localized the defendant's activities and evidenced its presence in the state. Trussell v. Bear Mfg. Co., 215 F. Supp. 802, 1963 U.S. Dist. LEXIS 6381 (E.D. Tenn. 1963).

6. —Facts Constituting.

A foreign insurance company which had withdrawn from active soliciting in the state but which had policies outstanding from which it collected premiums was “doing business in this state,” so as to authorize the service of process upon its special agent temporarily here for the sole purpose of investigating and compromising the particular claim sued on. Connecticut Mut. L. Ins. Co. v. Spratley, 99 Tenn. 322, 42 S.W. 145, 1897 Tenn. LEXIS 35, 44 L.R.A. 442 (1897), aff'd, Connecticut Mut. Life Ins. Co. v. Spratley, 172 U.S. 602, 19 S. Ct. 308, 43 L. Ed. 569, 1899 U.S. LEXIS 1400 (1899).

That brokers solicited orders for a foreign corporation, which, when received, were transmitted to it in another state for its acceptance, did not constitute the doing of business in the state. Banks Grocery Co. v. Kelley-Clarke Co., 146 Tenn. 579, 243 S.W. 879, 1922 Tenn. LEXIS 8 (1922).

Where foreign corporation sent assistant district superintendent into county in this state, together with corps of salesmen who operated in the county from headquarters, though temporary, set up in the county by the assistant district superintendent, and under his direction and control, jurisdiction over the corporation could be had. Wrought Iron Range Co. v. Devault, 6 Tenn. App. 513, — S.W. —, 1927 Tenn. App. LEXIS 176 (Tenn. Ct. App. 1927).

Minnesota corporation incorporated in Delaware was subject to process served upon the secretary of state in a civil suit for personal injuries from a defect in its product, where it had agents in the state selling to distributors and consumers, settling claims, servicing delinquent accounts, briefing products use and investigating uses, since it was substantially carrying on a business. Radford v. Minnesota Mining & Mfg. Co., 128 F. Supp. 775, 1955 U.S. Dist. LEXIS 3712 (D. Tenn. 1955).

Statute excusing certain corporations from filing their charter with the secretary of state or paying filing fees did not relieve a corporation doing substantial business within a state from being amenable to process served upon the secretary of state in a civil suit for personal injuries from a defect in the corporation's product. Radford v. Minnesota Mining & Mfg. Co., 128 F. Supp. 775, 1955 U.S. Dist. LEXIS 3712 (D. Tenn. 1955).

Alleged tortious conduct on part of defendant corporation does not, in and of itself, constitute doing business and afford basis of jurisdiction under Tennessee law, where the allegations indicated no threatened or actual property damage, and the corporation maintained no office, had no employees, made no sales and had no license to do so, in Tennessee. Smartt v. Coca-Cola Bottling Corp., 318 F.2d 447, 1963 U.S. App. LEXIS 4940 (6th Cir. Tenn. 1963).

Defendant foreign corporation was “doing business within” Tennessee by transacting in a continuous manner a substantial part of its ordinary business, and must be deemed to have constituted the Tennessee secretary of state its agent to receive process in a civil action arising from unauthorized business, wherein the buyer of a defective secondhand wheel balancer, manufactured by corporation, brought action for injury; sale of the balancer and other equipment to Tennessee jobber and sending a representative to meet with jobber's salesmen and supervise installation of the equipment constituted “doing business.” Trussell v. Bear Mfg. Co., 215 F. Supp. 802, 1963 U.S. Dist. LEXIS 6381 (E.D. Tenn. 1963).

Where warranty contracts of foreign corporation were distributed to customers by local dealers who validated such contracts by signing and dating them and dealers accepted checks for mobile homes payable to the foreign corporation, foreign corporation could be sued in Tennessee by service on dealers. Robinson v. L-Cart, Inc., 54 Tenn. App. 298, 390 S.W.2d 689, 1964 Tenn. App. LEXIS 154 (Tenn. Ct. App. 1964), superseded by statute as stated in, Stidham v. Fickle Heirs, 643 S.W.2d 324, 1982 Tenn. LEXIS 369 (Tenn. 1982).

Service of process upon defendants through officials of a local labor union was insufficient where the union pension fund, although an unincorporated association, had not appointed an agent in the state for service of process and plaintiff, who was seeking to recover guaranteed benefits, could have served the process on the secretary of state in accordance with this section. Buck v. Union Trustees of Plumbers & Pipefitters Nat'l Pension Fund etc., 70 F.R.D. 530, 1975 U.S. Dist. LEXIS 14797 (E.D. Tenn. 1975).

7. Public Corporations.

Public corporations whose situs of operation are purely local must be sued at their domicils; however, the T. V. A. has unrestricted power to sue and be sued, and its operating situs includes Tennessee, therefore it may be sued in Tennessee, although it is domiciled in Alabama, and upon removal to federal court, the court acquires jurisdiction through the state court. Tennessee Valley Authority v. Tennessee Electric Power Co., 90 F.2d 885, 1937 U.S. App. LEXIS 3981 (6th Cir. Tenn. 1937), cert. denied, 301 U.S. 710, 57 S. Ct. 945, 81 L. Ed. 1363, 1937 U.S. LEXIS 489 (1937).

When a foreign corporation transacts some substantial part of its ordinary business, continuous in character as distinguished from merely casual or occasional transactions, it is “doing business in this state.” Interstate Amusement Co. v. Albert, 128 Tenn. 417, 161 S.W. 488, 1913 Tenn. LEXIS 59 (1913), aff'd, 239 U.S. 560, 36 S. Ct. 168, 60 L. Ed. 439, 1916 U.S. LEXIS 1931 (1916); Bouldin v. Taylor, 152 Tenn. 97, 275 S.W. 340, 1924 Tenn. LEXIS 107 (1924).

8. Interstate Transactions.

Action on contract made by a foreign corporation in another state is maintainable here, when service is properly had on the corporation. Alwood & Greene v. Buffalo Hardwood Lumber Co., 152 Tenn. 544, 279 S.W. 795, 1925 Tenn. LEXIS 99 (1926).

It is immaterial whether the foreign corporation's business transacted in the state is entirely interstate or not. Alwood & Greene v. Buffalo Hardwood Lumber Co., 152 Tenn. 544, 279 S.W. 795, 1925 Tenn. LEXIS 99 (1926).

Question of whether business activities make a nonresident corporation amenable to process is controlled by the Tennessee statutes and court decisions unless the business is in interstate commerce, in which event the federal decisions will control. Radford v. Minnesota Mining & Mfg. Co., 128 F. Supp. 775, 1955 U.S. Dist. LEXIS 3712 (D. Tenn. 1955).

That a defendant did not perform a physical act within the state of Tennessee is not determinative of his or her or its lack of “minimum contact,” for activities outside the state resulting in consequences within the state may subject those involved in such activities to in personam jurisdiction of the courts of the state. Third Nat'l Bank v. Shearson Equipment Management Corp., 619 F. Supp. 907, 1984 U.S. Dist. LEXIS 16548 (M.D. Tenn. 1984).

9. Claims Arising Out of State.

A foreign corporation doing business in Tennessee cannot be sued in Tennessee on a claim arising wholly outside Tennessee and having no connection with Tennessee. De Laney Furniture Co. v. Magnavox Co. of Tennessee, 222 Tenn. 329, 435 S.W.2d 828, 1968 Tenn. LEXIS 511 (1968), overruled in part, Davenport v. State Farm Mut. Auto. Ins. Co., 756 S.W.2d 678, 1988 Tenn. LEXIS 160 (Tenn. 1988); Williams v. Williams, 621 S.W.2d 567, 1981 Tenn. App. LEXIS 526 (Tenn. Ct. App. 1981), overruled, Davenport v. State Farm Mut. Auto. Ins. Co., 756 S.W.2d 678, 1988 Tenn. LEXIS 160 (Tenn. 1988), overruled in part, Ratledge v. Norfolk S. Ry. Co., 958 F. Supp. 2d 827, 2013 U.S. Dist. LEXIS 104006 (E.D. Tenn. July 25, 2013).

In wrongful death action where defendant was Delaware corporation doing business in Tennessee but with main place of business elsewhere and accident causing death occurred in Kentucky and plaintiff had service of process on statutory agent and on person in charge of defendant's local business office, defendant's motion to dismiss on ground that this section limited service of process to transactions arising within state was denied as this was merely a procedural limitation, and this section and Tenn. R. Civ. P. 4.04(4) are procedural alternatives. Gallaher v. Chemical Leaman Tank Lines, Inc., 367 F. Supp. 1063, 1973 U.S. Dist. LEXIS 10476 (E.D. Tenn. 1973).

10. Contacts Insufficient.

Defendant's contacts in Tennessee were not so continuous and systematic as to justify the exercise of personal jurisdiction. United States Fidelity & Guaranty Co. v. Mayberry, 789 F. Supp. 901, 1992 U.S. Dist. LEXIS 5648 (E.D. Tenn. 1992).

Collateral References. 36 Am. Jur. 2d Foreign Corporations §§ 460-506.

20 C.J.S. Corporations § 1843.

Construction and application, as to isolated acts or transactions, of state statutes or rules of court predicating in personam jurisdiction over nonresidents or foreign corporations upon the doing of an act, or upon doing or transacting business or “any” business, within the state. 27 A.L.R.3d 397.

Execution, outside of forum, of guaranty of obligations under contract to be performed within forum state as conferring jurisdiction over nonresident guarantors under “long-arm” statute or rule of forum. 28 A.L.R.5th 664.

Holding directors', officers', stockholders', or sales meetings or conventions in a state by foreign corporation as doing business or otherwise subjecting it to service of process and suit. 84 A.L.R.2d 412.

In personam jurisdiction over nonresident director of forum corporation under long-arm statutes. 100 A.L.R.3d 1108.

In personam jurisdiction under long-arm statute of nonresident banking institution. 9 A.L.R.4th 661.

Internet web site activities of nonresident person or corporation as conferring personal jurisdiction under long-arm statutes and due process clause. 81 A.L.R.5th 41.

Validity, construction, and application of statute making a foreign corporation subject to action arising out of contract made within the state although such corporation was not doing business therein. 27 A.L.R.3d 397.

What constitutes doing business within state by a foreign magazine, newspaper, or other publishing corporation, for purposes other than taxation. 38 A.L.R.2d 747.

Corporations 662.

20-2-202. Actions against unincorporated associations and nonresident partnerships.

  1. Any unincorporated association or organization, whether resident or nonresident, including nonresident partnerships and nonresident trusts, doing or desiring to do business in this state by performing any of the acts for which it was formed, shall, before any such acts are performed, appoint an agent in this state upon whom all process may be served, and certify to the clerk of the circuit court of each county in which the association or organization desires to perform any of the acts for which it was organized the name and address of the process agent.
    1. If the unincorporated association or organization fails to appoint the process agent pursuant to this section, all process may be served upon the secretary of the state of Tennessee;
    2. Upon such service, the secretary of state, by registered or certified return receipt mail, shall forward a copy of the process to the last known address of the unincorporated association or organization.
  2. Service upon the process agent appointed pursuant to this section, or upon the secretary of state if no process agent is appointed, shall be legal and binding on the association or organization, and any judgment recovered in any action commenced by service of process, as provided in this section, shall be valid and may be collected out of any real or personal property belonging to the association or organization.

Acts 1947, ch. 32, § 1; mod. C. Supp. 1950, § 8679.1 (Williams, §§ 8681.1-8681.3); modified; Acts 1959, ch. 110, § 1; 1963, ch. 254, § 1; T.C.A. (orig. ed.), § 20-223; Acts 1981, ch. 215, § 1.

Cross-References. Actions relating to unincorporated associations, Tenn. R. Civ. P. 23.07.

Certified mail in lieu of registered mail, § 1-3-111.

Service where managing agent or officer found in state, Tenn. R. Civ. P. 4.04.

Textbooks. Tennessee Jurisprudence, 3 Tenn. Juris., Associations and Clubs, § 6; 7 Tenn. Juris., Corporations, § 118; 20 Tenn. Juris., Partnership, § 52; 21 Tenn. Juris., Process, §§ 9, 14; 24 Tenn. Juris., Venue, § 4.

Law Reviews.

Partnerships — Conflict of Laws — Legal Entity Concept, 27 Tenn. L. Rev. 304.

The Future of General Jurisdiction in Tennessee, 27 U. Mem. L. Rev. 559 (1997).

Cited: American Federation of Musicians v. Stein, 213 F.2d 679, 1954 U.S. App. LEXIS 3801 (6th Cir. Tenn. 1954); Martin v. Dealers Transport Co., 48 Tenn. App. 1, 342 S.W.2d 245, 1960 Tenn. App. LEXIS 104 (Tenn. Ct. App. 1960); W. D. Lawson & Co. v. Penn Cent. Co., 456 F.2d 419, 1972 U.S. App. LEXIS 11032 (6th Cir. Tenn. 1972).

NOTES TO DECISIONS

1. Constitutionality.

As applied to a nonresident association, this section does not infringe upon the due process clause of U.S. Const. amend. 14. McDaniel v. Textile Workers Union, 36 Tenn. App. 236, 254 S.W.2d 1, 1952 Tenn. App. LEXIS 110 (Tenn. Ct. App. 1952).

The original act did not violate Tenn. Const. art. II, § 17, providing that an act must not include more than one subject, that subject to be embraced in the title. McDaniel v. Textile Workers Union, 36 Tenn. App. 236, 254 S.W.2d 1, 1952 Tenn. App. LEXIS 110 (Tenn. Ct. App. 1952).

In a diversity action by alleged fund beneficiaries and coal producer seeking refund of money allegedly illegally collected by a trust doing business in Tennessee, service under the Tennessee substituted service statute upon trustees of trust created by the trust indenture contained in the national bituminous coal company agreement did not violate the due process and full faith and credit clauses of the United States Constitution. Rittenberry v. Lewis, 222 F. Supp. 717, 1963 U.S. Dist. LEXIS 7196 (E.D. Tenn. 1963), aff'd, 333 F.2d 573, 1964 U.S. App. LEXIS 4991 (6th Cir. Tenn. 1964).

This section does not violate U.S. Const. amend. 14 by not requiring, before process is issued, a showing that the defendant has the requisite “minimal contacts” with the state that would authorize the state to exercise jurisdiction over it since the defendant may challenge the sufficiency of the process and the existence of the minimal contacts required by the U.S. Const. amend. 14 and can receive a determination thereon prior to subjecting itself to the jurisdiction of the court. Jersey Farms Milk Service, Inc. v. Amalgamated Meat Cutters, etc., 297 F. Supp. 1098, 1969 U.S. Dist. LEXIS 9545 (M.D. Tenn. 1969).

2. Construction.

Since the purpose of this section, as indicated by the title to the original act, is to regulate the business of unincorporated associations within the state, the provisions for service of process are to be construed as applying only to actions growing out of the conduct of such business within the state. McDaniel v. Textile Workers Union, 36 Tenn. App. 236, 254 S.W.2d 1, 1952 Tenn. App. LEXIS 110 (Tenn. Ct. App. 1952).

It is only when unincorporated associations are doing business in Tennessee that this section can apply. Spencer Kellogg & Sons, Inc. v. Lobban, 204 Tenn. 79, 315 S.W.2d 514, 1958 Tenn. LEXIS 248 (1958).

Activity of the trustees, both in the collection and payment of money in Tennessee under the national bituminous coal wage agreement, constituted “minimum contact” to make the trust subject to substituted service of process under Tennessee statutes in suits by pension claimants and by coal producers seeking refund of moneys allegedly illegally collected by the trust. Rittenberry v. Lewis, 222 F. Supp. 717, 1963 U.S. Dist. LEXIS 7196 (E.D. Tenn. 1963), aff'd, 333 F.2d 573, 1964 U.S. App. LEXIS 4991 (6th Cir. Tenn. 1964).

As amended, this section provides for service of process on “nonresident trusts” and a literal reading would permit the trust entity to be sued as such; however, since the better rule is to require service upon the trustees in suits against a trust, plaintiff who sought such service will be allowed to amend its complaint so as to name the trustees as defendants and secure service accordingly, unless stipulation is made as to service. Rittenberry v. Lewis, 222 F. Supp. 717, 1963 U.S. Dist. LEXIS 7196 (E.D. Tenn. 1963), aff'd, 333 F.2d 573, 1964 U.S. App. LEXIS 4991 (6th Cir. Tenn. 1964).

Under the national bituminous coal wage agreement, the trust fund had numerous beneficiaries in Tennessee, resorted to court action in Tennessee courts, maintained an area medical office in Knoxville, and sent representatives and auditors to visit applicants and check employers' records; and these facts satisfy the test of doing business in Tennessee within the “substituted service” statute. Rittenberry v. Lewis, 222 F. Supp. 717, 1963 U.S. Dist. LEXIS 7196 (E.D. Tenn. 1963), aff'd, 333 F.2d 573, 1964 U.S. App. LEXIS 4991 (6th Cir. Tenn. 1964).

Despite this Tennessee service of process statute, which permits service on nonresident trusts, neither foreign nor “resident” trusts are suable as entities, trustees being the proper parties. Coverdell v. Mid-South Farm Equipment Asso., 335 F.2d 9, 1964 U.S. App. LEXIS 4878 (6th Cir. Tenn. 1964).

While it is necessary that an unincorporated association meet three requirements before being amenable to process under this section, e.g., the association must have done business in the state, the cause of action must have arisen out of such business and the association must have failed to appoint an agent for service of process, these requirements are not prerequisites to the application of the section and the plaintiff need not affirmatively establish the existence of these requirements before the statute can be invoked. Jersey Farms Milk Service, Inc. v. Amalgamated Meat Cutters, etc., 297 F. Supp. 1098, 1969 U.S. Dist. LEXIS 9545 (M.D. Tenn. 1969).

The federal rules of civil procedure authorize service of summons on an unincorporated association in the manner prescribed by the law of the state in which the district court is held (Fed. R. Civ. P. 4(d)(3), (7)); but the capacity of an unincorporated association to sue or be sued in its common name, for the purpose of enforcing for or against it a substantive right existing under the Constitution or laws of the United States is determined by the federal rules of civil procedure, regardless of state law (Fed. R. Civ. P. 17B). Jersey Farms Milk Service, Inc. v. Amalgamated Meat Cutters, etc., 297 F. Supp. 1098, 1969 U.S. Dist. LEXIS 9545 (M.D. Tenn. 1969).

This section does not require that service of process on a duly appointed resident agent of an insurance association be limited to a cause of action arising within the state. Beautytuft, Inc. v. Factory Ins. Asso., 48 F.R.D. 15, 1968 U.S. Dist. LEXIS 12775 (D. Tenn. 1969), aff'd, 431 F.2d 1122, 1970 U.S. App. LEXIS 7477 (6th Cir. Tenn. 1970).

The limitation that the cause of action must arise within the state need not be read into this statute. Beautytuft, Inc. v. Factory Ins. Asso., 431 F.2d 1122, 1970 U.S. App. LEXIS 7477 (6th Cir. Tenn. 1970).

3. Purpose.

This section was enacted to protect citizens of Tennessee against unincorporated associations of the kind covered by the statute. Spencer Kellogg & Sons, Inc. v. Lobban, 204 Tenn. 79, 315 S.W.2d 514, 1958 Tenn. LEXIS 248 (1958).

Although under the general rule of the law of trusts the administration of a trust of movables should be supervised by the courts of the state in which the trust is located, one purpose of the 1963 amendment to this section is to render nonresident trusts doing business in Tennessee subject to service of process in the courts of this state. Rittenberry v. Lewis, 222 F. Supp. 717, 1963 U.S. Dist. LEXIS 7196 (E.D. Tenn. 1963), aff'd, 333 F.2d 573, 1964 U.S. App. LEXIS 4991 (6th Cir. Tenn. 1964).

The 1963 statutory amendment to this section contemplated and was sufficient to accomplish the purpose of regulating the doing of business in Tennessee by nonresident trusts by providing for substituted personal service upon the trustees of the trust fund through the secretary of state, although it literally provided for service upon “nonresident trusts” rather than trustees. Rittenberry v. Lewis, 222 F. Supp. 717, 1963 U.S. Dist. LEXIS 7196 (E.D. Tenn. 1963), aff'd, 333 F.2d 573, 1964 U.S. App. LEXIS 4991 (6th Cir. Tenn. 1964).

4. Jurisdiction.

Where individual, acting as a broker, issued broker's slip in Tennessee, confirming sale of soybean oil by New York corporation to Louisiana partnership of which such individual was a member, New York corporation was not thereby entitled to bring the partnership into suit against the individual for the purchase price of the soybean oil. Spencer Kellogg & Sons, Inc. v. Lobban, 204 Tenn. 79, 315 S.W.2d 514, 1958 Tenn. LEXIS 248 (1958).

Extensive business enterprise conducted by nonresident individual in the state does not constitute an organization or association such as to render him amenable to substituted service. Robertson v. Cumberland Gap Fuel Co., 202 F. Supp. 801, 1962 U.S. Dist. LEXIS 5891 (E.D. Tenn. 1962).

Nonresident individual doing business under a trade name in the state may not be sued by substituted service under this section. Robertson v. Cumberland Gap Fuel Co., 202 F. Supp. 801, 1962 U.S. Dist. LEXIS 5891 (E.D. Tenn. 1962).

5. Failure to Comply — Effect.

The failure of a labor union to certify a process agent as required by this section did not relieve an employer of the obligation to bargain with such union under the National Labor Relations Act. Memphis Moldings, Inc. v. NLRB, 341 F.2d 534, 1965 U.S. App. LEXIS 6411 (6th Cir. 1965).

6. Validity of Service.

Service of unincorporated international labor union in accordance with provisions of this section was valid. International Union, United Auto., etc. v. American Metal Products Co., 56 Tenn. App. 526, 408 S.W.2d 682, 1964 Tenn. App. LEXIS 177 (Tenn. Ct. App. 1964).

Collateral References. 6 Am. Jur. 2d Associations and Clubs § 56.

7 C.J.S. Associations §§ 36, 39; 72 C.J.S. Process § 31.

Internet web site activities of nonresident person or corporation as conferring personal jurisdiction under long-arm statutes and due process clause. 81 A.L.R.5th 41.

Liability of member of unincorporated association for tortious acts of association's nonmember agent or employee. 62 A.L.R.3d 1165.

Modern status of the Massachusetts or business trust. 88 A.L.R.3d 704.

Reciprocal insurance associations. 94 A.L.R. 854, 141 A.L.R. 765, 145 A.L.R. 1121.

Remedies for determining right or title to office is unincorporated private association. 82 A.L.R.2d 1169.

Unincorporated association, constitutionality, construction, and applicability of statutes as to service of process on. 79 A.L.R. 305.

Associations 20.

20-2-203. Use of highways as appointment of agent for process — Pre-trial discovery depositions.

    1. Any owner, chauffeur or operator of any motor vehicle that is not licensed under the laws of this state, or any nonresident who, acting in behalf of the owner of any such vehicle, uses or causes to be used any such motor vehicle in this state, or any nonresident of this state who hires or procures the use of a motor vehicle licensed under the laws of this state, for temporary use in this state, and who makes use of the privilege, extended to nonresidents of the state to operate such vehicle on highway or highways within the state, shall be deemed thereby to constitute the secretary of state of this state as agent for acceptance of service of process in any civil action brought by any person against the owner, chauffeur or operator of such motor vehicle or nonresident arising out of any accident or injury occurring in this state in which such vehicle is involved;
    2. Such use of a highway shall be treated as an agreement on the part of such person that such service of process shall have the force and validity of personal service on the owner, chauffeur or operator of such motor vehicle or nonresident within the jurisdiction of this state and the county of action.
    3. As used in this section, “nonresident” includes any person who, though a resident of this state or who was the owner or operator of a motor vehicle properly registered and licensed under the laws of this state when the motor vehicle accident or injury occurred, has been absent from this state for at least thirty (30) days next preceding the day on which process is lodged with the secretary of state as provided in § 20-2-205.
  1. The agency of the secretary of state to accept service of process in actions for both personal injuries and property damages shall continue for such period of time or so long as the cause of action is not barred by the statute of limitations of this state and shall not be revoked by the death of the nonresident during that period of time. The agency shall continue so long after the expiration of such time as may be necessary to enable the secretary of state to complete the service of process, sued out prior to the expiration of the time and forwarded to the defendant with reasonable dispatch.
  2. The secretary of state shall keep a docket in which the secretary of state enters the style of the cause, the date of issuance of such process, the date of its receipt by the secretary of state and the date on which it was forwarded by the secretary of state to the person named as defendant in the cause.
  3. For the purpose of venue as set out in § 20-4-101, the secretary of state may be considered by the plaintiff as either a resident of the county in which the cause of action arose or the county in which the plaintiff resides.
  4. Any owner, chauffeur or operator of any motor vehicle that is not licensed under the laws of this state, or any nonresident who, acting in behalf of the owner of any such vehicle, uses or causes to be used any such motor vehicle in this state, or any nonresident who hires or procures the use of a motor vehicle licensed under the laws of this state, for temporary use in the state, and who is duly served with process under this section and §§ 20-2-204 — 20-2-207, in connection with any civil action brought by any person against the owner, chauffeur or operator, or nonresident arising out of any accident or injury occurring in this state in which the vehicle is involved, shall be required, upon receipt of the proper notice as required in title 24, chapter 9 to appear at the time and place specified in the notice, which shall be in the county in which the action is pending, for the purpose of giving a pretrial discovery deposition as authorized by the rules of civil procedure and title 24, chapter 9. The written notice required by § 20-2-205 to be sent to any person served under §§ 20-2-204 — 20-2-207, along with a certified copy of the original summons, shall include a notification to the effect that the person shall be subject to appearance in this state for the purpose of giving a pretrial discovery deposition if subsequently served with proper notice to do so.
  5. Nothing in this section shall be construed as a prohibition on the exercise of jurisdiction over or service of process on a person who is deemed by this section to constitute the secretary of state as the person's agent, pursuant to §§ 20-2-214 — 20-2-219.

Code 1932, § 8671; Acts 1947, ch. 235, § 1; 1949, ch. 47, §§ 1, 2; C. Supp. 1950, § 8671; Acts 1955, ch. 265, § 1; 1957, ch. 61, § 1; 1963, ch. 269, § 1; 1968, ch. 574, § 1; 1970, ch. 396, § 1; 1972, ch. 470, § 1; 1977, ch. 348, § 1; 1979, ch. 418, § 1; T.C.A. (orig. ed.), § 20-224.

Cross-References. Liability insurance on motor vehicles, § 56-7-1101.

Textbooks. Tennessee Forms (Robinson, Ramsey and Harwell), Nos. 1-8-4.1, 1-8-6, 1-8-10.

Tennessee Jurisprudence, 4 Tenn. Juris., Automobiles, § 36; 21 Tenn. Juris., Process, § 9; 24 Tenn. Juris., Venue, § 4.

Law Reviews.

Civil Procedure — Carr v. Borchers: Tennessee's Nonresident Motorist Statute Revisited, 22 Mem. St. U.L. Rev. 357 (1992).

The Future of General Jurisdiction in Tennessee, 27 U. Mem. L. Rev. 559 (1997).

Cited: Fowler v. Herman, 200 Tenn. 201, 292 S.W.2d 11, 1956 Tenn. LEXIS 396 (1956); Shelton v. Breeding, 43 Tenn. App. 609, 310 S.W.2d 469, 1957 Tenn. App. LEXIS 138 (Tenn. Ct. App. 1957); Lovejoy v. Ahearn, 223 Tenn. 562, 448 S.W.2d 420, 1969 Tenn. LEXIS 442 (1969); Speight v. Miller, 437 F.2d 781, 1971 U.S. App. LEXIS 11951 (7th Cir. Ill. 1971); McDavid v. James, 64 F.R.D. 182, 1973 U.S. Dist. LEXIS 10620 (D. Tenn. 1973); Jones v. Johnson, 244 S.W.3d 338, 2007 Tenn. App. LEXIS 438 (Tenn. Ct. App. July 16, 2007).

NOTES TO DECISIONS

1. Constitutionality.

This section is constitutional as a valid exercise of police power. Dixie Feed & Seed Co. v. Byrd, 52 Tenn. App. 619, 376 S.W.2d 745, 1963 Tenn. App. LEXIS 119 (Tenn. Ct. App. 1963).

2. Purpose.

The purpose of the statute is to facilitate the enforcement of civil remedies by those injured in their person or property by the negligent or wanton operation of motor vehicles upon the highways. Ellis v. Georgia Marble Co., 191 Tenn. 229, 232 S.W.2d 45, 1950 Tenn. LEXIS 569 (1950).

This section is for the benefit of residents of Tennessee and not for the benefit of nonresidents. Bertrand v. Wilds, 198 Tenn. 543, 281 S.W.2d 390, 1955 Tenn. LEXIS 404 (1955).

The purpose of this section is to better enable enforcement in Tennessee courts of civil remedies available against those liable by reason of negligent operation of a motor vehicle over the Tennessee highways. Leggett v. Crossnoe, 206 Tenn. 700, 336 S.W.2d 1, 1960 Tenn. LEXIS 400 (1960); Anderson v. Outland, 210 Tenn. 526, 360 S.W.2d 44, 1962 Tenn. LEXIS 314 (1962).

The statute was enacted for the benefit of persons injured within the state rather than for the benefit of nonresident motorists causing such injuries. Anderson v. Outland, 210 Tenn. 526, 360 S.W.2d 44, 1962 Tenn. LEXIS 314 (1962).

The general purpose of the nonresident substituted service of process statute of Tennessee is to subject nonresident users of the state's highways to the state's judicial process in actions arising out of accidents occurring on such highways. Williams v. Kitchin, 316 F.2d 310, 1963 U.S. App. LEXIS 5569 (6th Cir. Tenn. 1963).

The object of nonresident motorist statutes is to provide a method of notice reasonably calculated to afford parties interested in the proceeding an opportunity to appear and be heard. Massengill v. Campbell, 391 F.2d 233, 1968 U.S. App. LEXIS 7918 (5th Cir. Tex. 1968).

3. Construction.

This statute must be given a strict construction. Ellis v. Georgia Marble Co., 191 Tenn. 229, 232 S.W.2d 45, 1950 Tenn. LEXIS 569 (1950).

This statute is in derogation of the common law and is strictly construed. Tabor v. Mason Dixon Lines, Inc., 196 Tenn. 198, 264 S.W.2d 821, 1953 Tenn. LEXIS 410 (1953).

Rule that statute, being in derogation of common law, is to be strictly construed only applies where the statute is ambiguous or open to more than one construction and will not apply where the terms of the statute are clear and unambiguous. Anderson v. Outland, 210 Tenn. 526, 360 S.W.2d 44, 1962 Tenn. LEXIS 314 (1962); Williams v. Kitchin, 316 F.2d 310, 1963 U.S. App. LEXIS 5569 (6th Cir. Tenn. 1963).

The nonresident substituted service of process statute of Tennessee must be given a reasonable construction, and one which is in accord with its purpose. Williams v. Kitchin, 316 F.2d 310, 1963 U.S. App. LEXIS 5569 (6th Cir. Tenn. 1963).

The nonresident substituted service of process statute of Tennessee was not intended to cover only “those nonresidents who rent or otherwise obtain the bailment of an automobile licensed in this state but have no other right of ownership.” Williams v. Kitchin, 316 F.2d 310, 1963 U.S. App. LEXIS 5569 (6th Cir. Tenn. 1963).

This section is not a limitation statute but an appointing statute and the secretary's agency is both created and limited by the statute. Thomas v. Anderson, 222 Tenn. 204, 435 S.W.2d 109, 1968 Tenn. LEXIS 425 (1968); Speight v. Miller, 223 Tenn. 259, 443 S.W.2d 657, 1969 Tenn. LEXIS 410 (1969).

4. —“Involved.”

“Involved” as here used means something connected with the accident, and if a nonresident has an accident as a result of using our highways, then these nonresidents consent that the secretary of this state is their agent to accept service of process for them for accidents or injuries growing out of using the highways. Ellis v. Georgia Marble Co., 191 Tenn. 229, 232 S.W.2d 45, 1950 Tenn. LEXIS 569 (1950).

5. Application.

This section applies only to damages or loss growing out of the use of the highway. Ellis v. Georgia Marble Co., 191 Tenn. 229, 232 S.W.2d 45, 1950 Tenn. LEXIS 569 (1950).

This section permitting service on secretary of state did not apply where plaintiff was injured while unloading marble on premises of consignee since vehicle involved had reached its destination and accident was not due to travel on the highway but to negligent loading of marble. Ellis v. Georgia Marble Co., 191 Tenn. 229, 232 S.W.2d 45, 1950 Tenn. LEXIS 569 (1950).

This section applies not only to vehicles upon public highways but also to vehicles on private property. Bertrand v. Wilds, 198 Tenn. 543, 281 S.W.2d 390, 1955 Tenn. LEXIS 404 (1955); Dixie Feed & Seed Co. v. Byrd, 52 Tenn. App. 619, 376 S.W.2d 745, 1963 Tenn. App. LEXIS 119 (Tenn. Ct. App. 1963).

Accident within grounds of veterans hospital occurred on “highway” so that service on secretary of state for nonresidents was valid. Bertrand v. Wilds, 198 Tenn. 543, 281 S.W.2d 390, 1955 Tenn. LEXIS 404 (1955).

The injury sustained of the accident which occurred must have some causal relation to traffic upon a highway or upon premises accessible to users of the highway in order to authorize service under this section. Acuff v. Service Welding & Machine Co., 141 F. Supp. 294, 1956 U.S. Dist. LEXIS 3275 (D. Tenn. 1956).

Where plaintiff was injured while unloading cargo of trailer after tractor-trailer had traveled over Tennessee highways and such injury allegedly occurred as the result of defective condition of trailer whereby plaintiff caught his foot in hole of trailer and a tank which was part of the cargo rolled over him, the defective condition of the trailer did not result from use of the highways and service was not authorized under this section. Acuff v. Service Welding & Machine Co., 141 F. Supp. 294, 1956 U.S. Dist. LEXIS 3275 (D. Tenn. 1956).

Where plaintiff was injured when defendant, a resident of Kentucky, was backing his truck along street preparatory to unloading of his trailer as defendant attempted to push a spotted railroad freight car out of his way, defendant's vehicle was involved in an accident on an open way to public travel or use within the state and plaintiff's injury had a causal connection to traffic upon premises accessible to users of state highways, therefore defendant's motion to dismiss the complaint on grounds that accident occurred on private property and that service under this section was not proper was overruled. Davis v. Parrott, 201 F. Supp. 398, 1962 U.S. Dist. LEXIS 3976 (E.D. Tenn. 1962).

A Michigan resident who purchased an automobile while visiting her brother in Tennessee, obtained a “drive-out” temporary license tag issued by the state through automobile dealers, and was involved in an accident in Tennessee while on the way home, was subject to substituted service of process upon the secretary of state, under this section. Williams v. Kitchin, 316 F.2d 310, 1963 U.S. App. LEXIS 5569 (6th Cir. Tenn. 1963).

Statute applied to foreign vehicle which had driven over highways of state to deliver grain and while on the premises struck a wall causing wall to fall on sidewalk and injure pedestrian. Dixie Feed & Seed Co. v. Byrd, 52 Tenn. App. 619, 376 S.W.2d 745, 1963 Tenn. App. LEXIS 119 (Tenn. Ct. App. 1963).

This section applies to actions for contribution or indemnity by joint tort-feasors or their insurers. Dixie Portland Flour Mills, Inc. v. Dixie Feed & Seed Co., 382 F.2d 830, 1967 U.S. App. LEXIS 5142 (6th Cir. Tenn. 1967).

This section is the statutory authority for service of process in tort actions arising out of motor vehicular use of state highways by nonresidents and §§ 20-2-21420-2-219, the “long-arm” statute, is not available for service of process in such a case. Hatler v. Stout, 222 Tenn. 172, 434 S.W.2d 329, 1968 Tenn. LEXIS 507 (1968).

Since this process statute neither creates rights nor imposes liabilities, it is procedural and applies not only to causes of action arising before the act became law, but to all suits pending when the legislation took effect. Saylors v. Riggsbee, 544 S.W.2d 609, 1976 Tenn. LEXIS 517 (Tenn. 1976).

6. —Agency of Secretary of State.

If the process is sued out within one year from the accident and forwarded to the secretary of state with reasonable dispatch though it reaches him after the end of the year, his agency will continue so long after the expiration of the year as will be necessary to enable him to complete service. Anderson v. Outland, 210 Tenn. 526, 360 S.W.2d 44, 1962 Tenn. LEXIS 314 (1962); Vance v. Blegan, 225 Tenn. 282, 466 S.W.2d 223, 1971 Tenn. LEXIS 301 (1971).

The only “service of process” necessary is that upon the secretary of state and notice to the defendant although vital, is a separate matter. Vance v. Blegan, 225 Tenn. 282, 466 S.W.2d 223, 1971 Tenn. LEXIS 301 (1971).

Service of process on the secretary of state is sufficient to toll the running of the statute of limitations, provided the plaintiff uses or has used due diligence to ascertain the whereabouts of the defendant and to serve the requisite notice to make service consummate. Carr v. Borchers, 815 S.W.2d 528, 1991 Tenn. App. LEXIS 243 (Tenn. Ct. App. 1991), appeal denied, — S.W.2d —, 1991 Tenn. LEXIS 314 (Tenn. Aug. 5, 1991).

This section validly makes the use of the highways of the state by a nonresident motorist an appointment of the secretary of state as agent to receive process, and the service of that process within the authorized period satisfies the requirement of the statute. Vance v. Blegan, 225 Tenn. 282, 466 S.W.2d 223, 1971 Tenn. LEXIS 301 (1971).

Mere ownership of a motor vehicle is insufficient to constitute the secretary of state as agent for acceptance of service of process since use of this vehicle in the state on the part of the nonresident motorist is required. Hogan v. Nicholas, 391 F. Supp. 10, 1974 U.S. Dist. LEXIS 7418 (D. Tenn. 1974).

7. —Nonresident Owner's Automobile in Hands of Agent.

Where a nonresident owner of an automobile places it in the control of an agent or servant, and sends it into this state, he is making use of the privilege of operating it on the highways of the state, so as to render him liable to the process defined in the statute. Producers' & Refiners' Corp. v. Illinois C. R. Co., 168 Tenn. 1, 73 S.W.2d 174, 1934 Tenn. LEXIS 18 (1934).

8. —Nonresident Owner's Automobile in Hands of Thief.

Where defendant's automobile bearing a North Carolina license plate was stolen in North Carolina and driven into Tennessee, where plaintiff was negligently injured by the car, it was unavailing for plaintiff to argue that defendant negligently procured the vehicle for the use of the thief due to fact that automobile was not licensed in Tennessee. Hogan v. Nicholas, 391 F. Supp. 10, 1974 U.S. Dist. LEXIS 7418 (D. Tenn. 1974).

9. —Nonresident Administrator of Deceased Resident.

A nonresident who has qualified as administrator of estate of deceased resident killed in an accident on the highway in Tennessee is a “resident” of this state for the purpose of this section. Hunt v. Noll, 112 F.2d 288, 1940 U.S. App. LEXIS 4284 (6th Cir. Tenn. 1940), cert. denied, 311 U.S. 690, 61 S. Ct. 71, 85 L. Ed. 446, 1940 U.S. LEXIS 196 (Oct. 28, 1940).

10. —Nonresident Parents of Minor Operator.

Nonresident parents' act of joining in their minor son's application for Tennessee driver's license brought them within the class of persons who might be served with process through secretary of state under this section in tort action arising out of son's operation of automobile on highways of state. Leggett v. Crossnoe, 206 Tenn. 700, 336 S.W.2d 1, 1960 Tenn. LEXIS 400 (1960).

11. Averment of Negligence.

A necessary averment for service under this section is some negligent act on the part of the operator of the vehicle while in or on our highways, and without such an averment our substitute of process service statute does not lay a predicate for service on the secretary of state. Ellis v. Georgia Marble Co., 191 Tenn. 229, 232 S.W.2d 45, 1950 Tenn. LEXIS 569 (1950).

12. Cross Action.

This nonresident statute does not make rules for a new and previously unknown procedure and does not limit the methods by which the original plaintiff can be brought before the court as a cross defendant. Stevens v. Linton, 190 Tenn. 351, 229 S.W.2d 510, 1950 Tenn. LEXIS 492 (1950).

13. Venue.

The provisions of §§ 20-2-203, 20-2-205, 20-2-206 must be construed in pari materia with § 20-4-101 which governs venue in transitory actions generally. Carter v. Schackne, 173 Tenn. 44, 114 S.W.2d 787, 1937 Tenn. LEXIS 11 (1938); Thomas v. Altsheler, 191 Tenn. 640, 235 S.W.2d 806, 1951 Tenn. LEXIS 368 (1951).

Under this section as construed with § 20-4-101 the secretary of state is agent of nonresident defendants in each county of the state and may receive service or be served with process as if the defendant was a resident of plaintiff's county. Carroll v. Matthews, 172 Tenn. 590, 113 S.W.2d 742, 1937 Tenn. LEXIS 101 (1938).

An action against a nonresident for a wrongful killing is a transitory action which must be brought in the county of plaintiff's residence, in view of § 20-4-101. Carroll v. Matthews, 172 Tenn. 590, 113 S.W.2d 742, 1937 Tenn. LEXIS 101 (1938); Thomas v. Altsheler, 191 Tenn. 640, 235 S.W.2d 806, 1951 Tenn. LEXIS 368 (1951).

The physical location or residence of the secretary of state has no determinative venue value under this section but rather in such actions the nonresident defendant is for venue purposes to be treated as a resident of that county in which the plaintiff resides. Carter v. Schackne, 173 Tenn. 44, 114 S.W.2d 787, 1937 Tenn. LEXIS 11 (1938).

In a suit for the unlawful killing of plaintiff's intestate in an automobile accident where some of the defendants were nonresidents of the state and others were residents of a different county from plaintiff the suit was properly brought in the county of plaintiff's residence where the nonresident defendants were served under the provisions of §§ 20-2-203, 20-2-205, 20-2-206 and the defendants who were residents of the other county were served by counterpart from the county of plaintiff's residence. Carter v. Schackne, 173 Tenn. 44, 114 S.W.2d 787, 1937 Tenn. LEXIS 11 (1938).

In suit against nonresident for injuries arising out of automobile accident where service was through the secretary of state in accordance with this section, venue of suit was in county of residence of plaintiff and action against defendant in county where tort occurred would be abated. Bellar v. National Motor Fleets, Inc., 224 Tenn. 63, 450 S.W.2d 312, 1970 Tenn. LEXIS 301 (1970).

Where process is served on nonresidents under this section then defendants are treated as residents of the county in which plaintiff resides and this section as to venue is construed in pari materia with the general statutes regulating venue in civil actions. Northcott v. Holloway, 225 Tenn. 141, 464 S.W.2d 551, 1971 Tenn. LEXIS 288 (1971).

14. —Suit Between Nonresidents.

In suit between nonresidents over automobile accident arising in Tennessee, proper venue is the county of the accident. Thomas v. Altsheler, 191 Tenn. 640, 235 S.W.2d 806, 1951 Tenn. LEXIS 368 (1951).

15. —Waiver of Right to Object.

The privileges and immunities of citizens of the United States, somewhat narrowed already by this section, should not be additionally restricted by a strained construction of the waiver, or consent, whereby motorist waives his right to object to the venue. Waters v. Plyborn, 93 F. Supp. 651, 1950 U.S. Dist. LEXIS 2382 (D. Tenn. 1950).

Residents of West Virginia did not waive right to object in federal court to venue in suit by residents of Texas for damages arising out of automobile accident in Tennessee merely because they consented to service on secretary of state by riding on highways of Tennessee. Waters v. Plyborn, 93 F. Supp. 651, 1950 U.S. Dist. LEXIS 2382 (D. Tenn. 1950).

16. Limitations.

Under the provisions of this section the nonresident operators of an automobile which struck and killed plaintiff's intestate were given the status of residents of the county of action for the purpose of service and could at all times have been served through the secretary of state so that the provisions of § 28-1-111 with reference to the tolling of the statute of limitations were inapplicable. Arrowood v. McMinn County, 173 Tenn. 562, 121 S.W.2d 566, 1938 Tenn. LEXIS 43, 119 A.L.R. 855 (1938).

Secretary of state cannot accept service on nonresident after expiration of one year from date of accident. Tabor v. Mason Dixon Lines, Inc., 196 Tenn. 198, 264 S.W.2d 821, 1953 Tenn. LEXIS 410 (1953).

Suit filed in county of motor vehicle accident by nonresident plaintiffs against nonresident defendants over year after accident started by process served on secretary of state was barred by this section, even though plaintiffs had prior suit in county of wrong venue dismissed, which was commenced within the year since § 28-1-105 does not toll appointing statute. Oliver v. Altsheler, 198 Tenn. 155, 278 S.W.2d 675, 1955 Tenn. LEXIS 356 (1955).

Nonresidence of motorist involved in accident would not toll statute of limitations since service may be had on secretary of state under this section. Young v. Hicks, 250 F.2d 80, 1957 U.S. App. LEXIS 4452 (8th Cir. Mo. 1957).

Where action for personal injuries arising out of automobile accident was commenced against nonresident in federal court in Tennessee within one year after the accident and summons was returned to the effect that defendant was no longer in the Tennessee district but could be found at a designated address in another state but nothing further was done until the second term of court thereafter when plaintiff obtained an order for “plures summons” and service in Tennessee more than twenty-two months after date of injury, plaintiff's claim was barred by the one year limitation of § 28-3-104 since plaintiff could have obtained service under the provisions of this section and § 20-2-205. Hixon v. Highsmith, 147 F. Supp. 801, 1957 U.S. Dist. LEXIS 4282 (D. Tenn. 1957).

In suit against nonresident motorist where suit was filed and clerk issued summons prior to expiration of the one year period, although summons was improperly mailed to marshal in New York for personal service, suit was commenced and action was brought within the period of the limitation although alias summons was not served on secretary of state until after the expiration of the one year period. Proctor v. Hendrick, 174 F. Supp. 270, 1958 U.S. Dist. LEXIS 2979 (D. Tenn. 1958).

In action for personal injuries against nonresident motorist where secretary of state was served with copy of summons and declaration within the one year period provided by this section, such service was good even though the first summons and declaration addressed to defendant was mailed to incorrect address and returned without being delivered and correctly addressed summons and declaration was not received by defendant until after more than one year from date of the accident. Noseworthy v. Robinson, 203 Tenn. 683, 315 S.W.2d 259, 1958 Tenn. LEXIS 235 (1958).

Under this section, providing that agency of the secretary of state to accept substituted service of process shall continue for one year from the date of any accident, where suit was not filed until more than a year after the accident upon which it was based, the service on the secretary of state was not sufficient to bring defendants into federal court under rule permitting service of process according to law of state wherein the action is brought. Ayers v. Gentry, 34 F.R.D. 477, 1963 U.S. Dist. LEXIS 10483 (D. Tenn. 1963).

Where plaintiff filed his declaration and summons in the state court within the period of limitation, but the clerk of the court, through oversight, did not forward it to the secretary of state until after the limitation period had expired, the process and service were sufficient. Miller v. Baird, 239 F. Supp. 754, 1965 U.S. Dist. LEXIS 7101 (E.D. Tenn. 1965).

In a suit for contribution or indemnity between joint tort-feasors, the one year period provided in this section begins upon the payment of the judgment of the injured party rather than the date of the accident. Dixie Portland Flour Mills, Inc. v. Dixie Feed & Seed Co., 272 F. Supp. 826, 1965 U.S. Dist. LEXIS 5979 (W.D. Tenn. 1965), aff'd, 382 F.2d 830, 1967 U.S. App. LEXIS 5142 (6th Cir. Tenn. 1967).

In personal injury action arising out of automobile accident involving nonresident motorist, attempted service on secretary of state as agent of nonresident was not timely where process was issued more than fourteen months after the accident. Thomas v. Anderson, 222 Tenn. 204, 435 S.W.2d 109, 1968 Tenn. LEXIS 425 (1968).

In order to continue the secretary's agency beyond one year from the date of the accident process must be sued out prior to the expiration of that year and forwarded to him with reasonable dispatch. Thomas v. Anderson, 222 Tenn. 204, 435 S.W.2d 109, 1968 Tenn. LEXIS 425 (1968).

The process which must be sued out within the period specified by this section is the one addressed to the secretary of state and if such process is not sued out before expiration of the time limit the agency of the secretary cannot be extended. Thomas v. Anderson, 222 Tenn. 204, 435 S.W.2d 109, 1968 Tenn. LEXIS 425 (1968).

Service under this section cannot be had after expiration of the statutory time even though plaintiff may have in good faith sued out an original summons in an effort to get service on defendant within the state but has failed in such efforts. Speight v. Miller, 223 Tenn. 259, 443 S.W.2d 657, 1969 Tenn. LEXIS 410 (1969).

The Tennessee Nonresident Motorist Statute is not a limitation statute but rather a process statute which both creates and limits the agency of the secretary of state so that his agency to accept service of process begins on the date of the accident and extends for one year in cases of personal injury and three years in cases of damage to personal property. Speight v. Miller, 223 Tenn. 259, 443 S.W.2d 657, 1969 Tenn. LEXIS 410 (1969).

When the relationship expired, it was not recreated, or revived by the amendment which was not expressly retroactive. Henderson v. Ford, 488 S.W.2d 720, 1972 Tenn. LEXIS 320 (Tenn. 1972), overruled in part, Saylors v. Riggsbee, 544 S.W.2d 609, 1976 Tenn. LEXIS 517 (Tenn. 1976).

Where suit was pending when the statute was amended to authorize service of process on the secretary of state for so long as the action is not barred by the statute of limitations, the former requirement that process be served on the secretary of state within one year of the date of the accident was inapplicable. Saylors v. Riggsbee, 544 S.W.2d 609, 1976 Tenn. LEXIS 517 (Tenn. 1976).

T.C.A. § 28-1-111, tolling limitations periods during the absence of persons from the state, is generally inapplicable to nonresident motorists who may be served through the secretary of state under the provisions of T.C.A. § 20-2-203. Ballard v. Ardehani, 901 S.W.2d 369, 1995 Tenn. App. LEXIS 18 (Tenn. Ct. App. 1995).

In a personal injury action arising from an automobile accident, even though plaintiff was unaware of the fact that defendant was, or had become, a nonresident, where plaintiff had not used due diligence in attempting to locate and serve defendant, the plaintiff failed to satisfy the prerequisites necessary to toll the statute of limitations. Ballard v. Ardehani, 901 S.W.2d 369, 1995 Tenn. App. LEXIS 18 (Tenn. Ct. App. 1995).

17. Removal to Federal Court.

Where plaintiff instituted action against out of state motorist by service on secretary of state under this section and §§ 20-2-205, 20-2-206 and four months later filed his declaration, the declaration and not the summons was the initial pleading within the meaning of 28 U.S.C. § 1446(b) authorizing removal to federal court within 20 days after receipt of initial pleading by defendant and defendant could remove the case within that period even though plaintiff had in the meantime taken a default judgment. Munsey v. Testworth Laboratories, Inc., 227 F.2d 902, 1955 U.S. App. LEXIS 3277 (6th Cir. Tenn. 1955).

18. Default.

Where nonresident failed to appear and defend after constructive and actual notice of pendency of suits alleging that automobile involved in accident was operated with her consent, unappealed default judgments became binding on her after expiration of thirty days and judgment creditors were entitled to recovery against defendant's insurer in action on judgments. Pyle v. Bituminous Casualty Corp., 42 Tenn. App. 145, 299 S.W.2d 665, 1956 Tenn. App. LEXIS 120 (Tenn. Ct. App. 1956).

19. Transfer to Proper District in Federal Court.

Where plaintiff filed his action in the wrong federal court district and dismissal without prejudice would preclude a hearing on the merits because of the time limit for service under this act having expired, the district court may transfer the cause to the proper district and division. Ptaszynki v. Ferrell, 277 F. Supp. 969, 1967 U.S. Dist. LEXIS 7519 (E.D. Tenn. 1967).

20. Conflict of Laws.

Sufficiency of service of process, under Tennessee nonresident motorist statute, on resident of Texas with respect to suit for damages arising out of automobile accident in Tennessee, was determinable under Tennessee law. Massengill v. Campbell, 391 F.2d 233, 1968 U.S. App. LEXIS 7918 (5th Cir. Tex. 1968).

21. Suspension Statute.

Where the plaintiff had used due diligence in trying to ascertain the location of the defendant, the plaintiff was not precluded from relying upon the suspension statute, T.C.A. § 28-1-111. Lam v. Smith, 891 S.W.2d 207, 1994 Tenn. LEXIS 377 (Tenn. 1994).

Collateral References. 8 Am. Jur. 2d Automobiles §§ 847, 849-871, 62 Am. Jur. 2d Process §§ 75-79.

72 C.J.S. Process § 50.

Airplane or other aircraft as “motor vehicle” or the like within statute providing for constructive or substituted service of process on nonresident motorist. 36 A.L.R.3d 1387.

Application of doctrine of idem sonans or the like to substituted or constructive service of process. 45 A.L.R.2d 1090.

Automobile, constitutionality of statute providing for substituted or constructive service upon nonresident in action for tort in connection with. 35 A.L.R. 951, 57 A.L.R. 1239, 99 A.L.R. 130.

Constitutionality and construction of statute authorizing constructive or substituted service of process on foreign representative of deceased nonresident driver of motor vehicle, arising out of accident occurring in state. 18 A.L.R.2d 544.

Construction and application of statute providing for constructive or substituted service of process on nonresident motorist. 82 A.L.R. 768, 96 A.L.R. 594, 125 A.L.R. 457, 138 A.L.R. 1464, 155 A.L.R. 333.

Place or type of motor vehicle accident as affecting applicability of statute providing for constructive or substitute service upon nonresident motorist. 73 A.L.R.2d 1351.

Statute providing for constructive or substituted service upon nonresident motorist, applicability as affected by place or type of motor vehicle accident. 73 A.L.R.2d 1351.

Statutory service on nonresident motorists: return receipts. 95 A.L.R.2d 1033.

Venue of action against nonresident motorist served constructively under statute. 38 A.L.R.2d 1198.

Who is subject to constructive or substituted service of process under statutes providing for such service on nonresident motorists. 53 A.L.R.2d 1164.

Process 58, 80.

20-2-204. Death of party after appointment of agent.

  1. The owner, chauffeur or operator of any motor vehicle that is not licensed under the laws of this state or any nonresident of this state who hires or procures the use of a motor vehicle licensed under the laws of this state for temporary use in this state, and who makes use of the privilege extended to nonresidents of the state, to operate such vehicle on the highway or highways within the state, shall be deemed to have consented that the appointment of the secretary of state as the owner's, chauffeur's, operator's or nonresident's agent for the purposes set forth in § 20-2-203 shall be irrevocable and binding upon such owner's, chauffeur's, operator's or nonresident's executor or administrator.
  2. Where the person has died prior to the commencement of an action brought pursuant to § 20-2-203, this section and §§  20-2-205 — 20-2-207, service of process shall be made on the executor, executrix, administrator or administratrix of the decedent in the same manner as is provided for action commenced while the person is living.
  3. Where an action has been duly commenced under § 20-2-203, this section and §§  20-2-205 — 20-2-207 by service upon a defendant who dies thereafter, the court shall allow the action to be continued against the person's executor or administrator upon motion with such notice as the court deems proper.

    C. Supp. 1950, § 8675.1; T.C.A. (orig. ed.), § 20-225.

    Law Reviews.

    A Survey of Civil Procedure in Tennessee — 1977, II. Selecting a Proper Forum, (John L. Sobieski, Jr.), 46 Tenn. L. Rev. 273.

    Collateral References. Process 58, 80.

  4. In case delivery of process so made by registered or certified mail is refused by the addressee of the process, such refusal to be evidenced by appropriate notation of such fact by the postal authorities, the refusal shall be deemed the equivalent of delivery and adequately constitutes service.
  5. Acceptance of the registered or certified mail by any member of the addressee's family, over sixteen (16) years of age and residing in the same dwelling with the addressee, shall constitute a sufficient delivery of the mail to the addressee.

20-2-205. Service on secretary of state.

Service of process under § 20-2-203 shall be made by lodging, by the plaintiff or the plaintiff's attorney, the original summons and a copy certified by the clerk of the court in which action is brought, with a fee of twenty dollars ($20.00), with the secretary of state, who shall promptly send, postage prepaid, the certified copy by registered or certified return receipt mail to the defendant, along with a written notice that service was so made.

In case it appears, either before or after the lodging of process, as provided in subsection (a), that the nonresident is dead, then either original or alias process may issue, directed to the personal representative of the nonresident deceased and shall be sent, as provided in subsection (a), to the probate court of the county and state of the residence of the deceased at the time of the deceased's death. No appearance need be made nor shall judgment be taken against the personal representative until the lapse of sixty (60) days from the date of mailing the process to such probate court. The procedure for mailing such process and proof of service of process shall be as provided in this section and in § 20-2-206 for the service upon living persons.

The fee of twenty dollars ($20.00) so paid by the plaintiff, when fact of payment is endorsed on the original process by the secretary of state, shall be taxed as plaintiff's cost, to abide the judgment.

Code 1932, §§ 8672, 8675; Acts 1949, ch. 47, § 3; C. Supp. 1950, § 8672; Acts 1955, ch. 265, § 2; 1971, ch. 332, § 1; 1980, ch. 656, §§ 1, 2; T.C.A. (orig. ed.), § 20-226; Acts 1998, ch. 890, § 7.

Compiler's Notes. Tenn. R. Civ. P. 4.04, wherein a copy of complaint must be forwarded, seems to supplement this section.

Cross-References. Certified mail in lieu of registered mail, § 1-3-111.

Process, Tenn. R. Civ. P. 4.

Rule Reference. This section is referred to in the Advisory Commission Comments under Rule 12 of the Tennessee Rules of Civil Procedure.

Textbooks. Tennessee Jurisprudence, 4 Tenn. Juris., Automobiles, § 36.

Law Reviews.

Expanded Bases of Jurisdiction — An Examination of Tennessee's New “Long-Arm” Statute (Harry G. Nichols, Jr.), 18 Vand. L. Rev. 1484.

Cited: Thomas v. Altsheler, 191 Tenn. 640, 235 S.W.2d 806, 1951 Tenn. LEXIS 368 (1951); Keeble v. Loudon Utilities, 212 Tenn. 483, 370 S.W.2d 531, 1963 Tenn. LEXIS 442 (1963); Yox v. Durgan, 302 F. Supp. 1262, 1969 U.S. Dist. LEXIS 9926 (E.D. Tenn. 1969); Loyd v. Littlejohn, 639 S.W.2d 657, 1982 Tenn. App. LEXIS 397 (Tenn. Ct. App. 1982).

NOTES TO DECISIONS

1. Contents of Summons.

Summons on secretary of state under § 20-2-203 need not set out briefly the facts authorizing service on nonresident motorist for wrongful death. Gogan v. Jones, 197 Tenn. 436, 273 S.W.2d 700, 1954 Tenn. LEXIS 505 (1954).

2. Sufficient Service.

Service of process, under this section, on defendant, a resident of Texas, with respect to suit for damages arising out of automobile accident in Tennessee, was adequate where registered letter sent by Tennessee secretary of state to defendant was picked up at post office by defendant's fourteen-year-old son and defendant received actual notice from son of pendency of Tennessee proceedings. Massengill v. Campbell, 391 F.2d 233, 1968 U.S. App. LEXIS 7918 (5th Cir. Tex. 1968).

The only “service of process” necessary is that on the secretary of state and notice to the defendant although vital, is a separate matter. Vance v. Blegan, 225 Tenn. 282, 466 S.W.2d 223, 1971 Tenn. LEXIS 301 (1971).

This section only requires that the summons be “lodged with” and not in a technical sense “addressed to” the secretary of state. Vance v. Blegan, 225 Tenn. 282, 466 S.W.2d 223, 1971 Tenn. LEXIS 301 (1971).

3. Insufficient Service.

Under provision that agency of the secretary of state to accept substituted service of process shall continue for one year from the date of any accident, where suit was not filed until more than a year after the accident upon which it was based, the service on the secretary of state was not sufficient to bring defendants into federal court under rule permitting service of process according to law of state wherein the action is brought. Ayers v. Gentry, 34 F.R.D. 477, 1963 U.S. Dist. LEXIS 10483 (D. Tenn. 1963).

4. Duty to Furnish Defendant's Address.

The plaintiff has a duty to furnish secretary of state with defendant's address with due diligence and the policy set out in § 28-105 (repealed), which requires suit to be reinstituted within one year after summons is returned unexecuted so that address should be furnished within one year of last unsuccessful effort to give notice. Vance v. Blegan, 225 Tenn. 282, 466 S.W.2d 223, 1971 Tenn. LEXIS 301 (1971).

Where plaintiff furnished secretary of state with defendant's correct address within one year of the last successful attempt to give notice, fourth “alias summons” within such period served as satisfactory exercise of plaintiff's duty to provide with due diligence a correct address. Vance v. Blegan, 225 Tenn. 282, 466 S.W.2d 223, 1971 Tenn. LEXIS 301 (1971).

Even though “alias” and “pluries” summons are without effect since the first summons is accepted as service, in absence of other statutory procedure such practice serves the purpose of providing the secretary of state with information and indicates plaintiff's diligence or lack of it where the first effort to provide defendant's address is unsuccessful. Vance v. Blegan, 225 Tenn. 282, 466 S.W.2d 223, 1971 Tenn. LEXIS 301 (1971).

Collateral References. 8 Am. Jur. 2d Automobiles §§ 847, 849-871; 62 Am. Jur. 2d Process §§ 75-79.

72 C.J.S. Process § 50.

Autos 235.

20-2-206. Evidence of service through secretary of state.

The original process, endorsed as provided in this section, an affidavit of the secretary of state setting forth the secretary of state's compliance with the requirements of § 20-2-205, and the return receipt signed by, or duly in behalf of, the defendant, shall be attached together and sent to and filed by the clerk. There shall be endorsed on the original process by the secretary of state over the secretary of state's signature the date of the secretary of state's mailing the certified copy to the defendant and the date on which the secretary of state received the return receipt of the defendant. Thereupon service on the defendant shall be consummate. An act of a deputy or regular assistant of the secretary of state in the secretary of state's behalf shall be deemed the equivalent of the act of the secretary of state.

Code 1932, § 8673; T.C.A. (orig. ed.), § 20-227.

Cross-References. Certified mail in lieu of registered mail, § 1-3-111.

Rule Reference. This section is referred to in the Advisory Commission Comments under Tenn. R. Civ. P. 4.

Textbooks. Tennessee Jurisprudence, 4 Tenn. Juris., Automobiles, § 36.

Law Reviews.

Civil Procedure — Carr v. Borchers: Tennessee's Nonresident Motorist Statute Revisited, 22 Mem. St. U.L. Rev. 357 (1992).

Cited: Thomas v. Altsheler, 191 Tenn. 640, 235 S.W.2d 806, 1951 Tenn. LEXIS 368 (1951); Keeble v. Loudon Utilities, 212 Tenn. 483, 370 S.W.2d 531, 1963 Tenn. LEXIS 442 (1963); McDavid v. James, 64 F.R.D. 182, 1973 U.S. Dist. LEXIS 10620 (D. Tenn. 1973).

NOTES TO DECISIONS

1. Return Receipt.

In diversity action resulting from motor vehicle accident, federal district court did not acquire personal jurisdiction over defendant where defendant was not properly served by registered mail by secretary of state, as return receipt was signed by no one, and letter returned by postal authorities stamped “Moved — Left No Forwarding Address.” Yox v. Durgan, 298 F. Supp. 1365, 1969 U.S. Dist. LEXIS 9057 (E.D. Tenn. 1969); U.S. Metal Prods. Co. v. United States, 302 F. Supp. 1263, 1969 U.S. Dist. LEXIS 10613 (E.D.N.Y. 1969).

Collateral References. Process 127-150.

20-2-207. Continuances after service by agent.

The court of action shall grant such continuance or continuances as may be necessary or proper to afford the defendant so served reasonable opportunity to make defense.

Code 1932, § 8674; T.C.A. (orig. ed.), § 20-228.

20-2-208. Actions against steamboat owners.

  1. All persons, resident and nonresident of this state, running and operating steamboats in any of the rivers in or bordering on this state as common carriers, may be sued in law or equity in any county where the boat or boats of such person lands, for any cause of action or suit growing out of or connected with the business carried on or done by or in connection with the running and use of the boat or boats.
  2. Service of process on any captain or clerk of any boat of such person, whether it is the particular boat complained of or immediately connected with the transaction out of which the cause of suit or action originates or not, shall be sufficient to bring such person into court.

Acts 1881, ch. 66, § 1; Shan., §§ 4547, 4548; mod. Code 1932, §§ 8680, 8681; T.C.A. (orig. ed.), § 20-229.

Law Reviews.

Constitutional Law — Service of Process Upon Unincorporated Nonresident Defendant, 22 Tenn. L. Rev. 1057.

The Future of General Jurisdiction in Tennessee, 27 U. Mem. L. Rev. 559 (1997).

Cited: American Federation of Musicians v. Stein, 213 F.2d 679, 1954 U.S. App. LEXIS 3801 (6th Cir. Tenn. 1954).

NOTES TO DECISIONS

1. Jurisdiction.

Where deckhand allegedly suffered personal injuries on vessel of Minnesota towing corporation operating to Mississippi River and under the facts as alleged, it could not be said that the injuries occurred in any particular jurisdiction and corporation's vessels did not regularly stop at Tennessee ports and service in Tennessee under this section was questionable, corporation was not entitled to have suit in Minnesota dismissed under doctrine of forum non conveniens on ground that plaintiff's hospital records were in Tennessee, since doctrine presupposes that two forums are open to plaintiff. Hill v. Upper Miss. Towing Corp., 252 Minn. 165, 89 N.W.2d 654, 1958 Minn. LEXIS 598 (1958).

Collateral References. 13 C.J.S. Carriers §§ 242, 534.

20-2-209. Operation of watercraft in state as appointment of agent for process.

  1. The operation, navigation or maintenance by a nonresident or nonresidents of a boat, ship, barge or other watercraft in this state, either in person or through others, and the acceptance thereby by the nonresident or nonresidents of the protection of the laws of this state for the watercraft, or the operation, navigation or maintenance by a nonresident or nonresidents of a boat, ship, barge or other watercraft in this state, either in person or through others, is deemed thereby to constitute an appointment by each such nonresident of the secretary of state, or some other person in the secretary of state's office during the secretary of state's absence whom the secretary of state may designate, to be the true and lawful agent of each such nonresident for service of process, upon whom may be served all lawful process in any suit, action or proceeding against the nonresident or nonresidents growing out of any accident or injury in which the nonresident or nonresidents may be involved while, either in person or through others, operating, navigating or maintaining a boat, ship, barge or other watercraft in this state; and the acceptance or the operating, navigating or maintaining in this state of the watercraft shall be a signification of each nonresident's agreement that any such process against each nonresident that is so served shall be of the same legal force and effect as if served on each nonresident personally.
  2. The agency of the secretary of state to accept service of process shall continue for a period of one (1) year from the date of any accident or injury and shall not be revoked by death of the nonresident within the period of one (1) year.

Acts 1961, ch. 246, § 1; T.C.A., § 20-230.

Compiler's Notes. Tenn. R. Civ. P. 4.04 wherein a copy of complaint must be forwarded, seems to supplement this section.

Cross-References. Process, Tenn. R. Civil P. 4.

Law Reviews.

Procedure and Evidence — 1961 Tennessee Survey (Edmund M. Morgan), 14 Vand. L. Rev. 1353.

The Future of General Jurisdiction in Tennessee, 27 U. Mem. L. Rev. 559 (1997).

Collateral References.

Validity of service of process on nonresident owner of watercraft, under state “long-arm” statutes. 99 A.L.R.2d 287.

Process 58, 80.

20-2-210. Death of party after appointment of agent.

  1. The nonresident who, under § 20-2-209, is deemed to have appointed the secretary of state as the nonresident's agent for process, shall further be deemed to have consented that the appointment of the secretary of state as the nonresident's agent for the purposes set forth in § 20-2-209 shall be irrevocable and binding upon the nonresident's executor or administrator.
  2. Where such person has died prior to the commencement of an action brought pursuant to § 20-2-209, this section and §§  20-2-211 — 20-2-213, service of process shall be made on the executor or administrator of the decedent in the same manner as provided for an action commenced while the person is living.
  3. Where an action has been duly commenced under § 20-2-209, this section and §§  20-2-211 — 20-2-213 by service upon a defendant who dies thereafter, the court shall allow the action to be continued against the defendant's executor or administrator upon motion, with such notice as the court deems proper.

Acts 1961, ch. 246, § 2; T.C.A., § 20-231.

Law Reviews.

Conflict of Laws — 1961 Tennessee Survey (Elliott E. Cheatham), 14 Vand. L. Rev. 1162.

20-2-211. Manner of service on secretary of state.

The manner of service of process under §§ 20-2-209, 20-2-210, this section and §§ 20-2-212 and 20-2-213 shall be the same as is provided by § 20-2-205, and the manner of evidencing such service through the secretary of state shall be the same as provided in § 20-2-206.

Acts 1961, ch. 246, § 3; T.C.A., 20-232.

Rule Reference. This section is referred to in the Advisory Commission Comments under Tenn. R. Civ. P. 4 and 4B.

20-2-212. Continuances.

The court of action shall grant such continuance or continuances as may be necessary or proper to afford the defendant so served reasonable opportunity to make defense.

Acts 1961, ch. 246, § 4; T.C.A., § 20-233.

20-2-213. Other methods of service unaffected.

Nothing in §§ 20-2-20920-2-212 and this section shall be construed as affecting other methods of process against nonresidents as provided by existing laws.

Acts 1961, ch. 246, § 5; T.C.A., § 20-234.

20-2-214. Jurisdiction of persons unavailable to personal service in state — Classes of actions to which applicable.

  1. Persons who are nonresidents of this state and residents of this state who are outside the state and cannot be personally served with process within this state are subject to the jurisdiction of the courts of this state as to any action or claim for relief arising from:
    1. The transaction of any business within this state;
    2. Any tortious act or omission within this state;
    3. The ownership or possession of any interest in property located within this state;
    4. Entering into any contract of insurance, indemnity or guaranty covering any person, property or risk located within this state at the time of contracting;
    5. Entering into a contract for services to be rendered or for materials to be furnished in this state;
    6. Any basis not inconsistent with the constitution of this state or of the United States;
    7. Any action of divorce, annulment or separate maintenance where the parties lived in the marital relationship within this state, notwithstanding one party's subsequent departure from this state, as to all obligations arising for alimony, custody, child support or marital dissolution agreement, if the other party to the marital relationship continues to reside in this state.
  2. As used in this section, “person” includes corporations and all other entities that would be subject to service of process if present in this state.
  3. Any such person shall be deemed to have submitted to the jurisdiction of this state who acts in the manner described in subsection (a) through an agent or personal representative.

Acts 1965, ch. 67, § 1; 1972, ch. 689, § 1; 1975, ch. 177, § 1; 1978, ch. 715, § 1; T.C.A., § 20-235; Acts 1987, ch. 390, § 1.

Compiler's Notes. Tenn. R. Civ. P. 4.04 wherein a copy of complaint must be forwarded, seems to supplement this section.

Cross-References. Foreign corporations subject to actions, § 20-2-201.

Process, Tenn. R. Civ. P. 4.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 513.

Tennessee Forms (Robinson, Ramsey and Harwell), No. 1-8-4.1.

Tennessee Jurisprudence, 3 Tenn. Juris., Appearances, § 7; 6 Tenn. Juris., Constitutional Law, § 83; 7 Tenn. Juris., Corporations, § 118; 17 Tenn. Juris., Jurisdiction, §§ 2, 5, 13; 17 Tenn. Juris., Justices of Peace and General Sessions Courts, § 13; 21 Tenn. Juris., Process, §§ 6-9.

Law Reviews.

A Tale of Two Jurisdictions, 68 Vand. L. Rev. 501 (2015).

Rethinking Conspiracy Jurisdiction in Light of Stream of Commerce and Effects-Based Jurisdictional Principles, 71 Vand. L. Rev. 1333 (May 2018).

Aligning Law and Forum: The Home Court Advantage, 81 Tenn. L. Rev. 1 (2013).

Constitutional Law — Personal Jurisdiction — A State's Ability to Exercise Jurisdiction over a Foreign Manufacturer, 81 Tenn. L. Rev. 339 (2014).

Civil Procedure — Long Arm Statute — Davenport v. State Farm Mut. Auto. Ins. Co.: Has Tennessee Fully Embraced the “Minimum Contacts” Test?, 19 Mem. St. U.L. Rev. 117 (1989).

Civil Procedure — The Conspiracy Theory of Personal Jurisdiction — Imputation of Jurisdictional Contacts to Co-Conspirators, 69 Tenn. L. Rev. 221 (2001).

Federal Civil Procedure — Personal Jurisdiction — General Jurisdiction Over Foreign Corporations Based Upon Domestic Subsidiary Activity Within The Forum State, 82 Tenn. L. Rev. 461 (2015).

Service of Process Upon Foreign Defendants Under the Hague Convention (Michael L. Silhol) 28 No. 5 Tenn. B.J. 22 (1992).

The Future of General Jurisdiction in Tennessee, 27 U. Mem. L. Rev. 559 (1997).

The Long-Arm Wrestle: Personal Jurisdiction in Tennessee (Steven E. Winn), 56 Tenn. L. Rev. 557 (1989).

Torts — Volz v. Ledes: The Tennessee Supreme Court Abolishes Joint and Several Liability in Medical Malpractice Cases Involving Multiple Tortfeasors Whose Separate Acts Cause Indivisible Injury, 26 U. Mem. L. Rev. 1555 (1996).

Cited: Arthur K. Du Grenier, Inc. v. Stone, 220 Tenn. 255, 415 S.W.2d 883, 1967 Tenn. LEXIS 405 (1967); Allen & Bean, Inc. v. Miller, 61 Tenn. App. 373, 454 S.W.2d 367, 1970 Tenn. App. LEXIS 296 (Tenn. Ct. App. 1970); Southern Foundry Supply, Inc. v. Spang & Co., 225 Tenn. 447, 470 S.W.2d 187, 1971 Tenn. LEXIS 313 (1971); Tennessee Board of Dispensing Opticians v. Roy H. Park, Broadcasting of Tennessee, Inc., 512 S.W.2d 579, 1973 Tenn. App. LEXIS 262 (Tenn. Ct. App. 1973); Tennessee Valley Authority v. Mason Coal, Inc., 384 F. Supp. 1107, 1974 U.S. Dist. LEXIS 12003 (E.D. Tenn. 1974); Turner v. Nationwide Auto Transporters, Inc., 507 F. Supp. 396, 1980 U.S. Dist. LEXIS 16249 (E.D. Tenn. 1980); In re G. Weeks Secur., Inc., 3 B.R. 215, 1980 Bankr. LEXIS 5467 (Bankr. W.D. Tenn. 1980); In re G. Weeks Secur., Inc., 5 B.R. 220, 1980 Bankr. LEXIS 4845 (Bankr. W.D. Tenn. 1980); Williams v. Williams, 621 S.W.2d 567, 1981 Tenn. App. LEXIS 526 (Tenn. Ct. App. 1981); Chattanooga Corp. v. Klingler, 704 F.2d 903, 1983 U.S. App. LEXIS 28891 (6th Cir. Tenn. 1983); Mitchell v. White Motor Credit Corp., 627 F. Supp. 1241, 1986 U.S. Dist. LEXIS 30042 (M.D. Tenn. 1986); Local 670, United Rubber v. Int'l Union, United Rubber, 822 F.2d 613, 1987 U.S. App. LEXIS 8125 (6th Cir. Tenn. 1987); Third Nat'l Bank v. Wedge Group, Inc., 882 F.2d 1087, 1989 U.S. App. LEXIS 12198 (6th Cir. Tenn. 1989); Hospital Underwriting Group v. Summit Health, 719 F. Supp. 627, 1989 U.S. Dist. LEXIS 9342 (M.D. Tenn. 1989); MCA Records v. Highland Music, 844 F. Supp. 1201, 1993 U.S. Dist. LEXIS 19441 (M.D. Tenn. 1993); MCA Records v. Highland Music, 844 F. Supp. 1201, 1993 U.S. Dist. LEXIS 19441 (M.D. Tenn. 1993); Shoney's, Inc. v. Chic Can Enters., 922 S.W.2d 530, 1995 Tenn. App. LEXIS 794 (Tenn. Ct. App. 1995); Southern Sys. v. Torrid Oven Ltd., 58 F. Supp. 2d 843, 1999 U.S. Dist. LEXIS 16913 (W.D. Tenn. 1999); First Tenn. Nat'l Corp. v. Horizon Nat'l Bank, 225 F. Supp. 2d 816, 2002 U.S. Dist. LEXIS 19972 (W.D. Tenn. 2002).

NOTES TO DECISIONS

1. Constitutionality.

This section is constitutional. Darby v. Superior Supply Co., 224 Tenn. 540, 458 S.W.2d 423, 1970 Tenn. LEXIS 355 (1970).

Where a foreign corporation negotiated a demise charter agreement for a vessel owned by a Tennessee corporation, but never physically present in Tennessee, the contract being negotiated solely by telephone calls and correspondence and no representative of the foreign corporation ever entered Tennessee, it was held that, in a suit by the Tennessee corporation under the charter agreement, service of process on the foreign corporation pursuant to this section met the procedural due process of law requirements of the U. S. Const. amend. 14 under the established criteria that the foreign corporation: (1) Purposefully availed itself of the privilege of acting in Tennessee, or causing a consequence in Tennessee; (2) The cause of action arose from the foreign corporation's activities in Tennessee; and (3) the acts of, or consequences caused by, the foreign corporation had a sufficiently substantial connection with Tennessee to make the exercise of jurisdiction over it, under the Tennessee “long arm” statute, reasonable. American Marine & Machinery Co. v. Consumers' Gas Co., 379 F. Supp. 82, 1973 U.S. Dist. LEXIS 11851 (M.D. Tenn. 1973), aff'd, 495 F.2d 1373 (6th Cir. 1974); Inter-City Prods. Corp v. Willey, 149 F.R.D. 563, 1993 U.S. Dist. LEXIS 14851 (M.D. Tenn. 1993); Southland Express v. Scrap Metal Buyers, 895 S.W.2d 335, 1994 Tenn. App. LEXIS 509 (Tenn. Ct. App. 1994).

Where promissory notes bore the notation “Nashville, Tenn.” in their headings and specifically stated on their face that they were payable in Nashville, but were executed and guaranteed outside Tennessee, service of process on the nonresident makers and guarantors under the “long arm statute” in a suit by a holder in due course did not offend traditional notions of fair play and substantial justice and was not a denial of procedural due process of law under U. S. Const., amend. 14, § 1. Third Nat'l Bank v. Hardi--Gardens Supply of Ill., Inc., 380 F. Supp. 930, 1974 U.S. Dist. LEXIS 7626 (M.D. Tenn. 1974).

Under federal constitutional requirements, jurisdiction over a foreign corporation may be sustained only if the corporation has certain minimum contacts with the forum such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice, and there is no invariable rule for determining whether sufficient minimum contacts exist. Ladd v. KLM Royal Dutch Airlines, 456 F. Supp. 422, 1978 U.S. Dist. LEXIS 15743 (S.D.N.Y. 1978).

A court's exercise of personal jurisdiction over a nonresident complies with this section and with due process where the nonresident has purposefully availed himself of the privilege of acting or causing a consequence in Tennessee where under ordinary circumstances the cause of action arose from the defendant's activities in the state and where the action or the consequences caused by the defendant have a substantial enough connection with Tennessee to make its exercise of jurisdiction reasonable. Carborundum Co., Pollution Control Div. v. Bay Fabricators, Inc., 461 F. Supp. 437, 1978 U.S. Dist. LEXIS 14735 (E.D. Tenn. 1978).

Federal court avoided construing the constitutional limits of “long arm” jurisdiction by transferring an action pursuant to 28 U.S.C. § 1404(a). Blue Diamond Coal Co. v. Michigan Sugar Co., 463 F. Supp. 14, 1978 U.S. Dist. LEXIS 19158 (E.D. Tenn. 1978).

This section confers jurisdiction to the full extent allowable under the due process clause of U.S. Const. amend. 14. Hi Fi Corner, Inc. v. Inflight Cinema International, Inc., 505 F. Supp. 12, 1980 U.S. Dist. LEXIS 15874 (M.D. Tenn. 1980); Shelby Mut. Ins. Co. v. Moore, 645 S.W.2d 242, 1981 Tenn. App. LEXIS 603 (Tenn. Ct. App. 1981).

The Tennessee long-arm statute extends the jurisdiction of Tennessee courts to the full extent of due process. United States Fidelity & Guaranty Co. v. Mayberry, 789 F. Supp. 901, 1992 U.S. Dist. LEXIS 5648 (E.D. Tenn. 1992); Inter-City Prods. Corp v. Willey, 149 F.R.D. 563, 1993 U.S. Dist. LEXIS 14851 (M.D. Tenn. 1993).

When a state's long arm statute authorizes the assertion of personal jurisdiction to the limits of federal due process, as does T.C.A. § 20-2-214, the issue becomes simply whether the trial court's exercise of personal jurisdiction over the defendant meets due process requirements. Manufacturers Consolidation Serv., Inc. v. Rodell, 42 S.W.3d 846, 2000 Tenn. App. LEXIS 148 (Tenn. Ct. App. 2000).

T.C.A. § 20-2-214(a)(6) has been interpreted to extend to the limits of personal jurisdiction imposed by the due process clause of the United States constitution.Bridgeport Music v. Agarita Music, 182 F. Supp. 2d 653, 2002 U.S. Dist. LEXIS 1775 (M.D. Tenn. 2002).

2. Fair Warning of Possible Subjection to Jurisdiction.

The modern approach to in personam jurisdiction is based on the protection the due process clause provides to an individual's liberty interest in having fair warning that a particular activity may subject him to the jurisdiction of a foreign sovereign. S & S Screw Machine Co. v. Cosa Corp., 647 F. Supp. 600, 1986 U.S. Dist. LEXIS 18965 (M.D. Tenn. 1986).

The due process clause requires fair warning that a particular activity may subject a defendant to the jurisdiction of a foreign sovereign. United Agric. Servs., Inc. v. Scherer, 17 S.W.3d 252, 1999 Tenn. App. LEXIS 613 (Tenn. Ct. App. 1999).

Employee's consent to the choice of law provisions did not amount to consent to personal jurisdiction in Tennessee, and the provisions did not provide fair warning that the employee should anticipate being haled into a Tennessee court; the employee's activities were directed only at Texas residents, and the only activity directed at any Tennessee resident consisted of communication with other employees. Accredo Health v. Patterson, — S.W.3d —, 2007 Tenn. App. LEXIS 499 (Tenn. Ct. App. Aug. 1, 2007).

Exercise of jurisdiction over a Texas energy company was fair and reasonable because the energy company did not make the courts aware of any substantive social policies of Texas that would be affected by a Tennessee court's exercise of jurisdiction. Crouch Ry. Consulting, LLC v. LS Energy Fabrication, LLC, — S.W.3d —, 2019 Tenn. App. LEXIS 212 (Tenn. Ct. App. Apr. 30, 2019).

3. Transacting Business in Tennessee.

A Wisconsin corporation which negotiated a contract with a Tennessee corporation through an agent in Tennessee “transacted business within the state” sufficiently to give Tennessee courts jurisdiction of a suit by the Tennessee corporation for breach of such contract under service of process obtained pursuant to this act. Temco, Inc. v. General Screw Products, Inc., 261 F. Supp. 793, 1966 U.S. Dist. LEXIS 7977 (M.D. Tenn. 1966).

A nonresident corporation which licensed a Tennessee manufacturer whose only factory was in Tennessee to manufacture on a royalty basis products for which the nonresident held patents did business in Tennessee as the term is used in this section so as to make this act applicable to an action involving such license even though the contract was executed in New York. Southern Machine Co. v. Mohasco Industries, Inc., 401 F.2d 374, 1968 U.S. App. LEXIS 5493 (6th Cir. Tenn. 1968), superseded by statute as stated in, UPS v. Buck Fever Racing, — S.W.2d —, 1996 Tenn. App. LEXIS 848 (Tenn. Ct. App. Dec. 24, 1996), superseded by statute as stated in, Tomlin v. Collegiate Techs., Inc., — S.W.3d —, 1999 Tenn. App. LEXIS 781 (Tenn. Ct. App. Nov. 30, 1999), superseded by statute as stated in, Progeny Mktg. v. Farmers & Merchs. Bank, — S.W.3d —, 2005 Tenn. App. LEXIS 208 (Tenn. Ct. App. Apr. 7, 2005).

Alleged directors of automobile club, whose activities with state of Tennessee included their execution, along with others, of an application for a certificate of authority to operate an automobile club or association on behalf of the club and filing an application with the insurance branch of the department of insurance and banking (now department of commerce and insurance), were subject to jurisdiction of Tennessee federal district court under §§ 20-2-21420-2-219 in action for damages by purchaser of Tennessee franchise based on alleged misrepresentations made to him in relation to franchise granted to him by the club. Myers v. United States Auto. Club, Inc., 281 F. Supp. 48, 1968 U.S. Dist. LEXIS 8497 (E.D. Tenn. 1968).

Tennessee courts are without jurisdiction where, with respect to a suit for fraud in the sale of stock, it appears that all meetings and negotiations prior to the actual sale took place outside Tennessee and where the corporation involved was not a Tennessee corporation and did not have real property in the state and where the seller of the stock was not a resident of Tennessee. Wynn v. Buttram, 310 F. Supp. 125, 1969 U.S. Dist. LEXIS 13629 (D. Tenn. 1969).

The facts that defendant advertised his plane in a magazine circulated in the state, called plaintiff in the state and sent pictures to plaintiff in the state does not establish a sufficient basis for in personam jurisdiction against the defendant with respect to suit for damages resulting from the crash of the plane in Tennessee after its purchase by plaintiff. Beal v. Caldwell, 322 F. Supp. 1151, 1970 U.S. Dist. LEXIS 9385 (E.D. Tenn. 1970).

Where nonresident individual, without entering state, consummated retail purchase of small amount of lumber for his personal use by interstate mail and telephone calls, which purchase involved no special manufacturing operations and where only activity of purchaser in the state was acceptance of lumber on board truck that he sent to seller's mill in the state, activities were not sufficient to permit valid service of process under Tennessee long arm statute. Darby v. Superior Supply Co., 224 Tenn. 540, 458 S.W.2d 423, 1970 Tenn. LEXIS 355 (1970).

Where there was nothing in record to show any presence or activity in state by foreign corporation or its representative in connection with alleged conspiracy to force complainants to sell their business, purported service under this section was not valid. Budget Rent-A-Car, Inc. v. Car Services, Inc., 225 Tenn. 342, 469 S.W.2d 360, 1971 Tenn. LEXIS 348 (1971).

Where appellant would not have purchased the truck without modifications, appellee's conduct had a realistic impact on the state's commerce when appellee agreed to make the modifications. King v. Hailey Chevrolet Co., 462 F.2d 63, 1972 U.S. App. LEXIS 8934 (6th Cir. Tenn. 1972).

Where New York defendant purchased chairs from catalog and had no agents or other business connections in Tennessee and all negotiations were in New York; defendant did not have minimal contacts with Tennessee to come within this section. Garrett v. R. H. Macy & Co., 360 F. Supp. 872, 1972 U.S. Dist. LEXIS 12643 (E.D. Tenn. 1972).

Where contract between out-of-state cotton grower and farmer's association was not agency agreement and sale of crop to association did not occur in Tennessee, in personam jurisdiction was precluded as cotton grower could not reasonably assume that future sale by his nonresident vendee would make him subject to jurisdiction where remote vendee was located. W. B. Dunavant & Co. v. Perkins, 498 S.W.2d 905, 1973 Tenn. LEXIS 464 (Tenn. 1973).

Where a foreign corporation was the sole importer of a particular make of motorcycle for distribution throughout the United States and one of these cycles was sold in Tennessee by an independent distributor, the importing corporation neither directly distributing motorcycles in nor doing business in Tennessee, it was held that the Tennessee long arm statute, § 20-2-214 extends to the limits of the due process clause of the U. S. Const. amend. 14, and that, in a suit by an injured cyclist for injuries sustained in Tennessee due to a defective motorcycle imported by the foreign corporation, the corporation, by having set in motion in another state events likely to result in injury to a person and property in Tennessee, subjected itself to in personam jurisdiction and service of process under the Tennessee long arm statute. Walker v. Kawasaki Motors Corp., 62 F.R.D. 607, 1973 U.S. Dist. LEXIS 11321 (D. Tenn. 1973).

Fact that product is brought into the state after purchase in another state, to which transaction manufacturer is not a direct party, does not insulate manufacturer from substituted service of process. McCoy v. Wean United, Inc., 67 F.R.D. 491, 1973 U.S. Dist. LEXIS 10477 (D. Tenn. 1973).

In a diversity suit between Tennessee residents and an Australian airline to recover for financial loss and emotional distress allegedly arising out of the actions of the airline's agents outside the United States, the federal court sitting in Tennessee could exercise in personam jurisdiction over the airline through the use of the long arm statute where the quantity and contacts of the airline with Tennessee, the nature and quality of the contacts and their connection with the cause of action were sufficient to meet the “minimum contacts” test. Gullett v. Qantas Airways, Ltd., 417 F. Supp. 490, 1975 U.S. Dist. LEXIS 12292 (M.D. Tenn. 1975).

Where Arkansas owners employed a Tennessee architect and a Tennessee builder for the construction of a residence in Arkansas, but had no direct dealings with builder except in Arkansas, and where the architect did work in Tennessee with the builder on behalf of the Arkansas owners but could not be considered their “agent” for the purpose of establishing jurisdiction, it was not reasonable for Tennessee courts to exercise jurisdiction under this section. Pickens v. Hess, 573 F.2d 380, 1978 U.S. App. LEXIS 11758 (6th Cir. Tenn. 1978).

The fact that the cause of action is entirely unrelated to the corporation's activities within the state does not preclude a finding of jurisdiction. Ladd v. KLM Royal Dutch Airlines, 456 F. Supp. 422, 1978 U.S. Dist. LEXIS 15743 (S.D.N.Y. 1978).

Fact that airline sought in a continuous and systematic manner, including but not limited to the frequent presence of its own sales representatives in the state, to benefit from the sale of tickets to Tennessee residents constituted sufficient minimum contacts with Tennessee. Ladd v. KLM Royal Dutch Airlines, 456 F. Supp. 422, 1978 U.S. Dist. LEXIS 15743 (S.D.N.Y. 1978).

Tennessee may not constitutionally acquire personal jurisdiction over a party without that party's having had certain minimal contacts with the state; however, the causing of a consequence in the forum state by the defendant can satisfy the requirements of the minimum contacts test. Where a corporation causes to be set in motion events in one state that are likely to and do result in injury to person and property in another state, the corporation is amenable to service of process pursuant to the long arm statute of the state wherein injury occurs. Metcalfe v. Cessna Aircraft Corp., 458 F. Supp. 841, 1977 U.S. Dist. LEXIS 15090 (E.D. Tenn. 1977); Cannon v. Metcalfe, 458 F. Supp. 843, 1977 U.S. Dist. LEXIS 15065 (E.D. Tenn. 1977).

Personal jurisdiction over nonresident defendants was properly exercised where their activities, many of which occurred in Tennessee, consisted of a deliberate course of conduct directed specifically toward a Tennessee resident by which the defendants sought and achieved a continuing business relationship with that resident. Carborundum Co., Pollution Control Div. v. Bay Fabricators, Inc., 461 F. Supp. 437, 1978 U.S. Dist. LEXIS 14735 (E.D. Tenn. 1978).

Where the Tennessee contacts consisted of the execution of a lease contract at the lessee's office in Tennessee, the receipt of a commission by that lessee and the procurement of an insurance policy on the leased airplane through a Tennessee insurance agent, and where the parties in the suit were the estate of an Arkansas and Indiana and Florida business entities, the necessary minimum contacts required for in personam jurisdiction over those nonresident defendants were not reached. Continental Leasing Corp. v. Economy Leasing Co., 564 S.W.2d 956, 1977 Tenn. App. LEXIS 272 (Tenn. Ct. App. 1977).

When a corporation purposefully availed itself of profit making activity by promoting the sale of its products through unsolicited advertisements to potential Tennessee purchasers and the cause of action arose from these activities, there was sufficient connection with the state to compel the corporation to come to Tennessee to defend against such cause of action. Warren v. Dynamics Health Equipment Mfg. Co., 483 F. Supp. 788, 1980 U.S. Dist. LEXIS 10014 (M.D. Tenn. 1980).

When the officers of a defendant corporation may have communicated by telephone and through the mails but were never physically present in Tennessee engaging in activities from which the cause of action arose, there was insufficient contact with the state to obtain personal jurisdiction over the individual officers under this statute. Warren v. Dynamics Health Equipment Mfg. Co., 483 F. Supp. 788, 1980 U.S. Dist. LEXIS 10014 (M.D. Tenn. 1980).

The factors used in weighing minimum contacts are quantity, quality and nature, the source and connection of the cause of action with those contacts, interest of the forum state, and convenience, but each and every factor is not required to be present for minimum contacts to be found to exist; rather, a weighing of these factors must lead the court to conclude that the exercise of personal jurisdiction does not offend traditional notions of fair play and substantial justice. Hi Fi Corner, Inc. v. Inflight Cinema International, Inc., 505 F. Supp. 12, 1980 U.S. Dist. LEXIS 15874 (M.D. Tenn. 1980).

Defendant's use of independent contractors did not alter the basic existence of defendant's involvement in, and its pecuniary benefit from full exploitation of, Tennessee's business community. Hi Fi Corner, Inc. v. Inflight Cinema International, Inc., 505 F. Supp. 12, 1980 U.S. Dist. LEXIS 15874 (M.D. Tenn. 1980).

T.C.A. § 20-2-214(a)(6) changed the long-arm statute from a single act statute to a “minimum contacts” statute which expanded the jurisdiction of Tennessee courts to the full limit allowed by due process. Masada Inv. Corp. v. Allen, 697 S.W.2d 332, 1985 Tenn. LEXIS 622 (Tenn. 1985).

Exercise of personal jurisdiction over Montana common carrier was proper, where, by seeking and obtaining authorization to conduct business on the interstate and highways of Tennessee and by appointing an agent for the service of process in Tennessee, carrier purposefully availed itself of the privilege of conducting business in Tennessee and established minimum contacts with Tennessee. Maunula v. Westran, Inc., 845 F. Supp. 512, 1994 U.S. Dist. LEXIS 2357 (M.D. Tenn. 1994).

The general formulation of the minimum contacts rule is that a nonresident defendant must have “minimum contacts” with Tennessee such that exercising jurisdiction would not offend “traditional notions of fair play and substantial justice.” Frumkin v. First Union Nat'l Bank (In re Will of Frumkin), 874 S.W.2d 40, 1993 Tenn. App. LEXIS 691 (Tenn. Ct. App. 1993), rehearing denied, In re Trust U/W of Frumkin, — S.W.2d —, 1993 Tenn. App. LEXIS 758 (Tenn. Ct. App. Dec. 10, 1993), appeal denied, Frumkin v. First Union Nat'l Bank, 1994 Tenn. LEXIS 100 (Tenn. Mar. 28, 1994).

Even a single act by defendant directed toward Tennessee that gives rise to a cause of action can support a finding of minimum contacts sufficient to exercise personal jurisdiction without offending due process. Neal v. Janssen, 270 F.3d 328, 2001 FED App. 379P, 2001 U.S. App. LEXIS 22695 (6th Cir. Tenn. 2001).

The acts of making phone calls and sending facsimiles into the forum, standing alone, may be sufficient to confer jurisdiction on the foreign defendant where the phone calls and faxes form the bases for the action. Neal v. Janssen, 270 F.3d 328, 2001 FED App. 379P, 2001 U.S. App. LEXIS 22695 (6th Cir. Tenn. 2001).

When a foreign defendant purposefully directs communications into the forum that cause injury within the forum, and those communications form the “heart” of the cause of action, personal jurisdiction may be present over that defendant without defendant's presence in the state. Neal v. Janssen, 270 F.3d 328, 2001 FED App. 379P, 2001 U.S. App. LEXIS 22695 (6th Cir. Tenn. 2001).

Personal jurisdiction over defendants existed because they purposefully availed themselves of the privilege of acting in Tennessee by prosecuting the protracted anti-trust litigation in Tennessee. Glassman, Edwards, Wade & Wyatt, P.C. v. Wolf Haldenstein Adler Freeman & Herz, LLP, 601 F. Supp. 2d 991, 2009 U.S. Dist. LEXIS 35957 (W.D. Tenn. Mar. 10, 2009).

4. —Minimum Contacts Sufficient.

Minimum contacts were held sufficient to establish the transaction of business in Tennessee in the following cases. Hi Fi Corner, Inc. v. Inflight Cinema International, Inc., 505 F. Supp. 12, 1980 U.S. Dist. LEXIS 15874 (M.D. Tenn. 1980); Gaston v. Aquaslide 'N' Dive Corp., 487 F. Supp. 16, 1980 U.S. Dist. LEXIS 10653 (E.D. Tenn. 1980); Nicholstone Book Bindery, Inc. v. Chelsea House Publishers, 621 S.W.2d 560, 1981 Tenn. LEXIS 487 (Tenn. 1981), cert. denied, Chelsea House Publishers, etc. v. Nicholstone Book Bindery, Inc., 455 U.S. 994, 102 S. Ct. 1623, 71 L. Ed. 2d 856, 1982 U.S. LEXIS 1195 (1982); McCombs v. Cerco Rentals, 622 S.W.2d 822, 1981 Tenn. App. LEXIS 480 (Tenn. Ct. App. 1981); Inter-City Prods. Corp v. Willey, 149 F.R.D. 563, 1993 U.S. Dist. LEXIS 14851 (M.D. Tenn. 1993); United Agric. Servs., Inc. v. Scherer, 17 S.W.3d 252, 1999 Tenn. App. LEXIS 613 (Tenn. Ct. App. 1999).

The absence of physical contacts will not defeat in personam jurisdiction where a commercial actor purposefully directs his activities toward citizens of the forum state and litigation results from injuries arising out of or relating to those activities. In such a case, the defendant's conduct and connection with the forum state are such that he should reasonably anticipate being haled into court there. Masada Inv. Corp. v. Allen, 697 S.W.2d 332, 1985 Tenn. LEXIS 622 (Tenn. 1985).

Under the Mahasco  test the plaintiffs must show that the following elements have been satisfied as to each defendant before the court may exercise personal jurisdiction over them: First, the defendant must purposefully avail himself of the privilege of acting in the forum state or causing a consequence in the forum state. Second, the cause of action must arise from the defendant's activities there. Finally, the acts of the defendant or consequences caused by the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable. Cummins v. K-Mart, Inc., 635 F. Supp. 122, 1986 U.S. Dist. LEXIS 26834 (E.D. Tenn. 1986).

The court found sufficient minimum contacts under the three part Mahasco  test to justify in personam jurisdiction where the Virginia corporation sold a participating interest in loans to a Tennessee corporation by telephone and completed the balance of the transaction by mail without a Virginia corporation representative going to Tennessee or vice versa. First Federal Sav. Bank v. Jefferson Sav. & Loan Asso., 640 F. Supp. 47, 1986 U.S. Dist. LEXIS 29431 (E.D. Tenn. 1986).

Under the Masada  test the three primary factors to be considered in determining whether the requisite minimum contacts are present are: (1) The quantity of the contacts; (2) their nature and quality; and (3) the source and connection of the cause of action with those contacts. Plus two lesser factors to be considered (1) the interest of the forum state; and (2) the convenience of the parties. Cummins v. K-Mart, Inc., 635 F. Supp. 122, 1986 U.S. Dist. LEXIS 26834 (E.D. Tenn. 1986).

A single act can establish a sufficient basis for personal jurisdiction if it creates a substantial connection with the forum state. S & S Screw Machine Co. v. Cosa Corp., 647 F. Supp. 600, 1986 U.S. Dist. LEXIS 18965 (M.D. Tenn. 1986).

A foreign insurer qualified to do business in the state, doing business in the state, and served with process at its Tennessee office, had sufficient minimum contacts with the state to support the exercise of personal jurisdiction in a case that did not arise in Tennessee, and that had no connection to the insurer's state contacts. Walker v. Nationwide Ins. Co., 813 S.W.2d 135, 1990 Tenn. App. LEXIS 766 (Tenn. Ct. App. 1990).

The minimum contacts required for the exercise of personal jurisdiction can be established by showing that the defendant has purposely directed his activities toward citizens of the forum state and that litigation results from injuries arising out of or relating to those activities. Davis Kidd Booksellers, Inc. v. Day-Impex, Ltd., 832 S.W.2d 572, 1992 Tenn. App. LEXIS 262 (Tenn. Ct. App. 1992).

Initial and continuing contacts between an Arkansas equipment lessee and the state of Tennessee were sufficiently related to the cause of action alleged to permit the assertion of specific in personam jurisdiction over the lessee. J.I. Case Corp. v. Williams, 832 S.W.2d 530, 1992 Tenn. LEXIS 314 (Tenn. 1992), overruled in part, Gordon v. Greenview Hosp., Inc., 300 S.W.3d 635, 2009 Tenn. LEXIS 864 (Tenn. Dec. 17, 2009).

Court had personal jurisdiction over Yugoslavian company under the elements of Southern Machine Co. v. Mohasco Industries, Inc., 401 F.2d 374, 1968 U.S. App. LEXIS 5493 (6th Cir. 1968), where the company had a thirty-year relationship placing orders and receiving product from a Tennessee wood pulp manufacturer that manufactured pulp to the company's specifications. P&G Cellulose Co. v. Viskoza-Loznica, 33 F. Supp. 2d 644, 1998 U.S. Dist. LEXIS 19981 (W.D. Tenn. 1998).

Where defendant engaged in a business transaction with plaintiffs that went on over a substantial period of time, the defendant established a relationship with plaintiffs from which the defendant hoped to profit financially and then defrauded plaintiffs, altering the amount of money to be sent to them in Tennessee, the facts were sufficient to make it reasonable for Tennessee to exercise personal jurisdiction over defendant. Neal v. Janssen, 270 F.3d 328, 2001 FED App. 379P, 2001 U.S. App. LEXIS 22695 (6th Cir. Tenn. 2001).

Dismissal for lack of jurisdiction was denied because defendants had made a purposeful choice to enter into a business relationship with plaintiff, a Tennessee corporation, signed multiple contracts to that end, the business relationship was mutually beneficial to plaintiff and defendants, and it was foreseeable that economic consequences would arise in Tennessee out of the business transaction. Floratine Prods. Group, Inc. v. Brawley, 282 F. Supp. 2d 798, 2003 U.S. Dist. LEXIS 16224 (W.D. Tenn. 2003).

Court denied a bank's motion to dismiss for lack of personal jurisdiction where it maintained more than 60 branch bank locations in the state which constituted continuous and systematic contact with the state that was sufficient to exercise general personal jurisdiction over the bank. Williams v. Firstplus Home Loan Owner Trust 1998-4, 310 F. Supp. 2d 981, 2004 U.S. Dist. LEXIS 5392 (W.D. Tenn. 2004).

Because the nonresident defendant formed a substantial business connection with the plaintiff, a Tennessee corporation, and shipped it products there, it reasonably should have anticipated the plaintiff suing it before a Tennessee court; because the cause of action arose directly from the defendant's actions affecting Tennessee, the exercise of jurisdiction over the defendant was reasonable and satisfied the requirements of the due process clause and T.C.A. § 20-2-214. Ellipsis, Inc. v. Colorworks, Inc., 329 F. Supp. 2d 962, 2004 U.S. Dist. LEXIS 15953 (W.D. Tenn. 2004).

In an action in which plaintiff, a Tennessee resident, filed suit against defendants, a Delaware corporation with its principal place of business in New York and its New York resident president, alleging claims of breach of contract, fraud, fraudulent inducement and/or promissory fraud, defendants'  Fed. R. Civ. P. 12(b)(2) motion to dismiss was denied where defendants intentionally and freely established its intention to continually solicit business from the Tennessee transportation company market and created a continuing obligation in Tennessee by agreeing to pay plaintiff, a Tennessee resident, one-half of any commission received by clients brought to the corporation by plaintiff through his work in Tennessee, and plaintiff had amply shown that the fraud at issue in the instant case “arose out of” the defendants'  activities in Tennessee. Kelly v. Int'l Capital Res., Inc., 231 F.R.D. 502, 2005 U.S. Dist. LEXIS 28547 (M.D. Tenn. 2005).

Trial court properly denied investor's motion to dismiss breach of contract action that was brought by mortgage broker because personal jurisdiction was proper in Tennessee; investor's defense of litigation in Tennessee was not an unreasonable burden. First S. Mortg. Corp. v. Weisser, — S.W.3d —, 2008 Tenn. App. LEXIS 371 (Tenn. Ct. App. June 26, 2008).

Although plaintiffs established personal jurisdiction over the international rental truck company pursuant to T.C.A. § 20-2-214, under 49 U.S.C. § 30106(a)(2) it could not be held vicariously liable for mere ownership of the truck. Hagen v. U-Haul Co., 613 F. Supp. 2d 986, 2009 U.S. Dist. LEXIS 6106 (W.D. Tenn. Jan. 28, 2009).

Chancery court erred in finding that it lacked personal jurisdiction over defendant tobacco product manufacturer because the manufacturer intentionally used a distribution system with the desired result of selling its product in all 50 states, including Tennessee, so as to support a finding that the manufacturer had minimum contacts with the State necessary to invoke the exercise of personal jurisdiction. State v. NV Sumatra Tobacco Trading Co., — S.W.3d —, 2011 Tenn. App. LEXIS 354 (Tenn. Ct. App. June 28, 2011), rehearing denied, State v. NV Sumatra Tobacco Trading Co., — S.W.3d —, 2011 Tenn. App. LEXIS 470 (Tenn. Ct. App. Aug. 24, 2011), rev'd, State v. NV Sumatra Tobacco Trading Co., 403 S.W.3d 726, 2013 Tenn. LEXIS 335 (Tenn. Mar. 28, 2013).

Manufacturer's awareness of the distribution system, through which it receives economic and legal benefits, justifies subjecting the manufacturer to the jurisdiction of every forum within its distributors'  market area; accordingly, a manufacturer that intentionally seeks out a distribution system, with the goal of national distribution, should reasonably expect that its products could be sold throughout the 50 states and that it could be subject to the jurisdiction of every state. This does not completely eradicate a foreign manufacturer's ability to insulate itself from personal jurisdiction in the state of Tennessee, however; if the foreign manufacturer attempts to preclude the distribution and sale of its products in the forum state, it may avoid the jurisdiction of the courts of that state. State v. NV Sumatra Tobacco Trading Co., — S.W.3d —, 2011 Tenn. App. LEXIS 354 (Tenn. Ct. App. June 28, 2011), rehearing denied, State v. NV Sumatra Tobacco Trading Co., — S.W.3d —, 2011 Tenn. App. LEXIS 470 (Tenn. Ct. App. Aug. 24, 2011), rev'd, State v. NV Sumatra Tobacco Trading Co., 403 S.W.3d 726, 2013 Tenn. LEXIS 335 (Tenn. Mar. 28, 2013).

5. —Contacts Insufficient.

Where plaintiff Georgia corporation's sole contact with Tennessee was an action to collect a debt against Tennessee residents, it had insufficient contacts with Tennessee to permit another Georgia corporation to intervene in the Tennessee action and assert a tort claim against plaintiff. Dalton Trailer Service, Inc. v. Ardis, 792 S.W.2d 934, 1990 Tenn. App. LEXIS 314 (Tenn. Ct. App. 1990), appeal denied, 1990 Tenn. LEXIS 273 (Tenn. July 2, 1990).

British company which signed a marketing agreement giving a Pennsylvania company the exclusive right to sell the British company's glass bulbs in the United States and Canada did not have sufficient minimum contacts with Tennessee to permit the exercise of personal jurisdiction under this section. Neither company sold the bulbs to anyone in Tennessee, advertised, solicited orders, or maintained an office or employees in Tennessee. Davis Kidd Booksellers, Inc. v. Day-Impex, Ltd., 832 S.W.2d 572, 1992 Tenn. App. LEXIS 262 (Tenn. Ct. App. 1992).

Limited purchases made by Arkansas equipment lessee in Tennessee were not enough to warrant Tennessee's assertion of general jurisdiction over lessee in a cause of action not related to those purchase transactions. J.I. Case Corp. v. Williams, 832 S.W.2d 530, 1992 Tenn. LEXIS 314 (Tenn. 1992), overruled in part, Gordon v. Greenview Hosp., Inc., 300 S.W.3d 635, 2009 Tenn. LEXIS 864 (Tenn. Dec. 17, 2009).

Written and oral communications by an out-of-state trustee with a beneficiary who was a Tennessee resident were not minimum contacts sufficient to subject the trustee to in personam jurisdiction. Frumkin v. First Union Nat'l Bank (In re Will of Frumkin), 912 S.W.2d 138, 1995 Tenn. App. LEXIS 270 (Tenn. Ct. App. 1995), appeal denied, Frumkin v. First Union Nat'l Bank (In re Trust Under/Will of Franklin), — S.W.2d —, 1995 Tenn. LEXIS 487 (Tenn. Aug. 28, 1995).

Federal court did not have personal jurisdiction over a Yugoslavian bank because the bank's issuance of a letter of credit naming a resident of Tennessee as the beneficiary did not constitute purposefully availing itself of the privileges of doing business in Tennessee. P&G Cellulose Co. v. Viskoza-Loznica, 33 F. Supp. 2d 644, 1998 U.S. Dist. LEXIS 19981 (W.D. Tenn. 1998).

Plaintiffs failed to establish that ASCAP, a performance rights organization, operated in Tennessee as a subsidiary or local representative of defendant music publishing company because ASCAP provided only licensing services to the music publishing company, and presumably its activities in this forum were the same for all of its affiliates; in order to assert an agency relationship from which jurisdiction could be imputed, plaintiffs would have had to show that ASCAP's activities were the same as the music publishing company's would be if the publishing company had a Tennessee office — i.e., ASCAP would be performing the functions of a music publishing company in Tennessee. Bridgeport Music v. Agarita Music, 182 F. Supp. 2d 653, 2002 U.S. Dist. LEXIS 1775 (M.D. Tenn. 2002).

Without a showing of any additional conduct directed towards the state, mere generalized exploitation of a copyright in the stream of commerce does not amount to purposeful availment; to find otherwise would mean that a copyright infringement defendant would be subject to personal jurisdiction in any forum in which a copy of the allegedly infringing work was ultimately sold by others without the defendant taking any further acts directed at that forum. Bridgeport Music v. Agarita Music, 182 F. Supp. 2d 653, 2002 U.S. Dist. LEXIS 1775 (M.D. Tenn. 2002).

Tennessee court could not exercise personal jurisdiction over a Kentucky repair shop in a breach of contract action arising out of repairs made to a truck in Kentucky that was later driven to Tennessee where it caught fire. The only contacts that the repair shop had with the forum state were the occasional attendance of its employees at automobile auctions in Nashville, Tennessee, and 17 customers had Tennessee addresses. Gregurek v. Swope Motors, Inc., 138 S.W.3d 882, 2003 Tenn. App. LEXIS 640 (Tenn. Ct. App. 2003).

Court granted a trust's motion to dismiss for lack of personal jurisdiction where its purchasing a consolidated loan pool that happened to contain loans secured by real property located in the state did not show that it had the substantial contacts necessary for general personal jurisdiction or that it had availed itself of the privileges of acting in the state thus subjecting the trust to specific personal jurisdiction. Williams v. Firstplus Home Loan Owner Trust 1998-4, 310 F. Supp. 2d 981, 2004 U.S. Dist. LEXIS 5392 (W.D. Tenn. 2004).

Court lacked personal jurisdiction over defendants because the collective group of contacts that the doctor alleged defendants had with the state were not so continuous and systematic as to create general personal jurisdiction and defendants had not purposefully availed themselves of the privilege of doing business in the state. Feild v. Graffagnino, 514 F. Supp. 2d 1036, 2007 U.S. Dist. LEXIS 71052 (W.D. Tenn. Sept. 11, 2007).

A taxpayer's suit against two officers of a New York taxing authority alleging that their telephone calls and letters attempting to collect certain disputed New York taxes for business conducted in New York constituted intentional infliction of emotional distress was properly dismissed for lack of personal jurisdiction under the Tennessee long-arm statute, T.C.A. § 20-2-214, because there was no evidence that the officers purposely derived benefit from activities within Tennessee or that they purposely directed their activities towards any Tennessee resident except the taxpayer. Attea v. Eristoff, — S.W.3d —, 2007 Tenn. App. LEXIS 316 (Tenn. Ct. App. May 18, 2007).

Tennessee trial court could not exercise general personal jurisdiction over an out-of-state hospital under the Tennessee long-arm statute because the fact that the hospital was a subsidiary of a Tennessee corporation did not establish minimum contacts with Tennessee; reliance on a declaration in an annual report that listed the hospital's principal office address as a post office box in Nashville, Tennessee was also insufficient, as was the contention that the officers and directors were in Tennessee, because these facts without more did not establish systematic and continuous contacts with Tennessee. Gordon v. Greenview Hosp., Inc., — S.W.3d —, 2008 Tenn. App. LEXIS 168 (Tenn. Ct. App. Mar. 24, 2008), aff'd, 300 S.W.3d 635, 2009 Tenn. LEXIS 864 (Tenn. Dec. 17, 2009).

Granting of the Arkansas attorneys'  motion to dismiss the inmate's action against them for lack of personal jurisdiction was appropriate pursuant to T.C.A. §§ 20-5-214(a)(6) and 20-2-225(2) because their contacts with Tennessee were insufficient to have justified exercising specific personal jurisdiction. Young Bok Song v. Lehman, — S.W.3d —, 2011 Tenn. App. LEXIS 526 (Tenn. Ct. App. Sept. 16, 2011).

Motion to dismiss for lack of personal jurisdiction was granted because nothing in the record before the court could be construed as the archdiocese's continuous and systematic contacts with the state of Tennessee. Plaintiff had not shown that any of the typical forms of contact for establishing general personal jurisdiction were present. Hilani v. Greek Orthodox Archdiocese of Am., 863 F. Supp. 2d 711, 2012 U.S. Dist. LEXIS 72232 (W.D. Tenn. May 24, 2012).

Motion to dismiss for lack of personal jurisdiction was granted because nothing in the record before the court could be construed as the archdiocese's continuous and systematic contacts with the state of Tennessee. Plaintiff had not shown that any of the typical forms of contact for establishing general personal jurisdiction were present. Hilani v. Greek Orthodox Archdiocese of Am., 863 F. Supp. 2d 711, 2012 U.S. Dist. LEXIS 72232 (W.D. Tenn. May 24, 2012).

Where plaintiff, a citizen of Tennessee, sued defendants, residents of Virginia or Maryland, the district court did not err in dismissing her complaint for want of personal jurisdiction because defendant one's contacts with Tennessee were occasional and he did not seek to avail himself of the privilege of acting in Tennessee or to establish an ongoing contact with one of its residents, and plaintiff did not show that the other defendants had any contact with Tennessee. Roundtree-Chism v. Dunn, — F.3d —2017 U.S. App. LEXIS 24271 (6th Cir. Nov. 29, 2017).

Trial court erred in ruling it lacked personal jurisdiction over a refuse company because the contacts within Tennessee engendered through the contractual relationship between the company and a restaurant were continuous and systematic and were sufficient to give it general personal jurisdiction; the parties had a contractual relationship whereby the company was to provide waste removal services at the restaurants in Tennessee, and payment for such services would be made in Tennessee. J. Alexander's Holdings, LLC v. Republic Servs., — S.W.3d —, 2017 Tenn. App. LEXIS 307 (Tenn. Ct. App. May 12, 2017).

Appellant failed to establish that appellee's reply email and telephone call constituted sufficient minimum contacts with Tennessee, given that appellee's email and telephone communications with appellant did not purposefully target Tennessee such that appellee should reasonably anticipate being haled into court in the state, and it was not enough that appellant alleged that the fraudulent behavior was suffered by a Tennessee resident. EnhanceWorks, Inc. v. Dropbox, Inc., — S.W.3d —, 2019 Tenn. App. LEXIS 129 (Tenn. Ct. App. Mar. 14, 2019).

Appellant did not allege sufficient facts to demonstrate that appellee deliberately directed any electronic activity to a certain website or to the State of Tennessee; to the contrary, the allegation was that appellee copied information from the public website and used it in another state, and appellant did not establish appellee's minimum contacts. EnhanceWorks, Inc. v. Dropbox, Inc., — S.W.3d —, 2019 Tenn. App. LEXIS 129 (Tenn. Ct. App. Mar. 14, 2019).

6. Collateral Defendants.

Under this act, substituted service was sufficient to give the court in personam jurisdiction over nonresident defendants who were alleged to have executed a note to a Tennessee resident, payable in Tennessee, and delivered to the payee in Tennessee, but not over nonresident defendants who were alleged only to have executed (out of the state) stock powers pledge to stock certificates as collateral for the loan without otherwise participating in the transaction or being personally liable on the note. Hamilton Nat'l Bank v. Russell, 261 F. Supp. 145, 1966 U.S. Dist. LEXIS 7539 (E.D. Tenn. 1966).

7. Tortious Act.

In an action by one purchasing an automobile from a dealer in Tennessee against the foreign manufacturer of such automobile for damages alleged to have resulted from a defect in such automobile, jurisdiction could be obtained under this section on the theory of tort for misrepresentation, could not be obtained on the theory of sale of a defective and unreasonably dangerous chattel (automobile not sold here), and could be obtained on the theory of breach of warranty without privity (automobile delivered here). Fayette v. Volkswagen of America, Inc., 273 F. Supp. 323, 1967 U.S. Dist. LEXIS 8184 (W.D. Tenn. 1967).

Under this section a tortious act must be regarded as having been committed in Tennessee if the consequent injury is sustained in Tennessee. Kroger Co. v. Dornbos, 408 F.2d 813, 1969 U.S. App. LEXIS 13119 (6th Cir. Tenn. 1969).

A complaint that alleges that a Michigan partnership negligently processed, inspected, and shipped contaminated fish products to Tennessee and thereby caused injury to persons in Tennessee, alleges a tortious act or omission in Tennessee subjecting the Michigan partnership to jurisdiction under this section. Kroger Co. v. Dornbos, 408 F.2d 813, 1969 U.S. App. LEXIS 13119 (6th Cir. Tenn. 1969).

Where out-of-state corporation installed engine in truck for leasing organization and there was nothing in record to indicate that such corporation knew the truck was to be taken into Tennessee and such corporation had never done business in Tennessee, it could not be sued in Tennessee for damages resulting when truck stalled in Tennessee. Lawson v. U-Haul Co., 336 F. Supp. 186, 1971 U.S. Dist. LEXIS 12082 (E.D. Tenn. 1971), aff'd, 462 F.2d 1337, 1972 U.S. App. LEXIS 8661 (6th Cir. Tenn. 1972).

Clause (a)(2) was intended to confer jurisdiction over nonresident tortfeasors in situations where the allegedly negligent conduct occurred outside the state but the resulting tortious injury occurred within the state. Hanvy v. Crosman Arms Co., 225 Tenn. 262, 466 S.W.2d 214, 1971 Tenn. LEXIS 344 (1971).

Service of process on New York manufacturer of air rifle was valid where rifle was allegedly shipped into the state in a loaded condition and rifle was allegedly discharged by plaintiff's fellow employee causing loss of eye. Hanvy v. Crosman Arms Co., 225 Tenn. 262, 466 S.W.2d 214, 1971 Tenn. LEXIS 344 (1971).

Where out-of-state defendant advertised helicopter for sale in Tennessee trade paper and made false representations which plaintiff relied upon, and plaintiff purchased defective helicopter, such misrepresentations were tortious and defendant came within provisions of this section. Jasper Aviation, Inc. v. McCollum Aviation, Inc., 497 S.W.2d 240, 1972 Tenn. LEXIS 311 (Tenn. 1972).

Where a foreign corporation was the sole importer of a particular make of motorcycle for distribution throughout the United States and one of these motorcycles was sold in Tennessee by an independent distributor, the importing corporation neither directly distributing motorcycles, nor doing business in Tennessee, it was held that the Tennessee long arm statute, 20-2-214 extended to the limits of the due process clause of the U. S. Const. amend. 14 and that, in a suit by an injured cyclist for injuries sustained in Tennessee due to a defective cycle imported by the foreign corporation, the corporation, by having set in motion in another state events likely to result in injury to a person and property in Tennessee, subjected itself to in personam jurisdiction and service of process under the Tennessee long arm statute. Walker v. Kawasaki Motors Corp., 62 F.R.D. 607, 1973 U.S. Dist. LEXIS 11321 (D. Tenn. 1973).

Where manufacturer voluntarily places its products into the channels of national commerce, it subjects itself to the operation of the long arm statute for the purpose of responding to claims for injuries in one state as the result of tortious acts committed in another state. McCoy v. Wean United, Inc., 67 F.R.D. 491, 1973 U.S. Dist. LEXIS 10477 (D. Tenn. 1973).

A paternity suit is not an action in tort so as to subject a nonresident defendant to service of process since sexual intercourse between consenting adult parties within the state is not a tortious act under subdivision (a)(2). Barnhart v. Madvig, 526 S.W.2d 106, 1975 Tenn. LEXIS 591 (Tenn. 1975).

Where there was no allegation that legal process was used to obtain an effect that the process was not intended to accomplish there was no tortious act to bring jurisdiction under this section. Donaldson v. Donaldson, 557 S.W.2d 60, 1977 Tenn. LEXIS 667 (Tenn. 1977).

Where a defendant commits a tortious act outside the state which proximately causes damages to be sustained within the state, the tort is deemed to have occurred within the state, and subsection (a)(2) is applicable. McCombs v. Cerco Rentals, 622 S.W.2d 822, 1981 Tenn. App. LEXIS 480 (Tenn. Ct. App. 1981); Inter-City Prods. Corp v. Willey, 149 F.R.D. 563, 1993 U.S. Dist. LEXIS 14851 (M.D. Tenn. 1993).

The trial court correctly held that the Tennessee court had jurisdiction over defendant where defendant made fraudulent misrepresentations in Oklahoma concerning the condition of an airplane he was selling, and purposely acted to continue those misrepresentations by insisting that he fly the airplane to Memphis. Godwin Aircraft, Inc. v. Houston, 851 S.W.2d 816, 1992 Tenn. App. LEXIS 947 (Tenn. Ct. App. 1992).

8. Tolling of Limitations — Out-of-State Decision.

The statute of limitations as to actions to which this section applies is not tolled by the absence of the defendant from the state. Burris v. Alexander Mfg. Co., 51 Misc. 2d 543, 273 N.Y.S.2d 542 (1966).

In an action for indemnity for damages paid by a merchant to its customers for injuries and death suffered from deleterious fish negligently processed and packed in Michigan and shipped by the defendant to the merchant in Tennessee where they were sold by the merchant to its customers, the negligent acts of the defendant constituted a tortious act within the state of Tennessee. Kroger Co. v. Adkins Transfer Co., 284 F. Supp. 371, 1968 U.S. Dist. LEXIS 7751 (M.D. Tenn. 1968), aff'd, Kroger Co. v. Dornbos, 408 F.2d 813, 1969 U.S. App. LEXIS 13119 (6th Cir. Tenn. 1969), aff'd, Austin v. United States, 408 F.2d 808, 1969 U.S. App. LEXIS 13404 (9th Cir. Cal. 1969).

9. Scope of Act.

For causes of action arising out of a nonresident's business activities in the state the legislature intended by this act to extend the jurisdiction of Tennessee courts over a nonresident to the full extent permitted by the fourteenth amendment of the United States constitution. Southern Machine Co. v. Mohasco Industries, Inc., 401 F.2d 374, 1968 U.S. App. LEXIS 5493 (6th Cir. Tenn. 1968), superseded by statute as stated in, UPS v. Buck Fever Racing, — S.W.2d —, 1996 Tenn. App. LEXIS 848 (Tenn. Ct. App. Dec. 24, 1996), superseded by statute as stated in, Tomlin v. Collegiate Techs., Inc., — S.W.3d —, 1999 Tenn. App. LEXIS 781 (Tenn. Ct. App. Nov. 30, 1999), superseded by statute as stated in, Progeny Mktg. v. Farmers & Merchs. Bank, — S.W.3d —, 2005 Tenn. App. LEXIS 208 (Tenn. Ct. App. Apr. 7, 2005).

An initial carrier who delivered fish products from Michigan to Chicago, and a connecting carrier who delivered the fish from Chicago to Tennessee, stood in the relationship of principal and agent and by virtue of the agency relationship the initial carrier has sufficient “minimum contacts” with Tennessee to subject it to in personam jurisdiction pursuant to this section. Kroger Co. v. Dornbos, 408 F.2d 813, 1969 U.S. App. LEXIS 13119 (6th Cir. Tenn. 1969).

This section was intended by the legislature to give to Tennessee citizens the benefit of the full jurisdiction allowable consistent with the due process clause. Kroger Co. v. Dornbos, 408 F.2d 813, 1969 U.S. App. LEXIS 13119 (6th Cir. Tenn. 1969); Darby v. Superior Supply Co., 224 Tenn. 540, 458 S.W.2d 423, 1970 Tenn. LEXIS 355 (1970); Blue Diamond Coal Co. v. Michigan Sugar Co., 463 F. Supp. 14, 1978 U.S. Dist. LEXIS 19158 (E.D. Tenn. 1978).

The issue of whether plaintiff could have sued defendant under the “Long Arm” statute was not reached in an action which decided that the issue of proximate cause was a question of law for the court to decide. Lawson v. U-Haul Co., 462 F.2d 1337, 1972 U.S. App. LEXIS 8661 (6th Cir. Tenn. 1972).

A contract between father and son for college expenses does not come within the provisions of subdivision (a)(5). Huskey v. Huskey, 366 F. Supp. 186, 1972 U.S. Dist. LEXIS 11996 (E.D. Tenn. 1972).

This section concerning jurisdiction of the courts of the state over nonresidents or over residents who are outside the state does not apply to a question of venue as between counties under § 20-4-101. Mid-South Milling Co. v. Loret Farms, Inc., 521 S.W.2d 586, 1975 Tenn. LEXIS 693 (Tenn. 1975).

The Tennessee long arm statute, as amended, does not require that the cause of action arise out of activity in the state of Tennessee. Gullett v. Qantas Airways, Ltd., 417 F. Supp. 490, 1975 U.S. Dist. LEXIS 12292 (M.D. Tenn. 1975).

The clear language of this statute, its legislative history, and § 20-2-219 indicate that subsection (a)(6) did not impose a restriction on the jurisdiction of the courts but rather expanded the jurisdiction to the full constitutionally permissible limits. Gullett v. Qantas Airways, Ltd., 417 F. Supp. 490, 1975 U.S. Dist. LEXIS 12292 (M.D. Tenn. 1975).

Even assuming arguendo the fact that the lawsuit did not arise out of defendant's activities within the state, that fact alone would not serve as a constitutional bar to the court's exercise of jurisdiction over defendant foreign corporation since a foreign corporation may be held subject to suit on a cause of action entirely unrelated to its activities within the state through the use of a long arm statute. Gullett v. Qantas Airways, Ltd., 417 F. Supp. 490, 1975 U.S. Dist. LEXIS 12292 (M.D. Tenn. 1975).

There are three criteria for determining the present outer limits of jurisdiction based on a single act: the defendant must purposefully avail himself of the privilege of acting in the forum state or cause a consequence in that state, the cause of action must arise from the defendant's activities there, and the acts of the defendant or consequences caused by the defendant must have a substantial connection with the forum state to make the exercise of jurisdiction reasonable. Frye v. Crowell, 563 S.W.2d 788, 1978 Tenn. LEXIS 534 (Tenn. 1978).

This section does not grant jurisdiction in Tennessee over a Florida judge or a father domiciled in Georgia because of custody actions concerning the father and the child before the judge in Florida. Frye v. Crowell, 563 S.W.2d 788, 1978 Tenn. LEXIS 534 (Tenn. 1978).

It was the intention of the state legislature in enacting this section to comprehend the full jurisdiction allowable under U.S. Const. amend. 14. Pickens v. Hess, 573 F.2d 380, 1978 U.S. App. LEXIS 11758 (6th Cir. Tenn. 1978).

The personal jurisdiction of the Tennessee federal district court is governed by Tennessee law. Carborundum Co., Pollution Control Div. v. Bay Fabricators, Inc., 461 F. Supp. 437, 1978 U.S. Dist. LEXIS 14735 (E.D. Tenn. 1978).

In personam jurisdiction over nonresidents can be acquired only under this section. Continental Leasing Corp. v. Economy Leasing Co., 564 S.W.2d 956, 1977 Tenn. App. LEXIS 272 (Tenn. Ct. App. 1977).

The statute affords specific jurisdiction to adjudicate and is limited to the matters arising out of or substantially related to the circumstances established by the statute upon which the jurisdictional claim is based. Gillis v. Clark Equipment Co., 579 S.W.2d 869, 1978 Tenn. App. LEXIS 343 (Tenn. Ct. App. 1978), overruled, Davenport v. State Farm Mut. Auto. Ins. Co., 756 S.W.2d 678, 1988 Tenn. LEXIS 160 (Tenn. 1988).

With the addition of subdivision (a)(6) of this section, the Tennessee legislature expanded the jurisdiction of the courts in Tennessee to “any action or claim for relief arising from … any basis not inconsistent with the constitution of this state or of the United States.” There is no mention of any “within the state” limitation in subdivision (a)(6) of this section, and it is only logical to assume that it was the intent of the legislature not to include such a restriction in that subsection. W. G. Bush & Co. v. Sioux City & New Orleans Barge Lines, Inc., 474 F. Supp. 537, 1977 U.S. Dist. LEXIS 14349 (M.D. Tenn. 1977).

It is apparent from the explicit language of subdivision (a)(7) and from reference to § 20-2-219 which states that the long-arm statute is remedial in nature and is to be liberally construed, that the scope of the statute fully extends to the bounds imposed by the due process clause of the U.S. Const. amend. 14. McCombs v. Cerco Rentals, 622 S.W.2d 822, 1981 Tenn. App. LEXIS 480 (Tenn. Ct. App. 1981).

Plaintiff mother, resident in Tennessee, who sought to modify New Mexico judgment granting child support could not use the Long Arm Statutes to obtain service on and bring defendant father within the jurisdiction of the Tennessee courts where father had had absolutely no contact with the state of Tennessee. Paulk v. Paulk, 656 S.W.2d 34, 1983 Tenn. App. LEXIS 696 (Tenn. Ct. App. 1983).

The Tennessee long arm statute confers jurisdiction to the full extent allowable under the due process clause. Milan Express, Inc. v. Missie, Inc., 575 F. Supp. 931, 1983 U.S. Dist. LEXIS 11902 (W.D. Tenn. 1983).

In determining the outer limits of personal jurisdiction based on a single act, the defendant must purposefully avail himself of the privilege of acting in the forum state or causing a consequence in the forum state, the cause of action must arise from the defendant's activities there, and the acts of the defendant or consequences caused by the defendant must have a substantial enough connection with the forum to make the exercise of jurisdiction reasonable. Milan Express, Inc. v. Missie, Inc., 575 F. Supp. 931, 1983 U.S. Dist. LEXIS 11902 (W.D. Tenn. 1983).

In determining whether the defendant has sufficient minimum contacts with the forum state to justify the exercise of personal jurisdiction, courts may also consider the quality and quantity of the defendant's contacts with the forum, the interest of the forum state, the convenience of the parties and the foreseeability that the nonresident defendant might have to defend in the forum state. Milan Express, Inc. v. Missie, Inc., 575 F. Supp. 931, 1983 U.S. Dist. LEXIS 11902 (W.D. Tenn. 1983).

Jurisdiction under the Tennessee long-arm statute goes to the limits of due process. Hooks v. Hooks, 771 F.2d 935, 1985 U.S. App. LEXIS 22600 (6th Cir. Tenn. 1985).

10. Construction with Other Statutes.

Subdivision (a)(6) does not repeal by implication § 20-2-201. Gillis v. Clark Equipment Co., 579 S.W.2d 869, 1978 Tenn. App. LEXIS 343 (Tenn. Ct. App. 1978), overruled, Davenport v. State Farm Mut. Auto. Ins. Co., 756 S.W.2d 678, 1988 Tenn. LEXIS 160 (Tenn. 1988); P & E Electric, Inc. v. Utility Supply of America, Inc., 655 F. Supp. 89, 1986 U.S. Dist. LEXIS 20610 (M.D. Tenn. 1986).

The clear language of the statute, its legislative history, and the provisions of § 20-2-219 convince the court that subdivision (a)(6) expands the jurisdiction of Tennessee courts under this section to the full constitutionally permissible limits. W. G. Bush & Co. v. Sioux City & New Orleans Barge Lines, Inc., 474 F. Supp. 537, 1977 U.S. Dist. LEXIS 14349 (M.D. Tenn. 1977).

A comparison of Tenn. Code Ann. § 20-2-201 with Tenn.Code Ann. § 20-2-214 reveals that subdivisions (a)(1)-(5) of this section have the same application to the activities of foreign corporations in Tennessee as does § 20-2-201. Davenport v. State Farm Mut. Auto. Ins. Co., 756 S.W.2d 678, 1988 Tenn. LEXIS 160 (Tenn. 1988), rehearing denied, — S.W.2d —, 1989 Tenn. LEXIS 116 (Tenn. Feb. 27, 1989).

Subdivision (a)(6) expanded the jurisdiction of Tennessee courts to the full extent permitted by due process. Davenport v. State Farm Mut. Auto. Ins. Co., 756 S.W.2d 678, 1988 Tenn. LEXIS 160 (Tenn. 1988), rehearing denied, — S.W.2d —, 1989 Tenn. LEXIS 116 (Tenn. Feb. 27, 1989).

The addition of subdivision (a)(6) resulted in an irreconcilable conflict with the phrase “but not otherwise” which limited the jurisdiction conferred by § 20-2-201. Davenport v. State Farm Mut. Auto. Ins. Co., 756 S.W.2d 678, 1988 Tenn. LEXIS 160 (Tenn. 1988), rehearing denied, — S.W.2d —, 1989 Tenn. LEXIS 116 (Tenn. Feb. 27, 1989).

In certain circumstances, this section has repealed by implication § 20-2-201. Davenport v. State Farm Mut. Auto. Ins. Co., 756 S.W.2d 678, 1988 Tenn. LEXIS 160 (Tenn. 1988), rehearing denied, — S.W.2d —, 1989 Tenn. LEXIS 116 (Tenn. Feb. 27, 1989).

11. Nonresident Motorists.

Section 20-2-203 is the statutory authority for service of process in tort actions arising out of motor vehicular use of state highways by nonresidents and §§ 20-2-21420-2-219, the “long arm” statute, is not available for service of process in such a case. Hatler v. Stout, 222 Tenn. 172, 434 S.W.2d 329, 1968 Tenn. LEXIS 507 (1968).

12. Service of Process.

Constructive service is proper in a suit for wrongful invasion of privacy where defendant magazine was sent into Tennessee, the home of the plaintiff. Cordell v. Detective Publications, Inc., 307 F. Supp. 1212, 1968 U.S. Dist. LEXIS 7726 (E.D. Tenn. 1968), aff'd, 419 F.2d 989, 1969 U.S. App. LEXIS 9552 (6th Cir. Tenn. 1969).

Fundamental fairness, logic, and good sense would be violated if a repairman were subjected to service of process in a foreign state simply because the product of his labor was subsequently carried by another, on the business and for the benefit of someone other than the repairman, to that state. W. G. Bush & Co. v. Sioux City & New Orleans Barge Lines, Inc., 474 F. Supp. 537, 1977 U.S. Dist. LEXIS 14349 (M.D. Tenn. 1977).

13. Contracts.

Where the parties, all foreign corporations, purposely contracted to cause a consequence in Tennessee, the consequences were substantial enough to make exercise of jurisdiction over the defendants reasonable. Capital Consultants Corp. v. Charles Williams Real Estate Inv. Corp., 352 F. Supp. 101, 1972 U.S. Dist. LEXIS 12705 (E.D. Tenn. 1972).

Where contract with foreign corporations was fulfilled by preparation of architectural, mechanical, electrical and structural plans for proposed motel, the factual circumstances were sufficient to establish minimum contacts to satisfy due process and subject the defendants to in personam jurisdiction even though no representative of defendants was ever physically present in the state. William W. Bond, Jr. & Associates, Inc. v. Montego Bay Development Corp., 405 F. Supp. 256, 1975 U.S. Dist. LEXIS 14795 (W.D. Tenn. 1975).

An individual's contract with an out-of-state party alone cannot automatically establish minimum contracts in the other party's home forum. Hooks v. Hooks, 771 F.2d 935, 1985 U.S. App. LEXIS 22600 (6th Cir. Tenn. 1985).

Pursuant to T.C.A. § 20-2-214(a)(6) and the due process clause, a federal district court did not have in personam jurisdiction over a German corporation in an international contract dispute because the German corporation did not have continuous and systematic contacts with Tennessee and did not purposefully avail itself of the benefits of Tennessee law. Sun Coke Co. v. Man Ferrostaal Do Brasil Commercio E Industria Ltda., 543 F. Supp. 2d 836, 2008 U.S. Dist. LEXIS 10083 (E.D. Tenn. Feb. 11, 2008), rev'd, SunCoke Energy Inc. v. Man Ferrostaal Aktiengesellschaft, 563 F.3d 211, 2009 FED App. 154P (6th Cir.), 2009 U.S. App. LEXIS 8171 (6th Cir. Tenn. 2009).

Where a Tennessee company entered into a payment agreement with a New York corporation after negotiations by telephone, fax, and email, the Tennessee company later filed action seeking recission or reformation of the letter agreement; circumstances did not support the exercise of general or specific jurisdiction in Tennessee under the long-arm statute, T.C.A. § 20-2-214(a)(6) as the New York corporation had not purposely availed itself of the privilege of doing business in Tennessee and did not have sufficient contacts with Tennessee to be subjected to jurisdiction in the state. Exel Transp. Servs. v. Inter-Ego Sys., — S.W.3d —, 2008 Tenn. App. LEXIS 735 (Tenn. Ct. App. Dec. 18, 2008).

South Dakota citizens were not entitled to Fed. R. Civ. P. 12(b)(2) dismissal of an action under the Copyright Act, 17 U.S.C. § 101 et seq., and the Lanham Act, 15 U.S.C. § 1125, that was filed by Tennessee citizens who alleged copying and use of their dealership business model and dealership agreement; the South Dakota citizens'  continuous commercial activities in Tennessee were sufficient to establish general personal jurisdiction, and the exercise of specific personal jurisdiction was appropriate under T.C.A. § 20-2-214(a)(5) on the basis of the parties'  dealership contract. Energy Automation Sys. v. Saxton, 618 F. Supp. 2d 807, 2009 U.S. Dist. LEXIS 25904 (M.D. Tenn. Mar. 24, 2009).

Trial court properly exercised personal jurisdiction, under T.C.A. § 20-2-214(a), over a corporate buyer in Pennsylvania in a dispute arising out of a contract, in which a manufacturer in Tennessee alleged that it manufactured and delivered to the buyer metal castings and molds for which the buyer failed to pay, because the buyer initiated a contractual relationship with the manufacturer and entered into a contract providing that Tennessee law would control. Precision Castings of Tenn., Inc. v. H & H Mfg. Co., — S.W.3d —, 2012 Tenn. App. LEXIS 582 (Tenn. Ct. App. Aug. 22, 2012).

Personal jurisdiction, either general or specific jurisdiction, did not exist in the State of Tennessee, pursuant to T.C.A. §§ 20-2-214, 20-2-223, and 20-2-225, over an out-of-state corporation, which contracted with the predecessor-in-interest of a corporation that relocated to Tennessee, because the out-of-state corporation did not purposely avail itself of the privilege of doing business in the State of Tennessee and did not have sufficient contacts with the State of Tennessee to be subjected to jurisdiction in the State of Tennessee. Covista Communs., Inc. v. Oorah, Inc., — S.W.3d —, 2012 Tenn. App. LEXIS 781 (Tenn. Ct. App. Nov. 14, 2012).

In a Tennessee law firm's breach of contract action, arising from an out-of-state attorney's failure to pay his share of expenses from a matter that the parties litigated together, there was personal jurisdiction over the attorney because after the firm established sufficient minimum contacts, the attorney did not show that it was an unfair or unreasonable burden on him to defend the action in Tennessee. Wolff Ardis, P.C. v. Dailey, — S.W.3d —, 2013 Tenn. App. LEXIS 679 (Tenn. Ct. App. Oct. 11, 2013), appeal denied, Wolf Ardis, PC v. Dailey, — S.W.3d —, 2014 Tenn. LEXIS 211 (Tenn. Mar. 4, 2014).

In a Tennessee law firm's breach of contract action, arising from an out-of-state attorney's failure to pay his share of expenses from a matter that the parties litigated together, there was personal jurisdiction over the attorney because he had sufficient minimum contacts due to purposefully directing his activity toward Tennessee to initiate the parties'  contractual relationship. Wolff Ardis, P.C. v. Dailey, — S.W.3d —, 2013 Tenn. App. LEXIS 679 (Tenn. Ct. App. Oct. 11, 2013), appeal denied, Wolf Ardis, PC v. Dailey, — S.W.3d —, 2014 Tenn. LEXIS 211 (Tenn. Mar. 4, 2014).

Trial court erred in dismissing for lack of personal jurisdiction a Tennessee civil engineering company's action for breach of contract and unjust enrichment against a Texas energy company because the energy company purposefully availed itself of conducting business in the state; the contract identified the civil engineering company as a Tennessee company, the energy company knew it was engaging a Tennessee company, and the civil engineering company did all of the work in Tennessee. Crouch Ry. Consulting, LLC v. LS Energy Fabrication, LLC, — S.W.3d —, 2019 Tenn. App. LEXIS 212 (Tenn. Ct. App. Apr. 30, 2019).

Because a Tennessee civil engineering company's action stemmed directly from a Texas energy company's alleged breach of the contract, the energy company's failure to pay the contract price, its contacts with Tennessee were sufficient for specific personal jurisdiction in Tennessee; the energy company purposefully targeted Tennessee when it entered into a business transaction with a Tennessee company for a customized, specialized service to be performed in Tennessee. Crouch Ry. Consulting, LLC v. LS Energy Fabrication, LLC, — S.W.3d —, 2019 Tenn. App. LEXIS 212 (Tenn. Ct. App. Apr. 30, 2019).

14. Continuing Proceedings.

Although this section refers to service of process in original actions it can also be used for continuing proceedings such as enforcement of child support decrees since it allows for service of process on any basis not inconsistent with the United States or Tennessee Constitutions. Sowell v. Sowell, 493 S.W.2d 86, 1973 Tenn. LEXIS 499 (Tenn. 1973).

15. Bastardy Cases.

Service of process under the Tennessee long arm statute on the nonresident putative father of an illegitimate child conceived in Tennessee did not offend the fundamental notions of fairness to the defendant which defined the limits of long arm jurisdiction. Gentry v. Davis, 512 S.W.2d 4, 1974 Tenn. LEXIS 475 (Tenn. 1974).

Where a mother who was a resident of Tennessee instituted a paternity action, a Tennessee court had no personal jurisdiction over the alleged nonresident father, who had never been in Tennessee, by service of process in a foreign state under subdivision (2) or (6). Barnhart v. Madvig, 526 S.W.2d 106, 1975 Tenn. LEXIS 591 (Tenn. 1975).

16. In Personam Jurisdiction.

In personam jurisdiction is not assumed as punishment for the commission of a tort or the breach of a contract. Its assumption is not based on the fault of the defendant but on the interest of the state. Warren v. Dynamics Health Equipment Mfg. Co., 483 F. Supp. 788, 1980 U.S. Dist. LEXIS 10014 (M.D. Tenn. 1980).

The courts of Tennessee must look to the jurisdictional statute of the state in which the judgment sought to be enforced was entered when determining whether that court had obtained personal jurisdiction over the nonresident defendant. Four Seasons Gardening & Landscaping, Inc. v. Crouch, 688 S.W.2d 439, 1984 Tenn. App. LEXIS 3449 (Tenn. Ct. App. 1984).

In determining whether a state can assert long-arm jurisdiction, due process requires that a nonresident defendant be subjected to a judgment in personam only if he has such minimum contacts with the foreign state that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. J.I. Case Corp. v. Williams, 832 S.W.2d 530, 1992 Tenn. LEXIS 314 (Tenn. 1992), overruled in part, Gordon v. Greenview Hosp., Inc., 300 S.W.3d 635, 2009 Tenn. LEXIS 864 (Tenn. Dec. 17, 2009).

Defendant's contacts in Tennessee were not so continuous and systematic as to justify the exercise of personal jurisdiction. United States Fidelity & Guaranty Co. v. Mayberry, 789 F. Supp. 901, 1992 U.S. Dist. LEXIS 5648 (E.D. Tenn. 1992).

When a state exercises personal jurisdiction over a defendant in a suit not arising out of or related to the defendant's contacts with the forum, the state is exercising “general jurisdiction” over the defendant. United Agric. Servs., Inc. v. Scherer, 17 S.W.3d 252, 1999 Tenn. App. LEXIS 613 (Tenn. Ct. App. 1999).

When a state exercises personal jurisdiction over a defendant in a suit arising out of or related to the defendant's contacts with the forum, the state is exercising “specific jurisdiction” over the defendant. United Agric. Servs., Inc. v. Scherer, 17 S.W.3d 252, 1999 Tenn. App. LEXIS 613 (Tenn. Ct. App. 1999).

Special verdict did not address whether agents acted as the sellers'  agents outside the presentation or whether the misrepresentations made at the presentation were indirectly communicated to the buyers who were not present at the presentation, and until these issues were fully determined, the quantity and quality of the sellers'  contacts with Tennessee could not be fully determined; on remand and after the circuit court had determined the scope of the agents'  agency and the nature of their representations to the buyers who were not present at the presentation, the court should determine whether the scope of Tennessee's specific in personam jurisdiction over the sellers was sufficiently broad to embrace the claims of these parties. Creech v. Addington, — S.W.3d —, 2007 Tenn. App. LEXIS 557 (Tenn. Ct. App. Aug. 29, 2007), rev'd, 281 S.W.3d 363, 2009 Tenn. LEXIS 88 (Tenn. 2009).

Record did not demonstrate either that the out-of-state hospital had the kind of continuous and systematic contacts with Tennessee that permitted Tennessee's courts to exercise general jurisdiction over it or that the control that the parent corporation exercised was so extensive to warrant disregarding the presumption of corporate separateness. Gordon v. Greenview Hosp., Inc., 300 S.W.3d 635, 2009 Tenn. LEXIS 864 (Tenn. Dec. 17, 2009).

Subsidiary had sufficient contacts with the forum state to justify the exercise of personal jurisdiction where it initiated contact with consumers in Tennessee through its direct marketing business, the business had allegedly been operating for many years, and thus, the subsidiary's contacts with Tennessee were not limited to the maintenance of an unrestricted interactive website. Pureworks, Inc. v. Brady Corp., — F. Supp. 2d —, 2010 U.S. Dist. LEXIS 98399 (M.D. Tenn. Sept. 20, 2010).

Court could not properly exercise general personal jurisdiction over either the corporation or its officer because: (1) the corporation maintained that it owned no property in the state of Tennessee, conducted no business in Tennessee, and was not registered to do business in Tennessee; (2) even accepting the plaintiffs'  claim that the corporation owned or leased a warehouse in Memphis, that incident of ownership merely suggested the presence of other ties and did not establish the kind of continuous and systematic contacts with the forum required to establish general personal jurisdiction; and (3) the plaintiffs had not shown that the officer had minimum contacts with the state of Tennessee approximating physical presence in the state of Tennessee since the plaintiffs only showed that the officer made a single trip to Memphis. Noval Int'l Res., LLC v. Andec, Inc., 875 F. Supp. 2d 804, 2012 U.S. Dist. LEXIS 85713 (W.D. Tenn. June 20, 2012).

Tennessee courts, under the Due Process Clause of the Fourteenth Amendment, lacked personal jurisdiction over an Indonesian cigarette manufacturer, whose cigarettes were sold in Tennessee through the marketing efforts of a Florida entrepreneur who purchased the cigarettes from an independent foreign distributor, because the State of Tennessee failed to establish, by a preponderance of the evidence, that the manufacturer purposely availed itself of the privilege of doing business in Tennessee. State v. NV Sumatra Tobacco Trading Co., 403 S.W.3d 726, 2013 Tenn. LEXIS 335 (Tenn. Mar. 28, 2013).

Trial court did not raise the issue of personal jurisdiction sua sponte because in its motion to dismiss filed in the general sessions court, a refuse company cited the long-arm statute, and the company reiterated its argument in the memorandum in support of the motion for summary judgment it filed in the trial court. J. Alexander's Holdings, LLC v. Republic Servs., — S.W.3d —, 2017 Tenn. App. LEXIS 307 (Tenn. Ct. App. May 12, 2017).

17. —Factors.

The crucial factor in determining whether the exercise of in personam jurisdiction over a nonresident offends due process is the conduct of the defendant showing that it purposefully availed itself of the privilege of carrying on activities to secure goods from a manufacturer and seller located within the forum. Nicholstone Book Bindery, Inc. v. Chelsea House Publishers, 621 S.W.2d 560, 1981 Tenn. LEXIS 487 (Tenn. 1981), cert. denied, Chelsea House Publishers, etc. v. Nicholstone Book Bindery, Inc., 455 U.S. 994, 102 S. Ct. 1623, 71 L. Ed. 2d 856, 1982 U.S. LEXIS 1195 (1982).

It is the contacts of the defendants with this state on which jurisdiction must stand or fall. Basler v. Nelson, 633 S.W.2d 491, 1982 Tenn. App. LEXIS 476 (Tenn. Ct. App. 1982).

Where plaintiff filed a complaint against defendants in Tennessee to enforce a foreign judgment entered in New Jersey, the trial court properly granted defendants'  motion to dismiss due to lack of personal jurisdiction. The complaint contained nothing to demonstrate that defendants maintained continuous and systematic contacts with Tennessee, that the subject matter of the cause of action bore any relation with Tennessee, or that the defendants were residents of Tennessee. Law Offices of Hugo Harmatz v. Dorrough, 182 S.W.3d 326, 2005 Tenn. App. LEXIS 428 (Tenn. Ct. App. 2005), review or rehearing denied, — S.W.3d —, 2005 Tenn. LEXIS 1072 (Tenn. 2005).

District court properly granted North Carolina corporate officers'  Fed. R. Civ. P. 12(b)(2) motion to dismiss for lack of specific personal jurisdiction an action by a Tennessee corporation alleging violation of Tennessee's Trade Secrets Act, T.C.A. § 47-25-1701, and common law; the officers'  activities did not meet the requirements of Tennessee's long-arm statute, T.C.A. § 20-2-214, and the officers did not deliberately affiliate themselves with Tennessee notwithstanding the existence of a license agreement, which contained a Tennessee choice-of-law provision, between the North Carolina and Tennessee corporations. Intera Corp. v. Henderson, 428 F.3d 605, 2005 FED App. 439P, 2005 U.S. App. LEXIS 24330 (6th Cir. Tenn. 2005), cert. denied, 547 U.S. 1070, 126 S. Ct. 1782, 164 L. Ed. 2d 518, 2006 U.S. LEXIS 3238 (2006).

Under T.C.A. § 20-2-214(a), where a corporate officer made purposeful choice to enter into a business relationship with a limited liability company under Tennessee law, traditional notions of fair play were not offended by requiring the officer to defend a claim in Tennessee. Caboodles Cosmetics, Ltd. P'ship v. Caboodles, LLC, 412 F. Supp. 2d 872, 2006 U.S. Dist. LEXIS 6147 (W.D. Tenn. 2006).

Trial court had personal jurisdiction over the mother in a custody case because, prior to filing her motion to dismiss for lack of personal jurisdiction, the mother filed an answer and counter-petition and entered into an agreed order regarding the parties'  parenting schedules, thereby submitting to the jurisdiction of the court and waiving her challenge to personal jurisdiction. Clark v. Cerden, — S.W.3d —, 2007 Tenn. App. LEXIS 30 (Tenn. Ct. App. Jan. 22, 2007).

In an action against a corporation by retirees and their spouses seeking health insurance benefits under the Labor Management Relations Act, 29 U.S.C. § 185, and the Employee Retirement Income Security Act, 29 U.S.C. § 1132, district court lacked personal jurisdiction over six out-of-state local unions in relation to the corporation's third-party complaint for indemnification because the unions had insufficient minimum contacts with Tennessee so as to subject them to personal jurisdiction under T.C.A. § 20-2-214(a)(6). Kerns v. Caterpillar, Inc., 583 F. Supp. 2d 885, 2008 U.S. Dist. LEXIS 36634 (M.D. Tenn. May 1, 2008).

Jurisdiction under the Tennessee long-arm statute, T.C.A. § 20-2-214(a)(6), was consistent with federal due process requirements; the court could exercise specific jurisdiction because the trademark and other claims in the case were sufficiently related to defendant's contacts with the state of Tennessee. Invisible Fence, Inc. v. Fido's Fences, Inc., 687 F. Supp. 2d 726, 2009 U.S. Dist. LEXIS 74024 (E.D. Tenn. Aug. 20, 2009).

Fiduciary shield doctrine did not apply to T.C.A. §§ 20-2-214(a)(6), 20-2-225, because the statutes were coextensive with due process, and defendants, a company's officers, purposefully availed themselves of Tennessee by sending emails to plaintiff equipment supplier for the supplier to fraudulent pay the company instead of its accounts receivable assignee. Simplex Healthcare, Inc. v. Marketlinkx Direct, Inc., 761 F. Supp. 2d 726, 2011 U.S. Dist. LEXIS 7178 (M.D. Tenn. Jan. 25, 2011).

Specific personal jurisdiction over the corporation's officer was lacking because: (1) the plaintiffs had not shown that the officer purposely availed himself of the privilege of doing business in Tennessee; (2) the plaintiffs had not shown that the officer's participation in the parties'  negotiations created the quality of contacts with Tennessee required to support personal jurisdiction; (3) the plaintiffs failed to show that the terms of the contract or the future consequences of the contract in any way required the officer to perform duties or carry out activities in Tennessee; and (4) the plaintiffs had not carried their burden to show that the officer had minimum contacts with Tennessee in the course of performing the contract. Noval Int'l Res., LLC v. Andec, Inc., 875 F. Supp. 2d 804, 2012 U.S. Dist. LEXIS 85713 (W.D. Tenn. June 20, 2012).

Jurisdiction over the individual officers of a corporation cannot be predicated merely upon jurisdiction over the corporation; instead, the court must make an independent determination about whether it can exercise specific personal jurisdiction over an officer or agent named as a party, and the fact that the officer or agent acts in an official capacity, and not a purely personal capacity, is not dispositive of the jurisdictional issue. Therefore, the court had to separately analyze the factors to consider whether it had specific personal jurisdiction over the corporation and its officers. Noval Int'l Res., LLC v. Andec, Inc., 875 F. Supp. 2d 804, 2012 U.S. Dist. LEXIS 85713 (W.D. Tenn. June 20, 2012).

For purposes of Tennessee's long-arm statute, the Georgia and Alabama corporations'  motions to dismiss for lack of personal jurisdiction were properly granted because they did not establish significant contacts with Tennessee so as to establish specific in personam jurisdiction as the former Georgia corporation, now an Alabama corporation, and the Alabama corporation never advertised and did not solicit customers in Tennessee; and the corporations did not have continuous and systematic contacts with Tennessee to exercise general in personam jurisdiction over them as they did not purposefully direct their commercial activities to Tennessee residents, and appellant travelled to the corporations'  locations to procure her prescriptions. Turner ex rel. Turner v. Howe, — S.W.3d —, 2016 Tenn. App. LEXIS 970 (Tenn. Ct. App. Dec. 20, 2016), review denied and ordered not published, Turner ex rel. Liam T. v. Howe, — S.W.3d —, 2017 Tenn. LEXIS 336 (Tenn. May 25, 2017).

18. Internet.

While a general posting on the Internet is not sufficient to establish minimum contacts, courts may find personal jurisdiction appropriate where there is something more to indicate that the defendant purposefully directed activities to the forum state. Bailey v. Turbine Design, Inc., 86 F. Supp. 2d 790, 2000 U.S. Dist. LEXIS 2538 (W.D. Tenn. 2000).

By merely posting defamatory information regarding a Tennessee businessman on a passive website that was available to anyone anywhere with access to the Internet, defendants did not purposely avail themselves of the benefits of the state of Tennessee. Bailey v. Turbine Design, Inc., 86 F. Supp. 2d 790, 2000 U.S. Dist. LEXIS 2538 (W.D. Tenn. 2000).

For purposes of determining jurisdiction under the Tennessee long-arm statute, T.C.A. § 20-2-214(a)(6), defendant's website alone, which included no means of direct payment, did not meet the requisite level of interactivity for defendant to have purposefully availed itself of acting in Tennessee. Invisible Fence, Inc. v. Fido's Fences, Inc., 687 F. Supp. 2d 726, 2009 U.S. Dist. LEXIS 74024 (E.D. Tenn. Aug. 20, 2009).

Since defendant customers of plaintiff Tennessee auction purposefully directed alleged libelous communications about the auction house through the Internet into Tennessee that caused injury within Tennessee, and those communications formed the “heart” of the cause of action, personal jurisdiction over the customers existed under T.C.A. § 20-2-214(a). Nat'l Pub. Auction Co., LLC v. Anderson Motor Sports, LLC, — F. Supp. 2d —, 2011 U.S. Dist. LEXIS 10914 (M.D. Tenn. Jan. 31, 2011).

19. Conspiracy Theory of Personal Jurisdiction.

Where nonresident conspirators purposefully directed their activities toward Tennessee and should reasonably have anticipated being haled into court in Tennessee, due process concerns did not preclude the trial court from exercising personal jurisdiction over defendants. Manufacturers Consolidation Serv., Inc. v. Rodell, 42 S.W.3d 846, 2000 Tenn. App. LEXIS 148 (Tenn. Ct. App. 2000).

The “conspiracy theory of personal jurisdiction” fits within T.C.A. § 20-2-214 and comports with due process. This theory holds that an out-of-state defendant involved in a conspiracy who lacks sufficient “minimum contacts” with the forum state may nevertheless be subject to jurisdiction because of a coconspirator's contacts with the forum. Chenault v. Walker, 36 S.W.3d 45, 2001 Tenn. LEXIS 46 (Tenn. 2001).

20. Particular Cases.

Where a seller allegedly misrepresented the condition of a car sold over the internet, personal jurisdiction existed over the seller in the Tennessee buyer's suit because: (1) The seller knowingly interacted with a Tennessee resident; (2) The breach of contract claim arose from the seller's act of cashing the buyer's check; and (3) The misrepresentation and fraud claims stemmed from the seller's acts of calling into Tennessee and representing the car was something it was not. Erwin v. Piscitello, 627 F. Supp. 2d 855, 2007 U.S. Dist. LEXIS 73373 (E.D. Tenn. Sept. 28, 2007).

Because defendant Kentucky attorney knowingly represented Tennessee client entities for several years, and it was not out of the ordinary for him to be at the entities'  Tennessee offices and he commonly interacted with them by phone, and he was deeply involved in the entities'  day-to-day affairs, purposeful availment was found for purposes of personal jurisdiction over the attorney under Tennessee's long-arm statute in a securities fraud case filed by plaintiff receivers for the failed entities. Cumberland & Ohio Co. v. Coffman, 719 F. Supp. 2d 884, 2010 U.S. Dist. LEXIS 50316 (M.D. Tenn. May 21, 2010).

Buyers failed to establish personal jurisdiction over the seller pursuant to T.C.A. §§ 20-2-223(a), 20-2-214(a)(6), and 20-2-225 because the buyers initiated contact with the seller via the seller's passive website, and the seller's operation of the website did not constitute purposeful availment. Richardson v. Bates Show Sales Staff, Inc., — S.W.3d —, 2013 Tenn. App. LEXIS 167 (Tenn. Ct. App. Mar. 6, 2013).

Trial court lacked personal jurisdiction over out-of-state ratings agencies regarding allegations of fraud and negligent misrepresentation made by a bank in Tennessee because the bank failed to demonstrate contacts between the ratings agencies and the State of Tennessee with reasonable particularity sufficient to establish a prima facie case of general jurisdiction or specific jurisdiction in Tennessee, when the rating agencies rated investment products that were sold in all fifty states and purchased by the bank. First Cmty. Bank, N.A. v. First Tenn. Bank, 489 S.W.3d 369, 2015 Tenn. LEXIS 1005 (Tenn. Dec. 14, 2015), cert. denied, Fitch Ratings, 136 S. Ct. 2511, 195 L. Ed. 2d 841, 2016 U.S. LEXIS 4094 (U.S. 2016).

Collateral References.

Construction and application of state statutes or rules of court predicating in personam jurisdiction over nonresidents or foreign corporations on making or performing a contract within the state. 23 A.L.R.3d 551.

Construction and application of state statutes or rules of courts predicating in personam jurisdiction over nonresidents or foreign corporations on the commission of a tort within the state. 24 A.L.R.3d 532.

Foreign corporation's leasing of personal property as doing business within statutes prescribing conditions of right to do business. 50 A.L.R.3d 1020.

In Personam Jurisdiction, Under Long-Arm Statute, over Nonresident Attorney in Legal Malpractice Action. 78 A.L.R.6th 151.

Obtaining jurisdiction over nonresident parent in filiation or support proceeding. 76 A.L.R.3d 708.

State statutes or rules of court conferring in personam jurisdiction over nonresidents on the basis of isolated acts or transactions within state as applicable to personal representative of deceased nonresident. 19 A.L.R.3d 171.

Tolling of statute of limitations during absence from state as affected by fact that party claiming benefit of limitations remained subject to service during absence or nonresidence. 55 A.L.R.3d 1158.

Law Reviews.

The Long-Arm Wrestle: Personal Jurisdiction in Tennessee (Steven E. Winn), 56 Tenn. L. Rev. 557 (1989).

20-2-215. Service on secretary of state — Forwarding by registered or certified mail — Personal representatives of deceased defendants — Time for appearance — Registered or certified mail refused.

  1. Service of process pursuant to § 20-2-214 shall be made by lodging, by the plaintiff or the plaintiff's attorney, the original summons and a copy certified by the clerk of the court in which the action is brought, with a fee of twenty dollars ($20.00), with the secretary of state, who shall promptly send, postage prepaid, the certified copy by registered or certified return receipt mail to the defendant, along with a written notice that service was so made.
  2. In case it appears, either before or after the lodging of process as provided in subsection (a), that the nonresident is dead, then either original or alias process may issue directed to the personal representative of the nonresident deceased and shall be sent as provided in this section to the probate court of the county and state of the residence of the deceased at the time of the deceased's death. No appearance need be made nor shall judgment be taken against the personal representative until the lapse of sixty (60) days from the date of mailing the process to such probate court. The procedure for mailing such process and proof of service of process shall be as provided in this section and in § 20-2-216 for the service upon living persons.
  3. The fee of twenty dollars ($20.00) so paid by plaintiff, when fact of payment is endorsed on the original process by the secretary of state, shall be taxed as plaintiff's cost, to abide the judgment.
  4. In case delivery of process so made by registered or certified mail is refused by the addressee of the process, such refusal to be evidenced by appropriate notation of such fact by the postal authorities, such refusal shall be deemed the equivalent of delivery and adequately constitutes service.

Acts 1965, ch. 67, § 2; 1971, ch. 332, § 1; 1979, ch. 88, § 1; 1980, ch. 656, § 2; T.C.A., § 20-236; Acts 1998, ch. 890, § 7.

Cross-References. Certified mail in lieu of registered mail, § 1-3-111.

Rule Reference. This section is referred to in the Advisory Commission Comments under Rules 4, 4B and 12 of the Tennessee Rules of Civil Procedure.

Textbooks. Tennessee Jurisprudence, 4 Tenn. Juris., Automobiles, § 36.

Law Reviews.

Expanded In Personam Jurisdiction — Due Process and the Tennessee Long Arm Statute (Ben H. Cantrell), 33 Tenn. L. Rev. 371.

Pleadings, Motions and Pre-Trial Procedure, 4 Mem. St. U.L. Rev. 219.

Procedure — Nonresident Motorist Statute — Exclusive Remedy, 36 Tenn. L. Rev. 591.

Recent Developments — Domestic Relations — Divorce — Due Process for Indigent Plaintiffs, 47 Tenn. L. Rev. 845.

Some Observations on Problems Posed by the Tennessee “Long Arm” Statute and Products Liability Cases (Joe A. Moore), 1 Mem. St. U.L. Rev. 37.

Cited: Southern Machine Co. v. Mohasco Industries, Inc., 401 F.2d 374, 1968 U.S. App. LEXIS 5493 (6th Cir. Tenn. 1968); Kroger Co. v. Adkins Transfer Co., 284 F. Supp. 371, 1968 U.S. Dist. LEXIS 7751 (M.D. Tenn. 1968); Garrett v. R. H. Macy & Co., 360 F. Supp. 872, 1972 U.S. Dist. LEXIS 12643 (E.D. Tenn. 1972); Gentry v. Davis, 512 S.W.2d 4, 1974 Tenn. LEXIS 475 (Tenn. 1974); Harding v. Allied Products Corp., 703 F. Supp. 51, 1989 U.S. Dist. LEXIS 573 (W.D. Tenn. 1989); Inter-City Prods. Corp v. Willey, 149 F.R.D. 563, 1993 U.S. Dist. LEXIS 14851 (M.D. Tenn. 1993).

NOTES TO DECISIONS

1. Application to Federal Diversity Actions.

In products liability action brought by buyer of French automobile to recover from out-of-state importer for damages suffered in a traffic accident in Tennessee as a result of alleged defects in the automobile, service under this section gave the federal district court jurisdiction of importer, which sold automobile through regional distributor and local retail dealer after purchasing it from parent French corporation which had manufactured it. Tate v. Renault, Inc., 278 F. Supp. 457, 1967 U.S. Dist. LEXIS 7423 (E.D. Tenn. 1967), aff'd, 402 F.2d 795, 1968 U.S. App. LEXIS 5055 (6th Cir. 1968).

2. Service on Foreign Corporation.

This statute, in accordance with Tenn. R. Civ. P. 4.04(4), provides a procedural alternative for obtaining service on the defendant foreign corporation where jurisdiction is assumed under the long arm statute. Gullett v. Qantas Airways, Ltd., 417 F. Supp. 490, 1975 U.S. Dist. LEXIS 12292 (M.D. Tenn. 1975).

Collateral References. Process 82.

20-2-216. Proof of mailing by secretary of state and receipt by defendant.

The original process, endorsed as described in this section, an affidavit of the secretary of state setting forth the secretary of state's compliance with the requirements of § 20-2-215, and the return receipt signed by, or duly in behalf of, the defendant, shall be attached together and sent to and filed by the clerk. There shall be endorsed on the original process by the secretary of state over the secretary of state's signature the date the secretary of state mailed the certified copy to the defendant and the date on which the secretary of state received the return receipt of the defendant. Thereupon, service on the defendant shall be consummate. An act of a deputy or regular assistant of the secretary of state in the secretary of state's behalf shall be deemed the equivalent of the act of the secretary of state.

Acts 1965, ch. 67, § 3; T.C.A., § 20-237.

Rule Reference. This section is referred to in the Advisory Commission Comments under Rule 4 of the Tennessee Rules of Civil Procedure.

Textbooks. Tennessee Jurisprudence, 4 Tenn. Juris., Automobiles, § 36.

Law Reviews.

Procedure — Nonresident Motorist Statute — Exclusive Remedy, 36 Tenn. L. Rev. 591.

20-2-217. Extraterritorial personal service — Proof.

  1. In addition to service of process on the secretary of state as set forth in this part, personal service of process may be made upon any party outside the state by any person over eighteen (18) years of age and not a party to the action. No order of court shall be required to constitute such person a proper officer to receive and execute the process.
  2. An affidavit of the person serving the process shall be filed with the clerk of the court in which the action is pending, stating the time, manner and place of service.

Acts 1965, ch. 67, § 4; 1979, ch. 418, § 2; T.C.A., § 20-238.

Law Reviews.

Expanded Bases of Jurisdiction — An Examination of Tennessee's New “Long-Arm” Statute (Harry G. Nichol, Jr.), 18 Vand. L. Rev. 1484.

Cited: Inter-City Prods. Corp v. Willey, 149 F.R.D. 563, 1993 U.S. Dist. LEXIS 14851 (M.D. Tenn. 1993).

20-2-218. Causes of action limited.

Only causes of action arising hereafter or heretofore from past or future transactions as set forth in § 20-2-214 may be asserted against the defendant in an action in which jurisdiction over the defendant is based upon §§ 20-2-21420-2-217, this section and §  20-2-219.

Acts 1965, ch. 67, § 5; T.C.A., § 20-239.

Law Reviews.

A Survey of Civil Procedure in Tennessee — 1977, II. Selecting a Proper Forum, (John L. Sobieski, Jr.), 46 Tenn. L. Rev. 273.

NOTES TO DECISIONS

1. Manufacturer's Sale Not in State.

Jurisdiction under this act could not be obtained over a foreign manufacturer of an automobile purchased by the plaintiff from a dealer who obtained it from an out-of-state distributor for an action for damages caused by an alleged defect in such automobile on the theory of the sale of a defective and unreasonably dangerous chattel since such manufacturer's sale of the automobile was not made in this state. Fayette v. Volkswagen of America, Inc., 273 F. Supp. 323, 1967 U.S. Dist. LEXIS 8184 (W.D. Tenn. 1967).

2. Retroactive Application.

This section in providing that it applies to all actions arising “hereafter or heretofore from past or future transactions” has both prospective and retroactive application. Myers v. United States Auto. Club, Inc., 281 F. Supp. 48, 1968 U.S. Dist. LEXIS 8497 (E.D. Tenn. 1968).

This act is applicable to transactions occurring prior to its passage. Kroger Co. v. Adkins Transfer Co., 284 F. Supp. 371, 1968 U.S. Dist. LEXIS 7751 (M.D. Tenn. 1968), aff'd, Kroger Co. v. Dornbos, 408 F.2d 813, 1969 U.S. App. LEXIS 13119 (6th Cir. Tenn. 1969), aff'd, Austin v. United States, 408 F.2d 808, 1969 U.S. App. LEXIS 13404 (9th Cir. Cal. 1969).

20-2-219. Process under other laws not affected — Liberal construction.

  1. Nothing contained in §§ 20-2-214 — 20-2-218 and this section shall limit or affect the service of process in any other manner now provided by law.
  2. Subsection (a) is in the nature of remedial legislation and it is the legislative intent that it be given a liberal construction.

Acts 1965, ch. 67, § 6; T.C.A., § 20-240.

Textbooks. Tennessee Jurisprudence, 6 Tenn. Juris., Constitutional Law, § 83.

Law Reviews.

A Survey of Civil Procedure in Tennessee — 1977, II. Selecting a Proper Forum, (John L. Sobieski, Jr.), 46 Tenn. L. Rev. 273.

Civil Procedure — In Personam Jurisdiction — Act of Conception Provides Sufficient Contacts with Forum to Ground Long Arm Jurisdiction, 5 Mem. St. U.L. Rev. 277.

Cited: Hamilton Nat'l Bank v. Russell, 261 F. Supp. 145, 1966 U.S. Dist. LEXIS 7539 (E.D. Tenn. 1966); Temco, Inc. v. General Screw Products, Inc., 261 F. Supp. 793, 1966 U.S. Dist. LEXIS 7977 (M.D. Tenn. 1966); Kroger Co. v. Dornbos, 408 F.2d 813, 1969 U.S. App. LEXIS 13119 (6th Cir. Tenn. 1969); Third Nat'l Bank v. Hardi--Gardens Supply of Ill., Inc., 380 F. Supp. 930, 1974 U.S. Dist. LEXIS 7626 (M.D. Tenn. 1974).

NOTES TO DECISIONS

1. Construction.

For causes of action arising out of a nonresident's business activities in the state the legislature intended by this act to extend the jurisdiction of Tennessee courts over a nonresident to the full extent permitted by the fourteenth amendment of the United States constitution. Southern Machine Co. v. Mohasco Industries, Inc., 401 F.2d 374, 1968 U.S. App. LEXIS 5493 (6th Cir. Tenn. 1968), superseded by statute as stated in, UPS v. Buck Fever Racing, — S.W.2d —, 1996 Tenn. App. LEXIS 848 (Tenn. Ct. App. Dec. 24, 1996), superseded by statute as stated in, Tomlin v. Collegiate Techs., Inc., — S.W.3d —, 1999 Tenn. App. LEXIS 781 (Tenn. Ct. App. Nov. 30, 1999), superseded by statute as stated in, Progeny Mktg. v. Farmers & Merchs. Bank, — S.W.3d —, 2005 Tenn. App. LEXIS 208 (Tenn. Ct. App. Apr. 7, 2005).

2. Effect on Other Laws.

The “long arm” statute, §§ 20-2-21420-2-219, does not repeal or override the nonresident motorist statute as set out in §§ 20-2-20320-2-207. Hatler v. Stout, 222 Tenn. 172, 434 S.W.2d 329, 1968 Tenn. LEXIS 507 (1968).

20-2-220. Authority of deputy and assistant secretaries of state.

An act of a deputy or regular assistant of the secretary of state in the secretary of state's behalf under this part shall be deemed the equivalent of the act of the secretary of state; provided, that the deputy or assistant signs the name of the secretary of state by the secretary of state as the deputy or assistant so that the record will show the party acting for the secretary of state and that such party was a deputy of or regular assistant to the secretary of state.

Acts 1967, ch. 191, § 1; T.C.A., § 20-241.

20-2-221. “Person” defined.

As used in §§ 20-2-22220-2-225, “person” includes an individual, executor, administrator or other personal representative, or a corporation, partnership, association or any other legal or commercial entity, whether or not a citizen or domiciliary of this state and whether or not organized under the laws of this state.

Acts 1997, ch. 226, § 1.

20-2-222. Personal jurisdiction based upon enduring relationship.

A court may exercise personal jurisdiction over:

  1. A person domiciled in, organized under the laws of, or maintaining the person's principal place of business in, the state as to any claim for relief; or
  2. A person who is a party to an action of divorce, annulment or separate maintenance when the parties have lived in the marital relationship within this state, notwithstanding one party's subsequent departure from this state, as to all obligations arising for alimony, custody, child support, child visitation or marital dissolution agreement, if the other party to the marital relationship continues to reside in this state.

Acts 1997, ch. 226, § 1.

Cited: Spina v. State, 99 S.W.3d 596, 2002 Tenn. Crim. App. LEXIS 797 (Tenn. Crim. App. 2002); In re Estate of Rinehart, 363 S.W.3d 186, 2011 Tenn. App. LEXIS 616 (Tenn. Ct. App. Nov. 15, 2011).

NOTES TO DECISIONS

0.5. Foreign Corporation.

Record did not demonstrate either that the out-of-state hospital had the kind of continuous and systematic contacts with Tennessee that permitted Tennessee's courts to exercise general jurisdiction over it or that the control that the parent corporation exercised was so extensive to warrant disregarding the presumption of corporate separateness. Gordon v. Greenview Hosp., Inc., 300 S.W.3d 635, 2009 Tenn. LEXIS 864 (Tenn. Dec. 17, 2009).

1. Proper.

Appellants did not deny that they were Tennessee residents, and in his affidavit one appellant admitted receiving and responding to a letter addressed to the other appellant in Nashville, plus he intervened in this case, and thus the lower court had personal jurisdiction over the parties. Primary Residential Mortg., Inc. v. Baker, — S.W.3d —, 2018 Tenn. App. LEXIS 409 (Tenn. Ct. App. July 23, 2018).

20-2-223. Personal jurisdiction based on conduct.

  1. A court may exercise personal jurisdiction over a person, who acts directly or indirectly, as to a claim for relief arising from the person's:
    1. Transacting any business in this state;
    2. Contracting to supply services or things in this state;
    3. Causing tortious injury by an act or omission in this state;
    4. Causing tortious injury in this state by an act or omission outside this state of the person who regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this state;
    5. Having an interest in, using or possessing real property in this state;
    6. Contracting to insure any person, property or risk located within this state at the time of contracting; or
    7. Conduct as a director or officer of a domestic corporation or the conduct of a domestic corporation while the person held office as a director or officer.
  2. When jurisdiction over a person is based solely upon this section, only a claim for relief arising from acts enumerated in this section may be asserted against that person.

Acts 1997, ch. 226, § 1.

Law Reviews.

A Tale of Two Jurisdictions, 68 Vand. L. Rev. 501 (2015).

Federal Civil Procedure — Personal Jurisdiction — General Jurisdiction Over Foreign Corporations Based Upon Domestic Subsidiary Activity Within The Forum State, 82 Tenn. L. Rev. 461 (2015).

Cited: Bridgeport Music v. Agarita Music, 182 F. Supp. 2d 653, 2002 U.S. Dist. LEXIS 1775 (M.D. Tenn. 2002); State v. NV Sumatra Tobacco Trading Co., 403 S.W.3d 726, 2013 Tenn. LEXIS 335 (Tenn. Mar. 28, 2013).

NOTES TO DECISIONS

1. Illustrative Cases.

Where promissory note was prepared in Tennessee, was governed by Tennessee law by the terms thereof and payments were to be made in Tennessee, the requirements of T.C.A. § 20-2-223 were satisfied and personal jurisdiction was established over Michigan corporation. United Agric. Servs., Inc. v. Scherer, 17 S.W.3d 252, 1999 Tenn. App. LEXIS 613 (Tenn. Ct. App. 1999).

Tennessee court could not exercise personal jurisdiction over a Kentucky repair shop in a breach of contract action arising out of repairs made to a truck in Kentucky that was later driven to Tennessee where it caught fire. The only contacts that the repair shop had with the forum state were the occasional attendance of its employees at automobile auctions in Nashville, Tennessee, and 17 customers had Tennessee addresses. Gregurek v. Swope Motors, Inc., 138 S.W.3d 882, 2003 Tenn. App. LEXIS 640 (Tenn. Ct. App. 2003).

Personal jurisdiction, either general or specific jurisdiction, did not exist in the State of Tennessee, pursuant to T.C.A. §§ 20-2-214, 20-2-223, and 20-2-225, over an out-of-state corporation, which contracted with the predecessor-in-interest of a corporation that relocated to Tennessee, because the out-of-state corporation did not purposely avail itself of the privilege of doing business in the State of Tennessee and did not have sufficient contacts with the State of Tennessee to be subjected to jurisdiction in the State of Tennessee. Covista Communs., Inc. v. Oorah, Inc., — S.W.3d —, 2012 Tenn. App. LEXIS 781 (Tenn. Ct. App. Nov. 14, 2012).

Buyers failed to establish personal jurisdiction over the seller pursuant to T.C.A. §§ 20-2-223(a), 20-2-214(a)(6), and 20-2-225 because the buyers initiated contact with the seller via the seller's passive website, and the seller's operation of the website did not constitute purposeful availment. Richardson v. Bates Show Sales Staff, Inc., — S.W.3d —, 2013 Tenn. App. LEXIS 167 (Tenn. Ct. App. Mar. 6, 2013).

2. Contract to Supply Things.

Promissory note which specifically provided for payment in Tennessee came within the provisions of T.C.A. § 20-2-223(a)(2) as a contract to supply “things” in this state. United Agric. Servs., Inc. v. Scherer, 17 S.W.3d 252, 1999 Tenn. App. LEXIS 613 (Tenn. Ct. App. 1999).

3. Conspiracy Theory of Personal Jurisdiction.

The “conspiracy theory of personal jurisdiction” which provides that an out-of-state defendant involved in a conspiracy who lacks sufficient “minimum contacts” with the forum state may nevertheless be subject to jurisdiction because of a coconspirator's contacts with the forum, fits within § 20-2-214 and comports with due process. Chenault v. Walker, 36 S.W.3d 45, 2001 Tenn. LEXIS 46 (Tenn. 2001).

4. Manufacturer's Awareness of Distribution System.

Manufacturer's awareness of the distribution system, through which it receives economic and legal benefits, justifies subjecting the manufacturer to the jurisdiction of every forum within its distributors'  market area; accordingly, a manufacturer that intentionally seeks out a distribution system, with the goal of national distribution, should reasonably expect that its products could be sold throughout the 50 states and that it could be subject to the jurisdiction of every state. This does not completely eradicate a foreign manufacturer's ability to insulate itself from personal jurisdiction in the state of Tennessee, however; if the foreign manufacturer attempts to preclude the distribution and sale of its products in the forum state, it may avoid the jurisdiction of the courts of that state. State v. NV Sumatra Tobacco Trading Co., — S.W.3d —, 2011 Tenn. App. LEXIS 354 (Tenn. Ct. App. June 28, 2011), rehearing denied, State v. NV Sumatra Tobacco Trading Co., — S.W.3d —, 2011 Tenn. App. LEXIS 470 (Tenn. Ct. App. Aug. 24, 2011), rev'd, State v. NV Sumatra Tobacco Trading Co., 403 S.W.3d 726, 2013 Tenn. LEXIS 335 (Tenn. Mar. 28, 2013).

5. Personal Jurisdiction Proper.

Chancery court erred in finding that it lacked personal jurisdiction over defendant tobacco product manufacturer because the manufacturer intentionally used a distribution system with the desired result of selling its product in all 50 states, including Tennessee, so as to support a finding that the manufacturer had minimum contacts with the state necessary to invoke the exercise of personal jurisdiction. State v. NV Sumatra Tobacco Trading Co., — S.W.3d —, 2011 Tenn. App. LEXIS 354 (Tenn. Ct. App. June 28, 2011), rehearing denied, State v. NV Sumatra Tobacco Trading Co., — S.W.3d —, 2011 Tenn. App. LEXIS 470 (Tenn. Ct. App. Aug. 24, 2011), rev'd, State v. NV Sumatra Tobacco Trading Co., 403 S.W.3d 726, 2013 Tenn. LEXIS 335 (Tenn. Mar. 28, 2013).

20-2-224. Service outside the state.

When the exercise of personal jurisdiction is authorized by §§ 20-2-22120-2-223, this section and §  20-2-225, service may be made outside this state in the manner provided by the Tennessee rules of civil procedure or as otherwise provided by law.

Acts 1997, ch. 226, § 1.

Law Reviews.

Constitutional Law — Personal Jurisdiction — A State's Ability to Exercise Jurisdiction over a Foreign Manufacturer, 81 Tenn. L. Rev. 339 (2014).

20-2-225. Other bases of jurisdiction unaffected — Jurisdiction whenever permitted by constitution.

A court of this state may exercise jurisdiction:

  1. On any other basis authorized by law; or
  2. On any basis not inconsistent with the constitution of this state or of the United States.

Acts 1997, ch. 226, § 1.

Law Reviews.

A Tale of Two Jurisdictions, 68 Vand. L. Rev. 501 (2015).

Rethinking Conspiracy Jurisdiction in Light of Stream of Commerce and Effects-Based Jurisdictional Principles, 71 Vand. L. Rev. 1333 (May 2018).

Back to the Basics: Resisting Novel and Extreme Approaches to the Law of Personal Jurisdiction and the Internet, 30 U. Mem. L. Rev. 157 (1999).

Constitutional Law — Personal Jurisdiction — A State's Ability to Exercise Jurisdiction over a Foreign Manufacturer, 81 Tenn. L. Rev. 339 (2014).

Federal Civil Procedure — Personal Jurisdiction — General Jurisdiction Over Foreign Corporations Based Upon Domestic Subsidiary Activity Within The Forum State, 82 Tenn. L. Rev. 461 (2015).

NOTES TO DECISIONS

1. Constitutionality.

When a state's long arm statute authorizes the assertion of personal jurisdiction to the limits of federal due process, as does T.C.A. § 20-2-225, the issue becomes simply whether the trial court's exercise of personal jurisdiction over the defendant meets due process requirements. Manufacturers Consolidation Serv., Inc. v. Rodell, 42 S.W.3d 846, 2000 Tenn. App. LEXIS 148 (Tenn. Ct. App. 2000).

Where nonresident conspirators purposefully directed their activities toward Tennessee and should reasonably have anticipated being haled into court in Tennessee, due process concerns did not preclude the trial court from exercising personal jurisdiction over defendants. Manufacturers Consolidation Serv., Inc. v. Rodell, 42 S.W.3d 846, 2000 Tenn. App. LEXIS 148 (Tenn. Ct. App. 2000).

1.5. Jurisdiction Not Found.

Record did not demonstrate either that the out-of-state hospital had the kind of continuous and systematic contacts with Tennessee that permitted Tennessee's courts to exercise general jurisdiction over it or that the control that the parent corporation exercised was so extensive to warrant disregarding the presumption of corporate separateness. Gordon v. Greenview Hosp., Inc., 300 S.W.3d 635, 2009 Tenn. LEXIS 864 (Tenn. Dec. 17, 2009).

Granting of the Arkansas attorneys'  motion to dismiss the inmate's action against them for lack of personal jurisdiction was appropriate pursuant to T.C.A. §§ 20-5-214(a)(6) and 20-2-225(2) because their contacts with Tennessee were insufficient to have justified exercising specific personal jurisdiction. Young Bok Song v. Lehman, — S.W.3d —, 2011 Tenn. App. LEXIS 526 (Tenn. Ct. App. Sept. 16, 2011).

Personal jurisdiction, either general or specific jurisdiction, did not exist in the State of Tennessee, pursuant to T.C.A. §§ 20-2-214, 20-2-223, and 20-2-225, over an out-of-state corporation, which contracted with the predecessor-in-interest of a corporation that relocated to Tennessee, because the out-of-state corporation did not purposely avail itself of the privilege of doing business in the State of Tennessee and did not have sufficient contacts with the State of Tennessee to be subjected to jurisdiction in the State of Tennessee. Covista Communs., Inc. v. Oorah, Inc., — S.W.3d —, 2012 Tenn. App. LEXIS 781 (Tenn. Ct. App. Nov. 14, 2012).

Tennessee courts, under the Due Process Clause of the Fourteenth Amendment, lacked personal jurisdiction over an Indonesian cigarette manufacturer, whose cigarettes were sold in Tennessee through the marketing efforts of a Florida entrepreneur who purchased the cigarettes from an independent foreign distributor, because the State of Tennessee failed to establish, by a preponderance of the evidence, that the manufacturer purposely availed itself of the privilege of doing business in Tennessee. State v. NV Sumatra Tobacco Trading Co., 403 S.W.3d 726, 2013 Tenn. LEXIS 335 (Tenn. Mar. 28, 2013).

Buyers failed to establish personal jurisdiction over the seller pursuant to T.C.A. §§ 20-2-223(a), 20-2-214(a)(6), and 20-2-225 because the buyers initiated contact with the seller via the seller's passive website, and the seller's operation of the website did not constitute purposeful availment. Richardson v. Bates Show Sales Staff, Inc., — S.W.3d —, 2013 Tenn. App. LEXIS 167 (Tenn. Ct. App. Mar. 6, 2013).

In this fraud action, while Tennessee residents who banked with plaintiff may encounter residual effects of plaintiff's losses, the record was simply devoid of any evidence that would establish that nonresident defendants “purposefully targeted Tennessee” in this case and “should reasonably anticipate being haled into court here” for their actions in this case. First Cmty. Bank, N.A. v. First Tenn. Bank, N.A., — S.W.3d —, 2013 Tenn. App. LEXIS 541 (Tenn. Ct. App. Aug. 20, 2013), appeal dismissed, — S.W.3d —, 2014 Tenn. LEXIS 135 (Tenn. Feb. 12, 2014).

In this fraud action, the dismissal of the complaint for lack of general, all-purpose jurisdiction as to the agencies was affirmed because, while the agencies marketed their services to Tennessee and engaged in the rating of debt issuances for Tennessee on a regular basis, these contacts, fell short of collectively establishing a prima facie showing that the activities at issue in this case were sufficiently continuous and systematic such that it would be fair to subject the agencies to suit in Tennessee even if the cause of action arose elsewhere. First Cmty. Bank, N.A. v. First Tenn. Bank, N.A., — S.W.3d —, 2013 Tenn. App. LEXIS 541 (Tenn. Ct. App. Aug. 20, 2013), appeal dismissed, — S.W.3d —, 2014 Tenn. LEXIS 135 (Tenn. Feb. 12, 2014).

In this fraud action, nonresident defendants did not lack minimum contacts with Tennessee as their contacts were simply not meaningful enough to support the invocation of specific jurisdiction and imputing additional contacts to them would not subject them to personal jurisdiction under the long-arm statute of this state when the record was devoid of evidence that they “purposefully targeted Tennessee” to the extent that they “should reasonably anticipate being haled into court here.” First Cmty. Bank, N.A. v. First Tenn. Bank, N.A., — S.W.3d —, 2013 Tenn. App. LEXIS 541 (Tenn. Ct. App. Aug. 20, 2013), appeal dismissed, — S.W.3d —, 2014 Tenn. LEXIS 135 (Tenn. Feb. 12, 2014).

In this fraud action, the dismissal of the complaint for lack of general, all-purpose jurisdiction as to several defendants was affirmed because defendants never visited Tennessee and were incorporated elsewhere. First Cmty. Bank, N.A. v. First Tenn. Bank, N.A., — S.W.3d —, 2013 Tenn. App. LEXIS 541 (Tenn. Ct. App. Aug. 20, 2013), appeal dismissed, — S.W.3d —, 2014 Tenn. LEXIS 135 (Tenn. Feb. 12, 2014).

Trial court lacked personal jurisdiction over out-of-state ratings agencies regarding allegations of fraud and negligent misrepresentation made by a bank in Tennessee because the bank failed to demonstrate contacts between the ratings agencies and the State of Tennessee with reasonable particularity sufficient to establish a prima facie case of general jurisdiction or specific jurisdiction in Tennessee, when the rating agencies rated investment products that were sold in all fifty states and purchased by the bank. First Cmty. Bank, N.A. v. First Tenn. Bank, 489 S.W.3d 369, 2015 Tenn. LEXIS 1005 (Tenn. Dec. 14, 2015), cert. denied, Fitch Ratings, 136 S. Ct. 2511, 195 L. Ed. 2d 841, 2016 U.S. LEXIS 4094 (U.S. 2016).

For purposes of Tennessee's long-arm statute, the Georgia and Alabama corporations'  motions to dismiss for lack of personal jurisdiction were properly granted because they did not establish significant contacts with Tennessee so as to establish specific in personam jurisdiction as the former Georgia corporation, now an Alabama corporation, and the Alabama corporation never advertised and did not solicit customers in Tennessee; and the corporations did not have continuous and systematic contacts with Tennessee to exercise general in personam jurisdiction over them as they did not purposefully direct their commercial activities to Tennessee residents, and appellant travelled to the corporations'  locations to procure her prescriptions. Turner ex rel. Turner v. Howe, — S.W.3d —, 2016 Tenn. App. LEXIS 970 (Tenn. Ct. App. Dec. 20, 2016), review denied and ordered not published, Turner ex rel. Liam T. v. Howe, — S.W.3d —, 2017 Tenn. LEXIS 336 (Tenn. May 25, 2017).

2. Jurisdiction Found.

Fiduciary shield doctrine did not apply to T.C.A. §§ 20-2-214(a)(6), 20-2-225, because the statutes were coextensive with due process, and defendants, a company's officers, purposefully availed themselves of Tennessee by sending emails to plaintiff equipment supplier for the supplier to fraudulent pay the company instead of its accounts receivable assignee. Simplex Healthcare, Inc. v. Marketlinkx Direct, Inc., 761 F. Supp. 2d 726, 2011 U.S. Dist. LEXIS 7178 (M.D. Tenn. Jan. 25, 2011).

In a Tennessee law firm's breach of contract action, arising from an out-of-state attorney's failure to pay his share of expenses from a matter that the parties litigated together, there was personal jurisdiction over the attorney because he had sufficient minimum contacts due to purposefully directing his activity toward Tennessee to initiate the parties'  contractual relationship. Wolff Ardis, P.C. v. Dailey, — S.W.3d —, 2013 Tenn. App. LEXIS 679 (Tenn. Ct. App. Oct. 11, 2013), appeal denied, Wolf Ardis, PC v. Dailey, — S.W.3d —, 2014 Tenn. LEXIS 211 (Tenn. Mar. 4, 2014).

Trial court erred in dismissing for lack of personal jurisdiction a Tennessee civil engineering company's action for breach of contract and unjust enrichment against a Texas energy company because the energy company purposefully availed itself of conducting business in the state; the contract identified the civil engineering company as a Tennessee company, the energy company knew it was engaging a Tennessee company, and the civil engineering company did all of the work in Tennessee. Crouch Ry. Consulting, LLC v. LS Energy Fabrication, LLC, — S.W.3d —, 2019 Tenn. App. LEXIS 212 (Tenn. Ct. App. Apr. 30, 2019).

Exercise of jurisdiction over a Texas energy company was fair and reasonable because the energy company did not make the courts aware of any substantive social policies of Texas that would be affected by a Tennessee court's exercise of jurisdiction. Crouch Ry. Consulting, LLC v. LS Energy Fabrication, LLC, — S.W.3d —, 2019 Tenn. App. LEXIS 212 (Tenn. Ct. App. Apr. 30, 2019).

Because a Tennessee civil engineering company's action stemmed directly from a Texas energy company's alleged breach of the contract, the energy company's failure to pay the contract price, its contacts with Tennessee were sufficient for specific personal jurisdiction in Tennessee; the energy company purposefully targeted Tennessee when it entered into a business transaction with a Tennessee company for a customized, specialized service to be performed in Tennessee. Crouch Ry. Consulting, LLC v. LS Energy Fabrication, LLC, — S.W.3d —, 2019 Tenn. App. LEXIS 212 (Tenn. Ct. App. Apr. 30, 2019).

3. Jurisdiction Proper.

Chancery court erred in finding that it lacked personal jurisdiction over defendant tobacco product manufacturer because the manufacturer intentionally used a distribution system with the desired result of selling its product in all 50 states, including Tennessee, so as to support a finding that the manufacturer had minimum contacts with the state necessary to invoke the exercise of personal jurisdiction. State v. NV Sumatra Tobacco Trading Co., — S.W.3d —, 2011 Tenn. App. LEXIS 354 (Tenn. Ct. App. June 28, 2011), rehearing denied, State v. NV Sumatra Tobacco Trading Co., — S.W.3d —, 2011 Tenn. App. LEXIS 470 (Tenn. Ct. App. Aug. 24, 2011), rev'd, State v. NV Sumatra Tobacco Trading Co., 403 S.W.3d 726, 2013 Tenn. LEXIS 335 (Tenn. Mar. 28, 2013).

Manufacturer's awareness of the distribution system, through which it receives economic and legal benefits, justifies subjecting the manufacturer to the jurisdiction of every forum within its distributors'  market area; accordingly, a manufacturer that intentionally seeks out a distribution system, with the goal of national distribution, should reasonably expect that its products could be sold throughout the 50 states and that it could be subject to the jurisdiction of every state. This does not completely eradicate a foreign manufacturer's ability to insulate itself from personal jurisdiction in the state of Tennessee, however; if the foreign manufacturer attempts to preclude the distribution and sale of its products in the forum state, it may avoid the jurisdiction of the courts of that state. State v. NV Sumatra Tobacco Trading Co., — S.W.3d —, 2011 Tenn. App. LEXIS 354 (Tenn. Ct. App. June 28, 2011), rehearing denied, State v. NV Sumatra Tobacco Trading Co., — S.W.3d —, 2011 Tenn. App. LEXIS 470 (Tenn. Ct. App. Aug. 24, 2011), rev'd, State v. NV Sumatra Tobacco Trading Co., 403 S.W.3d 726, 2013 Tenn. LEXIS 335 (Tenn. Mar. 28, 2013).

In a Tennessee law firm's breach of contract action, arising from an out-of-state attorney's failure to pay his share of expenses from a matter that the parties litigated together, there was personal jurisdiction over the attorney because after the firm established sufficient minimum contacts, the attorney did not show that it was an unfair or unreasonable burden on him to defend the action in Tennessee. Wolff Ardis, P.C. v. Dailey, — S.W.3d —, 2013 Tenn. App. LEXIS 679 (Tenn. Ct. App. Oct. 11, 2013), appeal denied, Wolf Ardis, PC v. Dailey, — S.W.3d —, 2014 Tenn. LEXIS 211 (Tenn. Mar. 4, 2014).

Trial court erred in dismissing a security company's action against entities for lack of personal jurisdiction because the company established by a preponderance of the evidence that the entities had the minimum contacts necessary to support the trial court's exercise of jurisdiction, and the exercise of jurisdiction was fair and reasonable; the entities knew they were communicating with a Tennessee company regarding the provision of a valuable and specialized service overseas. Advanced Sec. Servs. Evaluation & Training, LLC v. OHR Partners, Ltd., — S.W.3d —, 2018 Tenn. App. LEXIS 149 (Tenn. Ct. App. Mar. 20, 2018).

20-2-226. Service on the secretary of state—Collection of fee.

The secretary of state shall collect a fee of twenty dollars ($20.00) each time process is served on the secretary of state under this chapter, or pursuant to the convention on the service abroad of judicial and extrajudicial documents in civil or commercial matters, signed at The Hague, November 15, 1965, commonly referred to as “The Hague Convention.” The party to a proceeding causing service of process is entitled to recover this fee as costs if such party prevails in the proceeding.

Acts 1998, ch. 890, § 8.

Chapter 3
Lis Pendens

20-3-101. Filing of abstract — Effect of not filing.

  1. When any person, in any court of record, by declaration, petition, bill or cross bill, seeks to fix a lien lis pendens on real estate, or any interest in real estate, situated in the county of suit, in furtherance of the setting aside of a fraudulent conveyance, of subjection of property under return of nulla bona, tracing a trust fund, enforcing an equitable vendor's lien, or otherwise, that person shall file for record in the register's office of the county an abstract, certified by the clerk, containing the names of the parties to the suit, a description of the real estate affected, its ownership and a brief statement of the nature and amount of the lien sought to be fixed.
  2. Until the abstract is so filed, so far as concerns the rights of bona fide purchasers and encumbrancers, for value, of the realty, or any interest in the realty, they shall not be affected.

Code 1932, § 8053; T.C.A. (orig. ed.), § 20-301.

Cross-References. Registration of abstract, §§ 25-5-10725-5-109.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), §§ 89, 90, 329.

Tennessee Forms (Robinson, Ramsey and Harwell), No. 8-801.

Tennessee Jurisprudence, 18 Tenn. Juris., Lis Pendens, §§ 3, 5.

Law Reviews.

The Tennessee Recording System (Toxey H. Sewell), 50 Tenn. L. Rev. 1 (1982).

Comparative Legislation. Lis pendens:

Ala.  Code § 35-4-130 et seq.

Ark.  Code § 16-59-101 et seq.

Ga. O.C.G.A. § 23-1-18.

Ky. Rev. Stat. Ann. § 382.440 et seq.

Miss.  Code Ann. § 11-47-1 et seq.

Mo. Rev. Stat. § 527.260.

N.C. Gen. Stat. § 1-116 et seq.

Va. Code §§ 8.01-268, 8.01-269.

Cited: In re Airport-81 Nursing Care, Inc., 29 B.R. 501, 1983 Bankr. LEXIS 6536 (Bankr. E.D. Tenn. 1983); In re Adams, 57 B.R. 1, 1983 Bankr. LEXIS 4826 (Bankr. M.D. Tenn. 1983); In re Bell, 55 B.R. 246, 1985 Bankr. LEXIS 4923 (Bankr. M.D. Tenn. 1985); Atkins v. Marks, 288 S.W.3d 356, 2008 Tenn. App. LEXIS 349 (Tenn. Ct. App. June 11, 2008); Smith v. Smith, — S.W.3d —, 2008 Tenn. App. LEXIS 557 (Tenn. Ct. App. Sept. 24, 2008); Haggard v. Aguilar, — S.W.3d —, 2010 Tenn. App. LEXIS 760 (Tenn. Ct. App. Dec. 7, 2010); Barone v. Barone, — S.W.3d —, 2012 Tenn. App. LEXIS 218 (Tenn. Ct. App. Apr. 3, 2012).

NOTES TO DECISIONS

1. Application of Other Laws.

In bill to subject property, provisions of § 26-4-104 relating to lien lis pendens contained in chapter dealing with bills to subject property governed over general provisions relating to lis pendens contained in this section. Cannon Mills, Inc. v. Spivey, 208 Tenn. 419, 346 S.W.2d 266, 1961 Tenn. LEXIS 301 (1961).

This section is applicable to the attachment provision of § 29-6-135, and bank's attachment was ineffective in defeating the rights of bona fide purchasers, where that attachment had not been properly filed. American Nat'l Bank & Trust Co. v. Wilds, 545 S.W.2d 749, 1976 Tenn. App. LEXIS 261 (Tenn. Ct. App. 1976).

2. Effect of Lis Pendens.

Lot upon which lien lis pendens was fixed was not subject to execution or attachment at law. Cannon Mills, Inc. v. Spivey, 208 Tenn. 419, 346 S.W.2d 266, 1961 Tenn. LEXIS 301 (1961).

An attaching creditor who records a notice of lis pendens has priority over a bona fide conveyee whose deed is not recorded until after the registration of the lis pendens notice. W. & O. Constr. Co. v. IVS Corp., 688 S.W.2d 67, 1984 Tenn. App. LEXIS 3187 (Tenn. Ct. App. 1984).

Filing of a notice of lien lis pendens neither created nor perfected a lien for purposes of removal of the judgment as a voidable preference under bankruptcy law. In re Ressler, 61 B.R. 403, 1986 Bankr. LEXIS 6099 (Bankr. E.D. Tenn. 1986).

3. Failure to File Abstract.

Where property owners, who brought suit to enforce restrictive covenants upon use of land against defendant's property by imposition of an equitable servitude or negative reciprocal easement, did not file an abstract of the suit as required by this section, and where defendant had entered upon performance of its contract for the purchase of realty without notice of property owner's equitable claim, defendant was a bona fide encumbrancer for value of the tract of land to which no lien lis pendens attached. Land Developers, Inc. v. Maxwell, 537 S.W.2d 904, 1976 Tenn. LEXIS 620 (Tenn. 1976).

It is unnecessary, when compliance has been had with §§ 64-1115 (now § 66-11-115) and 64-1117 (now § 66-11-117 (repealed)), to go further and file the notice of abstract pursuant to § 20-3-101. Moore-Handley, Inc. v. Associates Capital Corp., 576 S.W.2d 354, 1978 Tenn. App. LEXIS 325 (Tenn. Ct. App. 1978).

4. Necessity for Filing.

No one is required, in addition to complying with every requirement of the mechanic's and materialmen's statute, to file lis pendens pursuant to § 20-3-101. Moore-Handley, Inc. v. Associates Capital Corp., 576 S.W.2d 354, 1978 Tenn. App. LEXIS 325 (Tenn. Ct. App. 1978).

5. Effect of Filing.

Architectural firm's filing a notice of lien lis pendens pursuant to this section did not in and of itself create a lien; such a filing was merely a procedural step, and there had to be some other authority, equitable or otherwise, to provide the basis for a lien right. In re Airport-81 Nursing Care, Inc., 32 B.R. 960, 1983 Bankr. LEXIS 5408 (Bankr. E.D. Tenn. 1983).

6. Personalty.

Buildings to be used as branch banks, annexed to the property only by utility hookups and constructed to be portable so they could be moved or sold as market conditions or need changed, were personalty and not subject to lien lis pendens. Hubbard v. Hardeman County Bank, 868 S.W.2d 656, 1993 Tenn. App. LEXIS 564 (Tenn. Ct. App. 1993).

Collateral References. 51 Am. Jur. 2d, Lis Pendens §§ 15, 22-25.

54 C.J.S. Lis Pendens §§ 4-6, 25.

Fraudulent conveyance, doctrine of lis pendens as applicable to actions to avoid or to prevent. 74 A.L.R. 690.

Lis pendens as applicable to suit for divorce or separation. 65 A.L.R.4th 522.

Right to secure new or successive notice of lis pendens in same or new action after loss or cancellation of original notice. 52 A.L.R.2d 1308.

Will contest, necessity of filing notice of lis pendens in. 159 A.L.R. 386.

Lis Pendens 6-11.

20-3-102. Duties of register.

It is the duty of the register immediately to file the abstract and to record the abstract in the lien book.

Code 1932, § 8055; T.C.A (orig. ed.), § 20-303.

Law Reviews.

Preferences, Priorities, and Powers of the State in the Collection of Delinquent Revenue: Tennessee's Tax Enforcement Procedures Act (Donald J. Serkin), 8 Mem. St. U.L. Rev. 707.

20-3-103. Termination of action in which filed.

  1. Where the suit, abstract of the claimed lien in which has been filed and recorded, finally terminates, whether on the merits or otherwise, the court may direct the entry on the lien book in the registry of an order respecting the suit made by it, which order, certified by the clerk, shall be presented to the register, who shall immediately note its date and record it on the lien book at the proper place.
  2. Should no such order be entered by the court, it is the duty of the plaintiff or complainant who filed the notice abstract to cause to be noted of record the fact of termination, or, if the claim is satisfied, the satisfaction of the claim, such notation to be attested in writing by the register or the register's deputy.

Code 1932, § 8056; T.C.A. (orig. ed.), § 20-304.

Textbooks. Tennessee Forms (Robinson, Ramsey and Harwell), No. 8-801.

Tennessee Jurisprudence, 8 Tenn. Juris., Covenants, § 2.

Law Reviews.

Preferences, Priorities, and Powers of the State in the Collection of Delinquent Revenue: Tennessee's Tax Enforcement Procedures Act (Donald J. Serkin), 8 Mem. St. U.L. Rev. 707.

Collateral References. 51 Am. Jur. 2d Lis Pendens §§ 26-28, 32-34, 38.

54 C.J.S. Lis Pendens § 37.

Appeal, writ of error, or motion for new trial, protection, during time allowed for. 10 A.L.R. 415.

Duration of operation of lis pendens as ground upon diligent prosecution of suit. 8 A.L.R.2d 986.

Lis Pendens 11.

20-3-104. [Repealed.]

Compiler's Notes. Former § 20-3-104 (Code 1932, § 8057; T.C.A. (orig. ed.), § 20-305; modified), concerning fees, was repealed by Acts 1985, ch. 87, § 1.

20-3-105. Lien on real estate.

  1. When any person in a court of record seeks to fix a lien lis pendens on real estate, or any interest in real estate, and the court in furtherance of the lien issues a restraining order, the restraining order shall be valid for ninety (90) days only unless:
    1. The court orders a longer period of time to apply; or
    2. Bond is given for the value of the property involved by the party seeking the order.
  2. The abstract filed in the register's office pursuant to this part shall contain information relevant to any restraining order and the duration of the restraining order.

Acts 1983, ch. 105, § 1.

Law Reviews.

Selected Tennessee Legislation of 1983 (N. L. Resener, J. A. Whitson, K. J. Miller), 50 Tenn. L. Rev. 785 (1983).

Chapter 4
Venue

Part 1
Venue of Actions

20-4-101. Transitory actions.

  1. In all civil actions of a transitory nature, unless venue is otherwise expressly provided for, the action may be brought in the county where the cause of action arose or in the county where the individual defendant resides.
  2. If, however, the plaintiff and defendant both reside in the same county in this state, then the action shall be brought either in the county where the cause of action arose or in the county of their residence.
  3. Where the action is brought either in the county where the cause of action arose or in the county where the defendant resides, process may be sent to another county as in local action, and it shall not be necessary nor required that the defendant be in the county of action either when the action is commenced or during the time between the commencement of the action and service of process.

Code 1858, §§ 2808, 2809 (deriv. Acts 1809 (Sept.), ch. 126, § 3); Shan., §§ 4513, 4514; Code 1932, §§ 8640, 8641; Acts 1967, ch. 55, § 1; 1971, ch. 51, § 1; 1972, ch. 446, § 1; T.C.A. (orig. ed.), § 20-401; Acts 2011, ch. 510, § 3.

Compiler's Notes. Acts 2011, ch. 510, § 1 provided that the act  shall be known and cited as the “Tennessee Civil Justice Act of 2011.”

Acts 2011, ch. 510, § 24 provided that the act, which amended subsection (a), shall apply to all liability actions for injuries, deaths and losses covered by the act which accrue on or after October 1, 2011.

Amendments. The 2011 amendment substituted “individual defendant resides” for “defendant resides or is found” at the end of (a).

Effective Dates. Acts 2011, ch. 510, § 24. October 1, 2011.

Cross-References. Divorce action, § 36-4-105.

Venue of chancery courts, § 16-11-114.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 121.

Tennessee Forms (Robinson, Ramsey and Harwell), Nos. 1-8-4.1, 1-8-2, 1-8-12.

Tennessee Jurisprudence, 1 Tenn. Juris., Actions, § 5; 3 Tenn. Juris., Attorney and Client, § 12; 4 Tenn. Juris., Automobiles, § 36; 7 Tenn. Juris., Corporations, § 118; 11 Tenn. Juris., Equity, § 47; 24 Tenn. Juris., Venue, §§ 3, 4; 26 Tenn. Juris., Workers' Compensation, § 47.

Law Reviews.

Abolishing Local Action Rules: A First Step toward Modernizing Jurisdiction and Venue in Tennessee, 34 U. Mem. L. Rev. 251 (2004).

Jurisdiction, Venue and “Localized Actions” in Tennessee (June F. Entman), 39 No. 4 Tenn. B.J. 33 (2003).

Tennessee Workers' Compensation — Where Is the Proper Venue? (D. Andrew Byrne, Ted C. Raynor), 20 Mem. St. U.L. Rev. 189 (1990).

Comparative Legislation. Venue:

Ala.  Code § 6-3-1 et seq.

Ark.  Code § 16-60-101 et seq.

Ga. O.C.G.A. § 9-10-30 et seq.

Ky. Rev. Stat. Ann. § 452.400 et seq.

Miss.  Code Ann. § 11-11-1 et seq.

Mo.  Rev. Stat. § 508.010 et seq.

N.C. Gen. Stat. § 1-76 et seq.

Va.  Code § 8.01-257 et seq.

Cited: Flowers v. Aetna Casualty & Surety Co., 186 Tenn. 603, 212 S.W.2d 595, 1948 Tenn. LEXIS 587 (1948); Williams v. Williams, 193 Tenn. 133, 244 S.W.2d 995, 1951 Tenn. LEXIS 336 (1951); White v. Garner, 192 Tenn. 429, 241 S.W.2d 518, 1951 Tenn. LEXIS 425 (1951); Parker v. Reddick, 196 Tenn. 472, 268 S.W.2d 357, 1954 Tenn. LEXIS 408, 45 A.L.R.2d 1096 (1954); Beckham v. Johnson, 220 Tenn. 572, 421 S.W.2d 94, 1967 Tenn. LEXIS 439 (1967); Romines v. K & S Engineering & Contracting Co., 556 S.W.2d 85, 1977 Tenn. LEXIS 610 (Tenn. 1977); Turpin v. Conner Bros. Excavating Co., 761 S.W.2d 296, 1988 Tenn. LEXIS 242 (Tenn. 1988); Woods v. Fields, 798 S.W.2d 239, 1990 Tenn. App. LEXIS 216 (Tenn. Ct. App. 1990); Valley Fidelity Bank & Trust Co. v. Ayers, 861 S.W.2d 366, 1993 Tenn. App. LEXIS 361 (Tenn. Ct. App. 1993); Davis v. Holland, 31 S.W.3d 574, 2000 Tenn. App. LEXIS 184 (Tenn. Ct. App. 2000); Hawkins v. Tenn. Dep't of Corr., 127 S.W.3d 749, 2002 Tenn. App. LEXIS 536 (Tenn. Ct. App. 2002); Netherland v. Hunter, 133 S.W.3d 614, 2003 Tenn. App. LEXIS 730 (Tenn. Ct. App. 2003); Zakour v. Ut Med. Group, Inc., — S.W.3d —, 2011 Tenn. App. LEXIS 261 (Tenn. Ct. App. May 19, 2011).

NOTES TO DECISIONS

1. Purpose.

The purpose of this statute was to localize transitory actions. Haynes v. Woods, 151 Tenn. 163, 268 S.W. 632, 1924 Tenn. LEXIS 56 (1925), superseded by statute as stated in, Five Star Express v. Davis, 866 S.W.2d 944, 1993 Tenn. LEXIS 413 (Tenn. 1993); Tims v. Carter, 192 Tenn. 386, 241 S.W.2d 501, 1951 Tenn. LEXIS 417 (1951).

The statute was designed to prevent a proceeding whereby a plaintiff would be permitted to catch his neighbor away from home, and the home of his witnesses, and surprise him with a suit which, however able he may be to resist at home, he is wholly unable to do so among strangers. Tims v. Carter, 192 Tenn. 386, 241 S.W.2d 501, 1951 Tenn. LEXIS 417 (1951).

2. Construction.

This section is in derogation of the common law, and will not be given a strained construction. Carlisle v. Cowan, 85 Tenn. 165, 2 S.W. 26, 1886 Tenn. LEXIS 27 (1886).

Where plaintiff, in an action for personal and property damages, caused by collision between an automobile and a freight train, was a resident of Houston County, where the collision occurred, and the defendant was a foreign railroad corporation which had an agent in Houston County on which service of process could be had, the venue of the action was properly in Houston County and not in Davidson County, the place of bringing the suit on the contention that the main operations of the railroad were in Davidson County. Louisville & N. R. Co. v. Hooper, 52 Tenn. App. 436, 375 S.W.2d 868, 1963 Tenn. App. LEXIS 104 (Tenn. Ct. App. 1963), questioned, Bryant v. Central Motor Express, Inc., 218 Tenn. 542, 404 S.W.2d 513, 1966 Tenn. LEXIS 587 (1966).

Under this section residence of plaintiff refers to residence at the time suit is brought rather than residence at the time of occurrence of events giving rise to the action. Northcott v. Holloway, 225 Tenn. 141, 464 S.W.2d 551, 1971 Tenn. LEXIS 288 (1971).

The language of T.C.A. § 20-4-101(b) is mandatory and has been consistently recognized as such. Mills v. Wong, 39 S.W.3d 188, 2000 Tenn. App. LEXIS 626 (Tenn. Ct. App. 2000).

Trial court correctly found that T.C.A. § 20-4-101(b) does not supersede the venue options afforded to homeowners in T.C.A. § 47-18-109(a)(2) for cases brought under the Tennessee Consumer Protection Act; this special venue provision for consumer protection actions is irreconcilable with Tennessee's general venue provision and is thus presumed to be an exception to the general venue provision. Netherland v. Hunter, 133 S.W.3d 614, 2003 Tenn. App. LEXIS 730 (Tenn. Ct. App. 2003), appeal denied, — S.W.3d —, 2004 Tenn. LEXIS 314 (Tenn. Apr. 5, 2004).

3. Application and Effect.

This statute applies to suits in chancery as well as at law, and is not made inapplicable to chancery suits by the use of the word “action” instead of the word “suit.” Childress v. Perkins, 3 Tenn. 87, 1 Cooke, 1812 Tenn. LEXIS 23 (1812); Parkes v. Parkes, 3 Cooper's Tenn. Ch. 647 (1878); State ex rel. Logan v. Graper, 155 Tenn. 565, 4 S.W.2d 955, 1926 Tenn. LEXIS 80 (1927).

In the absence of a statute regulating venue in actions against guardians, the general law governs. State ex rel. Logan v. Graper, 155 Tenn. 565, 4 S.W.2d 955, 1926 Tenn. LEXIS 80 (1927).

In transitory actions the nonresident defendant is for venue purposes, to be treated as a resident of the county of the plaintiff, and it follows that the plaintiff may bring suit against the nonresident in the county in which the plaintiff resides. Arrowood v. McMinn County, 173 Tenn. 562, 121 S.W.2d 566, 1938 Tenn. LEXIS 43, 119 A.L.R. 855 (1938).

The right of an individual, regardless of his residence, to sue in a transitory action a debtor, regardless of his residence, wherever found, cannot be questioned, especially in view of this section. Phillips v. Johns-Manville Sales Corp., 183 Tenn. 266, 191 S.W.2d 554, 1946 Tenn. LEXIS 210 (1946).

If both parties reside in same county, action must be filed in that county though transitory, otherwise venue is where the defendant can be found. Tims v. Carter, 192 Tenn. 386, 241 S.W.2d 501, 1951 Tenn. LEXIS 417 (1951).

In an action for damages against a railway company arising from a collision in Cheatham County, where it appeared that the company maintained an agent and office in Cheatham County, but that its principal or “home” office was in Davidson County and the plaintiff, who resided in Cheatham County, elected to bring the action in Davidson County, the mandatory provision of this section did not apply, and the plaintiff had the right to bring the action in Davidson County. Skaggs v. Tennessee C. R. Co., 193 Tenn. 384, 246 S.W.2d 55, 1952 Tenn. LEXIS 303 (1952).

Dismissal for lack of venue is not a dismissal on the merits. Burton v. Borden Foods Co., 494 S.W.2d 775, 1972 Tenn. LEXIS 309 (Tenn. 1972).

In actions for misconduct of deputies, the common-law rule fixing venue exclusively in the situs of the defendant county applies instead of the general venue provisions of this section. O'Neal v. De Kalb County, 531 S.W.2d 296, 1975 Tenn. LEXIS 550 (Tenn. 1975).

A transitory action can be brought in any jurisdiction in which the defendant is found. Garland v. Seaboard C. R. Co., 658 S.W.2d 528, 1983 Tenn. LEXIS 726 (Tenn. 1983).

Generally, the court in which a principal action is brought, being a proper court in which to bring that action, has jurisdiction and may determine ancillary or incidental proceedings, notwithstanding that the venue of an action as to such latter matters would be, under other circumstances, in another county. Insituform of North America, Inc. v. Miller Insituform, Inc., 695 S.W.2d 198, 1985 Tenn. App. LEXIS 2857 (Tenn. Ct. App. 1985).

The issues of proper venue are contingent upon whether there is proper joinder of parties. Fred's Finance Co. v. Fred's of Dyersburg, Inc., 741 S.W.2d 903, 1987 Tenn. App. LEXIS 3203 (Tenn. Ct. App. 1987).

In a family's medical malpractice suit against a doctor, his employer, and a hospital, as the family and the employer were in the same county (the hospital was not), and the cause of action arose out of medical treatment provided in that county, transfer of venue to that county under T.C.A. § 20-4-101(b) was proper; since the entire case could have been brought in that county initially, transfer there pursuant to T.C.A. § 16-1-116 was permissible. Pack v. Ross, 288 S.W.3d 870, 2008 Tenn. App. LEXIS 223 (Tenn. Ct. App. Apr. 9, 2008).

Venue was proper in county where breach of contract action was brought in a dispute between mortgage broker and investor because parties understood that payment would be made to mortgage broker in a particular county. First S. Mortg. Corp. v. Weisser, — S.W.3d —, 2008 Tenn. App. LEXIS 371 (Tenn. Ct. App. June 26, 2008).

Appellee medical center was a material defendant for purposes of establishing a common residence with the developer for venue purposes and Davidson County was a county providing proper venue; thus, the trial court incorrectly dismissed the developer's amended complaint for improper venue. Hermosa Holdings, Inc. v. Mid-Tennessee Bone & Joint Clinic, P.C., — S.W.3d —, 2009 Tenn. App. LEXIS 282 (Tenn. Ct. App. Mar. 16, 2009), overruled in part, Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 2011 Tenn. LEXIS 623 (Tenn. July 21, 2011).

Venue regarding claims against a doctor was proper pursuant to T.C.A. § 20-4-101(b) only in the county where the doctor lived and worked, and the same claims made against the doctor in an action in another county had to be dismissed; there was no authority to consolidate claims in the other county with claims in the doctor's county. Suggs v. Gallaway Health Care Ctr., — S.W.3d —, 2011 Tenn. App. LEXIS 185 (Tenn. Ct. App. Apr. 18, 2011), appeal denied, In re Estate of Suggs, — S.W.3d —, 2011 Tenn. LEXIS 769 (Tenn. Aug. 24, 2011).

4. —Effect as to Other Statutes.

Acts 1868-1869, ch. 22, creating the law court of Humboldt which provided that residents of districts of Gibson County outside of the districts making up the Humboldt law court should not be sued in that court did not violate Tenn. Const. art. XI, § 8 as being inconsistent with the general law governing transitory actions as set out in this section, because the legislature provided in this section that it should apply unless otherwise provided and in the instant case it was otherwise provided. White v. Garner, 192 Tenn. 429, 241 S.W.2d 518, 1951 Tenn. LEXIS 425 (1951).

5. “Cause of Action” — Scope.

Without attempting to give an inflexible definition, it may be stated generally that a “cause of action” includes all the facts which together constitute the plaintiff's right to maintain the action. Mattix v. Swepston, 127 Tenn. 693, 155 S.W. 928, 1913 Tenn. LEXIS 13 (1913).

6. Local and Transitory Actions Distinguished.

Actions against municipal corporations for personal injuries are inherently local, and must be brought in the county in which such corporations have their existence and location, and the form of process used to institute suit cannot change the nature of the action. Nashville v. Webb, 114 Tenn. 432, 85 S.W. 404, 1904 Tenn. LEXIS 97 (1905), superseded by statute as stated in, Five Star Express v. Davis, 866 S.W.2d 944, 1993 Tenn. LEXIS 413 (Tenn. 1993).

A true statement of the test between a local and a transitory action is whether the injury is done to a subject matter which, in its nature, could not arise beyond the locality of its situation, in contradistinction to the subject causing the injury, the typical illustration of a local action being an injury to real estate, and of a transitory action being an injury to the person. Mattix v. Swepston, 127 Tenn. 693, 155 S.W. 928, 1913 Tenn. LEXIS 13 (1913); Burger v. Parker, 154 Tenn. 279, 290 S.W. 22, 1926 Tenn. LEXIS 124 (1926).

The characteristic feature of a transitory action is that, by this section, the right of action follows the person of the defendant. Brown v. Brown, 155 Tenn. 530, 296 S.W. 356, 1926 Tenn. LEXIS 77 (1927).

7. Presence Within Jurisdiction When Suit Begun — Necessity.

The right of suit in all transitory actions follows, but does not precede, the person of the defendant, and his temporary presence in the county, though not as a resident, gives the courts of such county jurisdiction of transitory actions against him, where process is served on him while he is present therein, but jurisdiction is not acquired where suit is brought against one not a resident of the county, who, at the time of its institution, was not actually within the county where the suit was instituted. If the suit be brought before such defendant comes within the jurisdiction of the court, and process be served upon him after he comes within such jurisdiction, the suit may be abated on plea of defendant. Childress v. Perkins, 3 Tenn. 87, 1 Cooke, 1812 Tenn. LEXIS 23 (1812); Carlisle v. Cowan, 85 Tenn. 165, 2 S.W. 26, 1886 Tenn. LEXIS 27 (1886); Nashville v. Webb, 114 Tenn. 432, 85 S.W. 404, 1904 Tenn. LEXIS 97 (1905), superseded by statute as stated in, Five Star Express v. Davis, 866 S.W.2d 944, 1993 Tenn. LEXIS 413 (Tenn. 1993); Haynes v. Woods, 151 Tenn. 163, 268 S.W. 632, 1924 Tenn. LEXIS 56 (1925), superseded by statute as stated in, Five Star Express v. Davis, 866 S.W.2d 944, 1993 Tenn. LEXIS 413 (Tenn. 1993); Hamilton Nat'l Bank v. Watkins, 172 Tenn. 83, 110 S.W.2d 311, 1937 Tenn. LEXIS 53 (1937).

This section is not applicable to an action instituted against a nonresident of the county while he was not within the county. Carlisle v. Cowan, 85 Tenn. 165, 2 S.W. 26, 1886 Tenn. LEXIS 27 (1886).

Upon defendant's being observed passing through the county, process cannot be effectively sued out and lodged with officer to be served should defendant come again into the county after his departure without service on him. Haynes v. Woods, 151 Tenn. 163, 268 S.W. 632, 1924 Tenn. LEXIS 56 (1925), superseded by statute as stated in, Five Star Express v. Davis, 866 S.W.2d 944, 1993 Tenn. LEXIS 413 (Tenn. 1993).

Where a nonresident defendant in a suit to recover on a promissory note was out of the state when the bill was filed, the court acquired no jurisdiction by the subsequent service on the defendant, within the county, of an alias subpoena. Hamilton Nat'l Bank v. Watkins, 172 Tenn. 83, 110 S.W.2d 311, 1937 Tenn. LEXIS 53 (1937).

Where defendant in a transitory action was not in the county at the time the suit was commenced but was later served with process it was immaterial whether defendant came into the county from another county or another state. Hamilton Nat'l Bank v. Watkins, 172 Tenn. 83, 110 S.W.2d 311, 1937 Tenn. LEXIS 53 (1937).

The presence of a defendant in the county, though not a resident, gives jurisdiction to the courts of the county if the suit be instituted and summons served upon him while he is in the county. Sherrill v. Stevenson, 174 Tenn. 672, 130 S.W.2d 110, 1938 Tenn. LEXIS 138 (1939).

Burden of proof was on defendant to sustain factual allegations in his plea in abatement to effect that he was not within county when suit was filed. Allen & Bean, Inc. v. Miller, 61 Tenn. App. 373, 454 S.W.2d 367, 1970 Tenn. App. LEXIS 296 (Tenn. Ct. App. 1970).

8. Parties in Same County.

If both parties reside in the same county, a transitory action must be brought there, and tried in courts convenient to litigants and witnesses. Haynes v. Woods, 151 Tenn. 163, 268 S.W. 632, 1924 Tenn. LEXIS 56 (1925), superseded by statute as stated in, Five Star Express v. Davis, 866 S.W.2d 944, 1993 Tenn. LEXIS 413 (Tenn. 1993); Tims v. Carter, 192 Tenn. 386, 241 S.W.2d 501, 1951 Tenn. LEXIS 417 (1951).

An action to recover damages against an individual and a foreign corporation, where plaintiff and the individual defendant resided in the same county, and the other defendant is a foreign corporation, the venue of the action is in the county where plaintiff and the individual defendant reside, especially where the foreign corporation has an agent in such county on whom summons could be served, in view of this section and §§ 20-4-104, 20-6-301 (repealed). McClearen v. United States Fidelity & Guaranty Co., 168 Tenn. 268, 77 S.W.2d 451, 1934 Tenn. LEXIS 51 (1935).

In a suit for the unlawful killing of plaintiff's intestate in an automobile accident where some of the defendants were nonresidents of the state and others were residents of a different county from plaintiff the suit was properly brought in the county of plaintiff's residence where the nonresident defendants were served under the provisions of §§ 20-2-203, 20-2-205, 20-2-206 and the defendants who were residents of the other county were served by counterpart from the county of plaintiff's residence. Carter v. Schackne, 173 Tenn. 44, 114 S.W.2d 787, 1937 Tenn. LEXIS 11 (1938).

When the plaintiff and a material defendant or defendants reside in the same county, this county being the county where the cause of action accrued, the county of the residences of these parties should be the county of action for venue purposes, and under such circumstances when there are any residents of the state who live in another county and are proper defendants they may be brought into the county of residence of the plaintiff and the defendants by counterpart summons for purpose of suit. Tims v. Carter, 192 Tenn. 386, 241 S.W.2d 501, 1951 Tenn. LEXIS 417 (1951).

In a tort action where both parties reside in the same county the subject matter is localized in the county of their residence and the court of that county is the only court having jurisdiction, and a defendant cannot by consent or waiver confer such jurisdiction on the court of another county. Curtis v. Garrison, 211 Tenn. 339, 364 S.W.2d 933, 1963 Tenn. LEXIS 355 (1963).

This section proscribes the institution of a transitory action in this state where both parties are residents of the same county in another state. Ivey v. Dean, 219 Tenn. 408, 410 S.W.2d 408, 1966 Tenn. LEXIS 540 (1966).

Venue was not localized when plaintiff lived in the same county that the unincorporated association had an agent since residence of unincorporated association was county where it maintained its principal office or place of business. Garland v. Seaboard C. R. Co., 658 S.W.2d 528, 1983 Tenn. LEXIS 726 (Tenn. 1983).

Although subsection (b) does not by its terms apply to multiple parties, the Tennessee supreme court has applied it in cases where the plaintiff and one of several defendants reside in the same county and the cause of action arose there. Winters v. Healthtrust, Inc., 836 S.W.2d 584, 1992 Tenn. App. LEXIS 443 (Tenn. Ct. App. 1992).

Venue of a medical malpractice action was the county of residence of the plaintiffs and the hospital where the cause of action arose, not the county of residence of the physician and the physician's employer. Bing v. Baptist Mem. Hospital-Union City, 937 S.W.2d 922, 1996 Tenn. App. LEXIS 390 (Tenn. Ct. App. 1996).

Proper joinder of parties under Tenn. R. Civ. P. 20 does not change the venue analysis under T.C.A. § 20-4-101; the fact that there were multiple defendants from multiple counties added did not change the fact that if plaintiff was suing only the defendant, the proper venue would be pursuant to T.C.A. § 20-4-101(b). Mills v. Wong, 39 S.W.3d 188, 2000 Tenn. App. LEXIS 626 (Tenn. Ct. App. 2000).

Even if T.C.A. § 20-4-101(b) applied to an order of protection issued to a wife, a husband's challenge to venue failed because the parties did not reside in the same county in Tennessee, rather the wife resided in Texas when she filed the petition for an order of protection. Ferrari-Bullock v. Randall, — S.W.3d —, 2012 Tenn. App. LEXIS 447 (Tenn. Ct. App. June 28, 2012).

When, in a health care liability suit, physicians sued in one county raised the comparative negligence of a patient's primary physician, who resided in another county, and the patient filed an amended complaint adding the primary physician, under T.C.A. § 20-1-119 and Tenn. R. Civ. P. 15.01, venue was properly transferred to the county where the patient and primary physician resided, in which the cause of action also arose, because the patient's amended complaint, rather than being an amendment to the original complaint, completely superseded the original complaint such that the court had to evaluate venue based on the parties in the amended complaint. Barrett v. Chesney, — S.W.3d —, 2015 Tenn. App. LEXIS 790 (Tenn. Ct. App. Sept. 28, 2015), review denied and ordered not published, — S.W.3d —, 2016 Tenn. LEXIS 274 (Tenn. Apr. 7, 2016).

Because the parties resided in Campbell County and the alleged actions underlying plaintiff's claims purportedly occurred in Campbell County, the statute localized venue in Campbell County alone, and the trial court did not err in finding that it lacked subject matter jurisdiction over this action; however, as the trial court did not adjudicate the case on the merits, it should not have dismissed the case with prejudice. Bruce v. Jackson, — S.W.3d —, 2019 Tenn. App. LEXIS 234 (Tenn. Ct. App. May 17, 2019).

9. Submission to Jurisdiction by Appearance.

Where a creditor brought an action in attachment against his debtor and an attachment defendant in the county of the residence of the attachment defendant, who filed a cross bill as an interpleader and paid the fund into court, the debtor submitted to the jurisdiction of the court by appearance, answer, and stipulations, although she was a resident of another county. John Weis, Inc. v. Reed, 22 Tenn. App. 90, 118 S.W.2d 677, 1938 Tenn. App. LEXIS 9 (Tenn. Ct. App. 1938).

10. Service on Commissioner as Agent.

The commissioner of insurance (now commissioner of commerce and insurance) when appointed as agent for service is agent for the whole state and may be served regardless of the location of the insurance company's principal place of business or of where the cause of action arose. Cartmell v. Mechanics' Ins. Co., 167 Tenn. 498, 71 S.W.2d 688, 1934 Tenn. LEXIS 7 (1934).

Where the company continued to do business in the state after appointment or designation of the commissioner as agent for process, and did not revoke the appointment, the commissioner remained servable, after the enactment of the Code of 1932 in suit brought in any county where the complainant resided even though the Code of 1932 did not carry forward those provisions of the law under which the appointment was made. Cartmell v. Mechanics' Ins. Co., 167 Tenn. 498, 71 S.W.2d 688, 1934 Tenn. LEXIS 7 (1934).

Where complainants, residents of Davidson County, brought suit against a foreign fraternal insurance corporation doing business under the lodge system and service of process was on the insurance commissioner, the suit had to be brought in Davidson County and the chancery court of Maury County had no jurisdiction. Shirley v. Sovereign Camp, W. O. W., 20 Tenn. App. 290, 98 S.W.2d 511, 1936 Tenn. App. LEXIS 26 (Tenn. Ct. App. 1936).

11. Service on Defendant in Criminal Action.

The fact that defendant's presence in the county of suit was as a defendant in a criminal prosecution did not exempt him from service unless the criminal prosecution was instituted for the bare purpose of bringing him into the county for service of process there. Curtis v. Kyte, 21 Tenn. App. 115, 106 S.W.2d 234, 1937 Tenn. App. LEXIS 13 (Tenn. Ct. App. 1937).

12. Cross Summons.

Where, in an action to recover damages for wrongful death, cross summonses were issued from the circuit court of the county where the original action was brought, instead of from the court of the cross defendants' residence, as required by this section, the procedure was clearly irregular and illegal as process, and was, therefore, illegal for any purpose. Nunn v. Walker, 186 Tenn. 685, 212 S.W.2d 665, 1948 Tenn. LEXIS 602 (1948).

13. Bill Showing Want of Jurisdiction — Dismissal.

Where a chancery bill shows on its face that the defendants are citizens of another county, and process is served upon them in their county, the bill may be dismissed on motion, and a plea in abatement is not necessary. Parker v. Porter, 12 Tenn. 81, 1833 Tenn. LEXIS 17 (1833).

14. Particular Types of Actions.

15. —Action Against City for Damages to Land.

An action against a city to recover damages for injury to land situated in another county, caused by the city taking, under the power of eminent domain, water which would otherwise flow through the land, can be brought only in the county where the city is located, and the rule that an action for injuries to land is local, being based on only technical reasons or private convenience, must yield to the rule that a city can be sued only in the county where it is located, since the latter rule is based upon public policy. Piercy v. Johnson City, 130 Tenn. 231, 169 S.W. 765, 1914 Tenn. LEXIS 21, L.R.A. (n.s.) 1915F1029 (1914).

16. —Actions Arising Out of Use of Highways.

This section and §§ 20-2-203, 20-2-205, 20-2-206 are to be construed in pari materia so that under such construction the venue of a cause of action arising out of the use of the highways commenced under §§ 20-2-203, 20-2-205, 20-2-206 will be the county of the plaintiff's residence. Carroll v. Matthews, 172 Tenn. 590, 113 S.W.2d 742, 1937 Tenn. LEXIS 101 (1938); Carter v. Schackne, 173 Tenn. 44, 114 S.W.2d 787, 1937 Tenn. LEXIS 11 (1938); Thomas v. Altsheler, 191 Tenn. 640, 235 S.W.2d 806, 1951 Tenn. LEXIS 368 (1951).

Sections 20-2-203, 20-2-206, 20-2-207 authorizing suit in this state against a nonresident for a wrongful killing caused by operation of a motor vehicle over highways within the state, together with this section, make county of plaintiff's residence the residence of the nonresident defendant for venue purposes, and where some defendants were nonresidents and others were residents of another county within the state, all could be sued in county of plaintiff's residence. Carter v. Schackne, 173 Tenn. 44, 114 S.W.2d 787, 1937 Tenn. LEXIS 11 (1938).

Venue of an action brought by a nonresident against another nonresident for damages resulting from an automobile accident must be in the county where the accident occurred. Thomas v. Altsheler, 191 Tenn. 640, 235 S.W.2d 806, 1951 Tenn. LEXIS 368 (1951).

17. —Actions Involving Corporations.

For purpose of determining venue of action in which corporation is party, the place in which it has principal place of business or principal office is generally considered as its “residence.” Skaggs v. Tennessee C. R. Co., 193 Tenn. 384, 246 S.W.2d 55, 1952 Tenn. LEXIS 303 (1952).

Statutory requirement that venue be laid in county where both parties reside did not apply to action of plaintiff injured in county of his residence by train of corporate defendant with office and agent in that county, the action having been brought in different county where defendant maintained its principal office and place of business. Skaggs v. Tennessee C. R. Co., 193 Tenn. 384, 246 S.W.2d 55, 1952 Tenn. LEXIS 303 (1952).

In a wrongful death suit against four corporations brought after a decedent died in a nursing home, venue was proper in the county in which the nursing home was located and a material defendant, one of the corporations, had its place of business. Ward v. Nat'l Healthcare Corp., — S.W.3d —, 2007 Tenn. App. LEXIS 695 (Tenn. Ct. App. Nov. 15, 2007), appeal denied, — S.W.3d —, 2008 Tenn. LEXIS 289 (Tenn. Apr. 14, 2008).

18. —Actions Against Unincorporated Associations.

Rule of construction for determining a corporation's residence was applicable to unincorporated association. Garland v. Seaboard C. R. Co., 658 S.W.2d 528, 1983 Tenn. LEXIS 726 (Tenn. 1983).

19. —Actions Against State Officials.

In declaratory judgment action by county officials against heads of state departments seeking to have state statute declared unconstitutional, T.C.A. § 20-4-101 was not applicable because action of such nature against state was not transitory, but local; venue for suits against state officials in Davidson County was established by § 4-4-104. Morris v. Snodgrass, 871 S.W.2d 484, 1993 Tenn. App. LEXIS 129 (Tenn. Ct. App. 1993).

Both mayor and deputy sheriff resided in Knox County and events in issue occurred in Knox County, and there was therefore no basis for filing suit against officials in Davidson County; thus, the Davidson County chancery court was an improper venue. State v. Tennessee Peace Officers Stds. Comm'n, — S.W.3d —, 2008 Tenn. App. LEXIS 625 (Tenn. Ct. App. Oct. 16, 2008).

20. —Collection of Debt.

Where the gravamen of the action is one to collect a debt, the default in breach consists of the failure to pay money and the cause of action accrues where the default occurs, which would necessarily be in the county where the creditor resides. Insituform of North America, Inc. v. Miller Insituform, Inc., 695 S.W.2d 198, 1985 Tenn. App. LEXIS 2857 (Tenn. Ct. App. 1985).

In an action on a sworn account, a motion to dismiss based on improper venue was denied because under T.C.A. § 20-4-101, T.C.A. § 48-208-101, and T.C.A. § 48-208-102, a debtor had a registered office, agent, and business office in the county where the action was filed; the debtor was a limited liability company. Fed. Express v. Am. Bicycle Group, — S.W.3d —, 2008 Tenn. App. LEXIS 80 (Tenn. Ct. App. Feb. 19, 2008).

When plaintiff filed a breach of contract action in Montgomery County against defendant to collect money allegedly owing for services plaintiff rendered in North Carolina, a trial court properly found that plaintiff's action was a transitory action governed by T.C.A. § 20-4-101(a), and pursuant to the statute, venue was proper in Sullivan County, the residence of defendant. Forrest Erectors, Inc. v. Holston Glass Co., — S.W.3d —, 2011 Tenn. App. LEXIS 618 (Tenn. Ct. App. Nov. 14, 2011).

Trial court erred in finding that venue for plaintiff corporation's oral contract action against defendant, a purported independent contractor, was not in Knox County because the undisputed proof demonstrated plaintiff's action was to collect a debt, specifically commissions owed by defendant to plaintiff, the debt was to be paid in Knox County as was established by the parties'  oral contract, defendant's sales were reported to plaintiff in Knox County, meetings attended by defendant were held in Knox County, and as such, venue was proper in Knox County, pursuant to T.C.A. § 20-4-101. Masquerade Fundraising, Inc. v. Stott, — S.W.3d —, 2012 Tenn. App. LEXIS 97 (Tenn. Ct. App. Feb. 14, 2012).

21. —Death by Wrongful Act.

An action to recover damages for the death of plaintiff's minor son is a transitory action, that is, such a cause of action as may have been inflicted anywhere. Tims v. Carter, 192 Tenn. 386, 241 S.W.2d 501, 1951 Tenn. LEXIS 417 (1951).

When a mother voluntarily dismissed a wrongful death suit against a railroad and a conductor brought in the mother's individual capacity, as well as the mother's representative capacity as administratrix of the decedent's estate, the “common county rule” did not deprive the trial court of subject matter jurisdiction to award discretionary costs against the mother because: (1) There were two material defendants, each of whom lived in a different county; and (2) No parties lived in the county where the claim arose. Freeman v. CSX Transp., Inc., 359 S.W.3d 171, 2010 Tenn. App. LEXIS 691 (Tenn. Ct. App. Nov. 3, 2010).

22. —Interpleader.

Bill of interpleader lies in the county of the residence of either or both of the defendant claimants. Rules as to venue fully stated in John Weis, Inc. v. Reed, 22 Tenn. App. 90, 118 S.W.2d 677, 1938 Tenn. App. LEXIS 9 (Tenn. Ct. App. 1938).

23. —Next Friend — Suit by.

Where an incompetent person sues by next friend, as affecting the jurisdiction of the court, the next friend is not technically nor substantially a party to the action, in view of this section and § 20-6-301 (repealed). Shirley v. Sovereign Camp, W. O. W., 20 Tenn. App. 290, 98 S.W.2d 511, 1936 Tenn. App. LEXIS 26 (Tenn. Ct. App. 1936).

24. —Nuisances.

Action for damages sustained by virtue of a nuisance consisting of smoke and noxious gases from smelting works operated by defendant in Tennessee was a personal and not local action and did not involve title to land or assertion of a right to, or interest in land, and although complainants were residents of Georgia where their property was located they had a right to maintain their suits in the courts of Tennessee. Ducktown Sulphur, Copper & Iron Co. v. Barnes, 60 S.W. 593, 1900 Tenn. LEXIS 201 (Tenn. 1900).

25. —Partnership — Claims Against.

In a suit on a claim against a partnership for services rendered, the venue was properly laid in the county where the partnership was located and was doing business, rather than in the county of one of the partners. Southgate v. Linton, 181 Tenn. 540, 181 S.W.2d 888, 1944 Tenn. LEXIS 274 (1944).

26. —Personal Representative — Suit as to.

An action of debt against the administrator of an estate is transitory and is governed by the provisions of this statute relating to such actions. Sherrill v. Stevenson, 174 Tenn. 672, 130 S.W.2d 110, 1938 Tenn. LEXIS 138 (1939).

Where an action of debt against the administratrix of an estate who was a resident of a county other than that in which she qualified was commenced by warrant obtained at a time while she was out of the county, the circuit court of the county in which she was qualified obtained no jurisdiction of the cause. Sherrill v. Stevenson, 174 Tenn. 672, 130 S.W.2d 110, 1938 Tenn. LEXIS 138 (1939).

Wrongful death action by plaintiff administrator, a resident of Putnam County, was properly filed in Rutherford County where defendant administrator was at the time suit was instituted, though plaintiff's beneficiaries and defendant administrator both resided in DeKalb County, since venue statute is for the benefit of the parties, that is the litigants and the witnesses, and not for the benefit of beneficiaries who may participate in the recovery. Denny v. Webb, 199 Tenn. 39, 281 S.W.2d 698, 1955 Tenn. LEXIS 426 (1955).

It is the actual residence of a personal representative, not the county of official qualification, which is of legal significance for venue purposes under this statute. Commercial Truck & Trailer Sales, Inc. v. McCampbell, 580 S.W.2d 765, 1979 Tenn. LEXIS 427 (Tenn. 1979).

27. —Removal of Testamentary Guardian Resident Elsewhere.

Where action to remove testamentary guardian is brought in chancery court of county where testator died, where his will was probated and where such guardian took out letters of guardianship, but the appointment was made while guardian and ward lived in another county in which they still lived, venue is properly challenged by plea in abatement. State ex rel. Logan v. Graper, 155 Tenn. 565, 4 S.W.2d 955, 1926 Tenn. LEXIS 80 (1927).

28. —Rescinding Contract.

Where in a suit to rescind a contract of sale of personalty, suit is not brought in the county of the seller, a plea in abatement by the seller lies, though a lien is claimed against the goods. N. C. Blanchard Co. v. Doak, 167 Tenn. 385, 70 S.W.2d 21, 1933 Tenn. LEXIS 51 (1934) (Decided prior to amendment).

29. —Suit on Bond of County Officer.

Action against sheriff of one county, and sureties on his bond, for an assault by him in another county, is a transitory one, though he be sued in his official capacity, and the common law rule to the contrary does not obtain since the Code. Burger v. Parker, 154 Tenn. 279, 290 S.W. 22, 1926 Tenn. LEXIS 124 (1926).

The provisions of this section no longer apply to the determination of venue in workers' compensation cases; that evaluation is governed exclusively by former § 50-6-225(c)(1). Five Star Express v. Davis, 866 S.W.2d 944, 1993 Tenn. LEXIS 413 (Tenn. 1993).

30. —Obstruction of Right-of-Way.

The right of action for the obstruction of a right-of-way appurtenant to the right to cut and remove timber is transitory, as the cause of action does not consist alone of the defendant's wrongful conduct, but embraces plaintiff's rights under the contract which were destroyed by the defendant's misconduct. Mattix v. Swepston, 127 Tenn. 693, 155 S.W. 928, 1913 Tenn. LEXIS 13 (1913).

31. —Workers' Compensation Cases.

Actions under the worker's compensation statute are personal and not local, and are controlled by the statutes as to venue. Chambers v. Sanford & Treadway, 154 Tenn. 134, 289 S.W. 533, 1926 Tenn. LEXIS 111 (1926), overruled in part, Five Star Express v. Davis, 866 S.W.2d 944, 1993 Tenn. LEXIS 413 (Tenn. 1993), superseded by statute as stated in, Ferguson v. Ram Enters., 900 S.W.2d 19, 1995 Tenn. LEXIS 268 (Tenn. 1995); Redman v. Dupont Rayon Co., 165 Tenn. 585, 56 S.W.2d 737, 1932 Tenn. LEXIS 90 (1932), overruled in part, Five Star Express v. Davis, 866 S.W.2d 944, 1993 Tenn. LEXIS 413 (Tenn. 1993).

A suit under § 50-1018 (now § 50-6-225) providing that either employer or employee could submit matter to the judge of the county court in which the accident occurred, is within the exception “unless otherwise expressly provided.” Borden Mills, Inc. v. Manis, 173 Tenn. 440, 121 S.W.2d 523, 1938 Tenn. LEXIS 25 (1938); Brown v. Stone & Webster Engineering Corp., 181 Tenn. 293, 181 S.W.2d 148, 1944 Tenn. LEXIS 373 (1944), overruled in part, Five Star Express v. Davis, 866 S.W.2d 944, 1993 Tenn. LEXIS 413 (Tenn. 1993).

The local jurisdiction in cases involving disputes over or failure to agree on compensation under the Worker's Compensation Law is governed by the provisions of § 50-1018 (now § 50-6-225) and not by the general statute with reference to venue and under such section the venue is in the county where the accident occurred. Borden Mills, Inc. v. Manis, 173 Tenn. 440, 121 S.W.2d 523, 1938 Tenn. LEXIS 25 (1938).

Suit could not be filed for compensation in Smith County residence of employee for accident occurring in Anderson County, if employing corporation did not have an agent or office in Smith County, even though insurer had authorized insurance commissioner to accept service for it in all cases arising in the state. Brown v. Stone & Webster Engineering Corp., 181 Tenn. 293, 181 S.W.2d 148, 1944 Tenn. LEXIS 373 (1944), overruled in part, Five Star Express v. Davis, 866 S.W.2d 944, 1993 Tenn. LEXIS 413 (Tenn. 1993).

In worker's compensation proceeding where accident occurred in one county and employer, a foreign corporation, had its place of business in such county but employee brought suit against employer and its supposed insurance carrier in another county where nonresident carrier had office but it developed that another insurance company, also nonresident, was the carrier and such carrier had no office in county where suit was brought, employee could not substitute proper carrier and continue suit in county where originally brought. General Acci. Fire & Life Assurance Corp. v. Kirkland, 207 Tenn. 72, 338 S.W.2d 549, 1960 Tenn. LEXIS 428 (1960).

Worker's compensation cases must be brought (1) in the county of petitioner's residence, or (2) in the county in which the accident happened, if the defendant is subject to service of process in either of those counties, and if the insurance company alone is being sued, and service of process can be obtained on the insurance commissioner, venue is restricted to the county of petitioner's residence or where the accident occurred; or, (3) that the petition may be filed in any county of the state where the defendant maintains an office or agent for service of process only if the defendant is not servable in either of the counties referred to aforementioned in keeping with the act. Insurance Co. of North America v. Lane, 215 Tenn. 376, 386 S.W.2d 513, 1965 Tenn. LEXIS 626 (1965), overruled in part, Five Star Express v. Davis, 866 S.W.2d 944, 1993 Tenn. LEXIS 413 (Tenn. 1993).

Worker's compensation cases are of a transitory nature within the meaning of the 1971 amendment to this section which permits civil actions of a transitory nature either in county where action arose or in county where defendant resides or is found. Burton v. Borden Foods Co., 494 S.W.2d 775, 1972 Tenn. LEXIS 309 (Tenn. 1972).

The 1971 amendment to this action which permits transitory actions to be maintained in county where cause of action arose or where defendant resides or is found is remedial and can be applied retrospectively and allows a worker's compensation case to be brought in county where cause of action arose although the plant had since closed, no agent of employer remained in county and the cause of action arose before effective date of amendment. Burton v. Borden Foods Co., 494 S.W.2d 775, 1972 Tenn. LEXIS 309 (Tenn. 1972).

Proper venue for a worker's compensation action against the insurance company is established in the county of the employee's residence, under the “unless venue is otherwise expressly provided for” clause in the general venue statute, § 20-401 (now § 20-4-101), by the amendment adding the last sentence of subdivision (a)(3) of § 56-2-103, which provides the qualifications of an insurance company to do business in the state. Sikes v. Colonial Rubber Co., 575 S.W.2d 275, 1978 Tenn. LEXIS 691 (Tenn. 1978), overruled in part, Five Star Express v. Davis, 866 S.W.2d 944, 1993 Tenn. LEXIS 413 (Tenn. 1993).

Under § 50-1018 (now § 50-6-225), venue of a worker's compensation action lies in the county in which the petitioner resides, or in the county in which the accident or injury was incurred, but subject to the general rules relating to transitory actions, including the requirement that the defendant be servable with process in the county where the suit was brought, as in other civil cases. Sikes v. Colonial Rubber Co., 575 S.W.2d 275, 1978 Tenn. LEXIS 691 (Tenn. 1978), overruled in part, Five Star Express v. Davis, 866 S.W.2d 944, 1993 Tenn. LEXIS 413 (Tenn. 1993).

Employer in worker's compensation action, a foreign corporation with a manufacturing plant in the county in which the accident occurred, was not subject to suit in the county in which the claimant resided. Sikes v. Colonial Rubber Co., 575 S.W.2d 275, 1978 Tenn. LEXIS 691 (Tenn. 1978), overruled in part, Five Star Express v. Davis, 866 S.W.2d 944, 1993 Tenn. LEXIS 413 (Tenn. 1993).

Where a worker's compensation action instituted by an employer and its insurance carrier was brought in the county of residence of the employee, venue was properly laid, even though the accident happened in a different county where the employer had its principal place of business. Volner v. Davis, 624 S.W.2d 555, 1981 Tenn. LEXIS 504 (Tenn. 1981), overruled in part, Five Star Express v. Davis, 866 S.W.2d 944, 1993 Tenn. LEXIS 413 (Tenn. 1993).

Where a Tennessee forum is in fact available to a workers' compensation claimant, T.C.A. § 50-6-225, the workers' compensation venue statute, controls the issue of venue; however, where a Tennessee forum is not available under T.C.A. § 50-6-225, venue is determined pursuant to T.C.A. § 20-4-101 and the claimant is free to bring the action in the county in which the employer resides or is found. Ferguson v. Ram Enters., 900 S.W.2d 19, 1995 Tenn. LEXIS 268 (Tenn. 1995).

Although employee complained of the venue in which the employer and its insurer brought their petitions alleging fraud in the procurement of workers'  compensation benefits, a fraud claim brought under T.C.A. § 50-6-225(a)(1) however required reconsideration of the original workers'  compensation settlement and had to be filed in the same court that exercised jurisdiction over the original workers'  compensation claim; even if the employer and the insurer's suit was not a reconsideration, the employee waived employee's objection to venue by filing a notice to take a deposition in the county court selected by the employer and its insurer. Federated Rural Elec. Ins. Exch. v. Hill, — S.W.3d —, 2007 Tenn. App. LEXIS 152 (Tenn. Ct. App. Mar. 26, 2007), appeal denied, — S.W.3d —, 2007 Tenn. LEXIS 952 (Tenn. Oct. 22, 2007), appeal denied, — S.W.3d —, 2007 Tenn. LEXIS 989 (Tenn. Oct. 22, 2007).

32. —Breach of Warranty.

Proper venue of an action for breach of warranty of sale of chicken feed was in county where the original solicitation was received and orders placed, where the feed was delivered, processed, placed in use or in transit for use, and where the contract of sale was completed and where the breach occurred. Mid-South Milling Co. v. Loret Farms, Inc., 521 S.W.2d 586, 1975 Tenn. LEXIS 693 (Tenn. 1975).

33. Incompetent Persons.

Where husband and wife were residents of same county at time wife was adjudged mentally incompetent, wife was thereafter incapable of changing her domicile or residence and husband could not maintain action for divorce in county to which wife was removed after having been adjudged insane. Ensley v. Ensley, 205 Tenn. 323, 326 S.W.2d 481, 1958 Tenn. LEXIS 338 (1958).

34. —Breach of Bail Bond Contract.

Venue in Williamson County was proper in a breach of a bail bond contract case, even though the suit was not filed in the county in which an obligor arose, as the cause of action arose when an arrestee forfeited a bond by failing to appear in Williamson County for a court appearance. Am. Bonding Co. v. Vaughn, — S.W.3d —, 2011 Tenn. App. LEXIS 486 (Tenn. Ct. App. Sept. 2, 2011).

Collateral References. 77 Am. Jur. 2d Venue §§ 29-35.

1 C.J.S. Actions § 1.

Acknowledgment, necessity and sufficiency of statements as to venue in certificate of. 29 A.L.R. 72.

Independent venue requirements as to cross complaint or similar action by defendant seeking relief against a codefendant or third party. 100 A.L.R.2d 693.

Relationship between “residence” and “domicile” under venue statutes. 12 A.L.R.2d 757.

Sufficiency of certificate of acknowledgment. 25 A.L.R.2d 1124.

Validity of contractual provision authorizing venue of action in particular place, court, or county. 69 A.L.R.2d 1324.

Validity of contractual provision limiting place or court in which action may be brought. 31 A.L.R.4th 404.

Venue of damage action for breach of real estate sales contract. 8 A.L.R.3d 489.

Venue of wrongful death action. 58 A.L.R.5th 535.

Venue 2.

20-4-102. District in which tort arose.

  1. When the plaintiff and defendant are both residents of the same county but reside in different districts within the venue of separate courts, a tort action may be brought in the court within the venue of the district where the cause of action arose, and the process may be served in other districts in the county not within the venue of the court.
  2. [Deleted by 2011 amendment.]

Acts 1953, ch. 34, §§ 3, 4 (Williams, §§ 8641.3, 8641.4); T.C.A. (orig. ed.), § 20-403; Acts 2011, ch. 510, § 4.

Compiler's Notes. Acts 2011, ch. 510, § 1 provided that the act  shall be known and cited as the “Tennessee Civil Justice Act of 2011.”

Acts 2011, ch. 510, § 24 provided that the act, which deleted former subsection (b), shall apply to all liability actions for injuries, deaths and losses covered by the act which accrue on or after October 1, 2011.

Amendments. The 2011 amendment deleted (b) which read: “This section shall also apply to corporations, either domestic or foreign, that maintain an office or agency, or are otherwise amenable to service of process, in a district in the county where the cause of action arose, but outside of the district within the venue of the court where the cause of action arose and where the action is pending.”

Effective Dates. Acts 2011, ch. 510, § 24. October 1, 2011.

Textbooks. Tennessee Jurisprudence, 4 Tenn. Juris., Automobiles, § 36; 24 Tenn. Juris., Venue, § 4.

Law Reviews.

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 241.

Cited: Hawkins v. Tenn. Dep't of Corr., 127 S.W.3d 749, 2002 Tenn. App. LEXIS 536 (Tenn. Ct. App. 2002).

NOTES TO DECISIONS

1. Application of Section.

Acts 1953, ch. 34 applied where cause of action was in esse at time of the passage of the act. Dowlen v. Fitch, 196 Tenn. 206, 264 S.W.2d 824, 1954 Tenn. LEXIS 365, 41 A.L.R.2d 791 (1954), rehearing denied, 196 Tenn. 206, 266 S.W.2d 357, 1954 Tenn. LEXIS 381, 41 A.L.R.2d 791 (1954).

2. Effect on Other Laws.

The legislature in enacting this section had in mind a general provision relating to venue in tort cases and did not intend to repeal or modify any special statutory provisions relating to particular types of cases. Keefe v. Atkins, 199 Tenn. 183, 285 S.W.2d 338, 1955 Tenn. LEXIS 444 (1955).

Collateral References.

Venue in action for malicious prosecution. 12 A.L.R.4th 1278.

Venue 8, 8.5.

20-4-103. Actions in rem.

In actions commenced by the attachment of property without personal service of process, and in cases where the suit is brought to obtain possession of personal property, or to enforce a lien or trust deed or mortgage, or where it relates to real property, the attachment may be sued out or suit brought in any county where the real property, or any portion of it, lies, or where any part of the personal property may be found.

Code 1858, § 2810 (deriv. Acts 1847-1848, ch. 173); Shan., § 4515; mod. Code 1932, § 8642; T.C.A. (orig. ed.), § 20-404.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 121.

Tennessee Jurisprudence, 3 Tenn. Juris., Attachment and Garnishment, §§ 3, 34, 101; 10 Tenn. Juris., Ejectment, § 13; 24 Tenn. Juris., Venue, § 4.

Law Reviews.

Venue — Localizing Transitory Actions in Tennessee Civil Proceedings, 35 Tenn. L. Rev. 520.

NOTES TO DECISIONS

1. Construction.

This section must be strictly construed, since it is in the nature of an exception to § 20-4-101. N. C. Blanchard Co. v. Doak, 167 Tenn. 385, 70 S.W.2d 21, 1933 Tenn. LEXIS 51 (1934).

Provisions respecting actions commenced by attachment of property without personal service of process must be strictly construed. Culwell v. Culwell, 23 Tenn. App. 389, 133 S.W.2d 1009, 1939 Tenn. App. LEXIS 48 (Tenn. Ct. App. 1939).

2. Jurisdiction and Application.

This section was intended to operate in the cases specified, so as to include ejectment and trespass to land, and it gives the jurisdiction, where it is sought to recover possession of personal property, or to enforce a mortgage or lien, or where the suit relates to land, to the court of the county where any part of the land lies or any of the personal property is found, and such extension consists in the application of the provisions of the statute to cases commenced by attachment. Campbell v. Hampton, 79 Tenn. 440, 1883 Tenn. LEXIS 82 (1883); Brewer v. De Camp Glass Casket Co., 139 Tenn. 97, 201 S.W. 145, 1917 Tenn. LEXIS 92 (1918).

In an action in attachment, jurisdiction over the attached property depends upon the validity of the attachment proceedings and not upon jurisdiction over the person of the defendant. John Weis, Inc. v. Reed, 22 Tenn. App. 90, 118 S.W.2d 677, 1938 Tenn. App. LEXIS 9 (Tenn. Ct. App. 1938).

3. —Land Lying in More Than One County.

If the land sued for is altogether in one county, the suit must be brought in that county, although the grant covering it may embrace lands in another county. Draper v. Kirkland, 38 Tenn. 260, 1858 Tenn. LEXIS 168 (1858); Campbell v. Hampton, 79 Tenn. 440, 1883 Tenn. LEXIS 82 (1883).

This statute contemplates a single tract of land lying partly in two or more counties. French v. Buffatt, 161 Tenn. 500, 33 S.W.2d 92, 1930 Tenn. LEXIS 35 (1930).

In suit to quiet title if land lies in two counties, the courts of either county would have jurisdiction. Cothron v. Scott, 60 Tenn. App. 298, 446 S.W.2d 533, 1969 Tenn. App. LEXIS 317 (Tenn. Ct. App. 1969).

Where a tract of land lies partly in two counties, jurisdiction of a court in either county is undoubted. Medlock v. Ferrari, 602 S.W.2d 241, 1979 Tenn. App. LEXIS 397 (Tenn. Ct. App. 1979).

4. —Action in Wrong County.

Where an action was for an injury to real estate in Hickman County, the pendency of an action in Williamson County, where the court was without jurisdiction, and where a judgment rendered would have been void, was no bar to an action in Hickman County. Hall v. Southhall Bros. & Carl, 146 Tenn. 129, 240 S.W. 298, 1921 Tenn. LEXIS 9 (1921).

The inherent power of the chancery court to declare a lien upon property in certain cases upon nonresident publication without attachment, does not apply in an attachment suit brought in a county other than that in which the land is situated and the nonresident defendant is not personally served with process. Culwell v. Culwell, 23 Tenn. App. 389, 133 S.W.2d 1009, 1939 Tenn. App. LEXIS 48 (Tenn. Ct. App. 1939).

Where plaintiff owned a tract of land located in both Hamilton and Marion Counties, and defendant owned a smaller tract located in Marion County but whose description was contained in metes and bounds set forth in plaintiff's tract, a suit filed by plaintiff in Hamilton County chancery court for the purpose of preventing cutting of timber and obtaining a decree declaring deed to defendants to be champertous was properly dismissed for lack of jurisdiction though court had personal jurisdiction of defendants, since legislature in enacting this section and § 16-11-114(2) localized proceedings involving real estate. Carter v. Brown, 196 Tenn. 35, 263 S.W.2d 757, 1953 Tenn. LEXIS 403 (1953).

5. Attachment of Realty.

An attachment on the real property of a nonresident must issue from the court of the county where the property is located, and an attachment from any other county is void. Culwell v. Culwell, 23 Tenn. App. 389, 133 S.W.2d 1009, 1939 Tenn. App. LEXIS 48 (Tenn. Ct. App. 1939).

6. Ejectment.

The venue in ejectment must be proved, but it may be sufficiently proved in other modes than by the oral examination of witnesses or direct proof, and it is satisfactorily proved where the title papers recite that the land lies in the particular county in which the action is brought, where the proof shows that such title papers cover the land in controversy. Gorham v. Jones, 30 Tenn. 353, 1850 Tenn. LEXIS 130 (1850).

7. Injury to Realty.

An action for damages for injury to real estate is a “local action,” and must be brought in the county where the land lies. Hall v. Southhall Bros. & Carl, 146 Tenn. 129, 240 S.W. 298, 1921 Tenn. LEXIS 9 (1921); French v. Buffatt, 161 Tenn. 500, 33 S.W.2d 92, 1930 Tenn. LEXIS 35 (1930).

8. Rescission of Personalty Contract.

In suit by buyer of a business and merchandise to rescind and for the declaration of an equitable lien on the goods, in which suit process was served in Hamilton County on a depositee of the goods who resided there, a plea in abatement by the seller, resident of Warren County, was properly sustained since the proceeding for such lien was ancillary and means of enforcing a decree for rescission. The depositee was not a material party. N. C. Blanchard Co. v. Doak, 167 Tenn. 385, 70 S.W.2d 21, 1933 Tenn. LEXIS 51 (1934).

9. Replevin.

Replevin of personal property may be brought in any county where the property is found, although the parties be residents of another county. Ross v. Bandy, 165 Tenn. 499, 56 S.W.2d 754, 1932 Tenn. LEXIS 75 (1933).

Collateral References. 77 Am. Jur. 2d Venue §§ 10-14, 24.

1 C.J.S. Actions § 52.

Fraud in sale of real property, location of land as governing venue of action for damages for. 163 A.L.R. 1312.

Joining cause of action or prayer for personal relief as affecting venue of action relating to real property. 120 A.L.R. 790.

Leasehold as real property or an interest in real property within statute relating to venue. 104 A.L.R. 235.

License in real property as involving freehold or title or interest in real estate, within constitutional or statutory provision relating to venue. 138 A.L.R. 147.

Lien as estate or interest in land within venue statute. 2 A.L.R.2d 1261.

Mortgages securing same debt or portions thereof, upon real property in different counties, right to maintain single suit to foreclose. 110 A.L.R. 1477.

Oil and gas royalty as real or personal property. 56 A.L.R.4th 539.

Partition of land, venue of suit for. 128 A.L.R. 1232.

Timber contract, venue of action arising out of, after delay in performance. 164 A.L.R. 465.

Venue of action for rescission or cancellation of contract relating to interest in land. 77 A.L.R.2d 1014.

Venue of action involving real estate situated in two or more counties or districts. 169 A.L.R. 1245.

When action deemed to be for recovery of personal property within venue statute. 126 A.L.R. 1190.

Venue 5.1-5.5.

20-4-104. Business office of party.

For all civil actions, if the defendant is not a natural person, the action shall be brought in:

  1. The county where all or a substantial part of the events or omissions giving rise to the cause of action accrued;
  2. The county where any defendant organized under the laws of this state maintains its principal office; or
    1. If the defendant is not organized under the laws of this state, the county where the defendant's registered agent for service of process is located; or
    2. If the defendant does not maintain a registered agent within this state, the county where the person designated by statute as the defendant's agent for service of process is located.

Code 1858, § 2811 (deriv. Acts 1845-1846, ch. 55, § 2; 1849-1850, ch. 136; 1851-1852, ch. 136); Shan., § 4516; Code 1932, § 8643; T.C.A. (orig. ed.), § 20-40; Acts 2011, ch. 510, § 2.

Compiler's Notes. Acts 2011, ch. 510, § 1 provided that the act shall be known and cited as the “Tennessee Civil Justice Act of 2011.”

Acts 2011, ch. 510, § 24 provided that the act, which rewrote this section, shall apply to all liability actions for injuries, deaths and losses covered by the act which accrue on or after October 1, 2011.

Amendments. The 2011 amendment rewrote this section which read: “When a corporation, partnership or individual has an office or agency in any county for the transaction of business, actions growing out of, or connected with, the business of that office or agency, may be brought in the county in which the office or agency is located.”

Effective Dates. Acts 2011, ch. 510, § 24. October 1, 2011.

Textbooks. Tennessee Jurisprudence, 1 Tenn. Juris., Agency, § 57; 7 Tenn. Juris., Corporations, §§ 91, 118, 121; 24 Tenn. Juris., Venue, §§ 2, 4.

Law Reviews.

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 241.

Cited: Cartmell v. Mechanics' Ins. Co., 167 Tenn. 498, 71 S.W.2d 688, 1934 Tenn. LEXIS 7 (1934); Flowers v. Aetna Casualty & Surety Co., 186 Tenn. 603, 212 S.W.2d 595, 1948 Tenn. LEXIS 587 (1948); Commercial Truck & Trailer Sales, Inc. v. McCampbell, 580 S.W.2d 765, 1979 Tenn. LEXIS 427 (Tenn. 1979); Nelson v. Ford Motor Credit Co., 590 S.W.2d 457, 1979 Tenn. App. LEXIS 343 (Tenn. Ct. App. 1979); Five Star Express v. Davis, 866 S.W.2d 944, 1993 Tenn. LEXIS 413 (Tenn. 1993).

NOTES TO DECISIONS

1. Effect of Statute.

This section localized actions where an office or agency is maintained. Chambers v. Sanford & Treadway, 154 Tenn. 134, 289 S.W. 533, 1926 Tenn. LEXIS 111 (1926), overruled in part, Five Star Express v. Davis, 866 S.W.2d 944, 1993 Tenn. LEXIS 413 (Tenn. 1993), superseded by statute as stated in, Ferguson v. Ram Enters., 900 S.W.2d 19, 1995 Tenn. LEXIS 268 (Tenn. 1995).

The provisions of this section authorizing service of process on foreign corporation's local agent, and the provision authorizing service on the commissioner of insurance (now commissioner of commerce and insurance), confer cumulative rights. McClearen v. United States Fidelity & Guaranty Co., 168 Tenn. 268, 77 S.W.2d 451, 1934 Tenn. LEXIS 51 (1935).

2. Matters Determining Jurisdiction.

The county in which the action may be brought depends upon the question as to who is the proper person upon whom the process is to be served. Toppins v. E. T., V. & G. R.R. Co., 73 Tenn. 600, 1880 Tenn. LEXIS 191 (1880).

3. Action as to Corporation.

Nonresident bus passenger may bring action against incorporated bus company for personal injuries sustained in accident in any county wherein that corporation maintains an office or agency, even though accident occurred in another county. Hamilton v. Shrider, 196 Tenn. 667, 270 S.W.2d 316, 1954 Tenn. LEXIS 435 (1954).

T.C.A. § 20-4-104 has been construed as allowing the plaintiff to bring the action in the county in which the entity maintained an office; the statute did not, however, require that plaintiff do so, and thus the patron properly brought his action for damages against the company in Sullivan County. TEG Enters. v. Miller, — S.W.3d —, 2006 Tenn. App. LEXIS 730 (Tenn. Ct. App. Nov. 14, 2006).

4. —Service.

A foreign corporation may be served by the attachment of its property in any county where such property is found, regardless of the fact that its directors and officers reside in another county, and this is particularly true where it does not appear that the corporation was at that time doing business in the state, so as to render service of process on resident directors and officers valid. Brewer v. De Camp Glass Casket Co., 139 Tenn. 97, 201 S.W. 145, 1917 Tenn. LEXIS 92 (1918).

In action against a foreign fraternal benefit society, process could not be served on the financial secretary of a local camp since he was not an officer or agent of the society, the cause of action not arising out of any act of or dealings with the local camp or the secretary. Shirley v. Sovereign Camp, W. O. W., 20 Tenn. App. 290, 98 S.W.2d 511, 1936 Tenn. App. LEXIS 26 (Tenn. Ct. App. 1936).

Workers' compensation cases must be brought (1) in the county of petitioner's residence, or (2) in the county in which the accident happened, if the defendant is subject to service of process in either of those counties, and if the insurance company alone is being sued, and service of process can be obtained on the insurance commissioner, venue is restricted to the county of petitioner's residence or where the accident occurred; or, (3) that the petition may be filed in any county of the state where the defendant maintains an office or agent for service of process only if the defendant is not servable in either of the counties referred to aforementioned in keeping with the act. Insurance Co. of North America v. Lane, 215 Tenn. 376, 386 S.W.2d 513, 1965 Tenn. LEXIS 626 (1965), overruled in part, Five Star Express v. Davis, 866 S.W.2d 944, 1993 Tenn. LEXIS 413 (Tenn. 1993).

Where nonresident employer did not have an office or agency in any county in Tennessee at time of service, service of process on a nonresident employee of such nonresident employer while such employee was in the state to pick up employer's mail did not constitute valid service on employer. Ayers v. Gentry, 34 F.R.D. 477, 1963 U.S. Dist. LEXIS 10483 (D. Tenn. 1963).

Venue was proper in the county in which a restaurant filed suit because the Secretary of State's office was in that county; a refuse company transacted business in Tennessee, and thus, T.C.A. § 20-4-104(3)(B), read in conjunction with T.C.A. § 48-15-104(b), operated to make the Secretary of State the registered agent for the company because it did not have a registered agent in the state. J. Alexander's Holdings, LLC v. Republic Servs., — S.W.3d —, 2017 Tenn. App. LEXIS 307 (Tenn. Ct. App. May 12, 2017).

5. Action as to Partnership.

Where suit was brought against individuals doing business as a partnership to recover on a claim for services rendered the partnership the venue was properly in the county of the situs of the partnership and not in the county of the residence of one of the partners, as the matter complained of grew out of the partnership status. Southgate v. Linton, 181 Tenn. 540, 181 S.W.2d 888, 1944 Tenn. LEXIS 274 (1944).

6. Attachment in Lieu of Service.

Where process may be served, so as to bring the defendant before the court, an attachment in lieu of personal service to obtain jurisdiction will not lie, and the statutes will operate in favor of a nonresident who could have been sued here by service of process on his agent. Green v. Snyder, 114 Tenn. 100, 84 S.W. 808, 1904 Tenn. LEXIS 74 (1905); Frolich & Barbour v. Hanson, 155 Tenn. 601, 296 S.W. 353, 1926 Tenn. LEXIS 85 (1927).

7. Joinder of Defendants.

Nonresident motorist, by service of process on secretary of state, was properly made party defendant to action by injured bus passenger against incorporated bus company for personal injuries, in county where bus company maintained an office although accident occurred in another county. Hamilton v. Shrider, 196 Tenn. 667, 270 S.W.2d 316, 1954 Tenn. LEXIS 435 (1954).

8. Suit Brought in Wrong Court — Effect.

Where suit to wind up an insolvent corporation was brought in wrong county, and receiver was appointed, court had jurisdiction to allow such receiver a fee for work done by him. Crosby Milling Co. v. Grant, 7 Tenn. App. 162, — S.W. —, 1927 Tenn. App. LEXIS 19 (Tenn. Ct. App. 1927).

9. Transitory Actions.

A transitory action can be brought in any jurisdiction in which the defendant is found. Garland v. Seaboard C. R. Co., 658 S.W.2d 528, 1983 Tenn. LEXIS 726 (Tenn. 1983).

10. —Unincorporated Associations.

Court rejected contention that this section restricted § 20-4-101 as applied to unincorporated association and confined venue of transitory action against business defendant to sole county in which was located defendant's particular office or agency from which the cause of action was considered to “grow out of” or be “connected with.” Garland v. Seaboard C. R. Co., 658 S.W.2d 528, 1983 Tenn. LEXIS 726 (Tenn. 1983).

11. Construction.

Purpose in enacting former chapter 89 was not only to enlarge the scope of the existing service of process statutes but also to expand the construction of this section. Garland v. Seaboard C. R. Co., 658 S.W.2d 528, 1983 Tenn. LEXIS 726 (Tenn. 1983).

Collateral References. 20 C.J.S. Corporations § 1298.

Venue 29.

20-4-105. Objection to venue.

If action is brought in the wrong county, it may be prosecuted to a termination, unless abated by plea of the defendant.

Code 1858, § 2812; Shan., § 4517; Code 1932, § 8644; T.C.A. (orig. ed.), § 20-406.

Cross-References. Pleading, Tenn. R. Civ. P. 7-12.

Textbooks. Tennessee Jurisprudence, 18 Tenn. Juris., Minors, § 28; 24 Tenn. Juris., Venue, §§ 2, 3.

Law Reviews.

Jurisdiction, Venue and “Localized Actions” in Tennessee (June F. Entman), 39 No. 4 Tenn. B.J. 33 (2003).

Venue — Localizing Transitory Actions in Tennessee Civil Proceedings, 35 Tenn. L. Rev. 520.

Cited: Hall v. Southhall Bros. & Carl, 146 Tenn. 129, 240 S.W. 298, 1921 Tenn. LEXIS 9 (1921); Metropolitan Dev. & Housing Agency v. Brown Stove Works, Inc., 637 S.W.2d 876, 1982 Tenn. App. LEXIS 390 (Tenn. Ct. App. 1982).

NOTES TO DECISIONS

1. Form of Process — Effect as to Nature of Action.

A local action cannot be turned into a transitory action, or one in effect transitory, by the device of uniting another person in the action and by serving process on that person in the county in which it is desired to begin the litigation, and then by issuing a counterpart writ to another county against a defendant who could not otherwise be affected, save by an action brought in the latter county, for actions are either transitory or local, and their nature cannot be changed by the forms of process used to institute them. Nashville v. Webb, 114 Tenn. 432, 85 S.W. 404, 1904 Tenn. LEXIS 97 (1905), superseded by statute as stated in, Five Star Express v. Davis, 866 S.W.2d 944, 1993 Tenn. LEXIS 413 (Tenn. 1993).

2. Mode of Pleading in Abatement.

A plea in abatement, for want of jurisdiction of the person of the defendant because the original writ was served in one county upon a nonresident of the state and the counterpart upon the pleading defendant in another county where he resided, must be pleaded in person; but if the plea purport to be in person, it will be so taken although verified and signed by attorney. Shelby v. Johnson & Burk, 26 Tenn. 503, 1847 Tenn. LEXIS 3 (1847); Bank of Tennessee v. Anderson, McDermot & Cobb, 35 Tenn. 669, 1856 Tenn. LEXIS 40 (1856); Turley v. Hornsby, 71 Tenn. 264, 1879 Tenn. LEXIS 72 (1879).

3. Waiver of Jurisdiction.

In action to confirm an exchange of realty belonging to minor, failure to plead in abatement to the jurisdiction did not waive question of jurisdiction. Smartt v. Smartt, 1 Tenn. App. 68, — S.W. —, 1925 Tenn. App. LEXIS 12 (Tenn. Ct. App. 1925).

When plaintiff files suit, he waives any right to dispute venue. Corby v. Matthews, 541 S.W.2d 789, 1976 Tenn. LEXIS 558 (Tenn. 1976).

4. False Return by Sheriff — Effect.

Where an action was brought in a county where none of the defendants resided, the return of the sheriff made on the summons that they were not to be found in his county implied that they were residents of such county, but the falsity of such return may be shown under the plea in abatement by the defendants, where an alias summons was issued upon such return and served on one of the defendants happening to be in the county, and thereupon a counterpart summons was issued to another county and served upon the other defendants. Carlisle v. Cowan, 85 Tenn. 165, 2 S.W. 26, 1886 Tenn. LEXIS 27 (1886).

5. Jurisdiction and Venue on Particular Instances.

6. —Divorce Proceedings.

Limiting the venue of divorce suit does not affect jurisdiction of the subject matter, but confers a waivable personal privilege. Brown v. Brown, 155 Tenn. 530, 296 S.W. 356, 1926 Tenn. LEXIS 77 (1927).

Action for divorce brought in court having jurisdiction of that subject matter, but not in proper county, may be concluded in such court if jurisdiction as to person is waived. Brown v. Brown, 155 Tenn. 530, 296 S.W. 356, 1926 Tenn. LEXIS 77 (1927).

7. —Local Actions Brought in Wrong County.

The courts of a county have no jurisdiction of local actions brought in wrong county, and consent itself cannot give jurisdiction. Nashville v. Webb, 114 Tenn. 432, 85 S.W. 404, 1904 Tenn. LEXIS 97 (1905), superseded by statute as stated in, Five Star Express v. Davis, 866 S.W.2d 944, 1993 Tenn. LEXIS 413 (Tenn. 1993).

8. —Parties Resident in Same County.

If both parties reside in the same county, a transitory action must be brought there and tried in courts convenient to litigants and witnesses, otherwise it follows defendant and does not precede him. Haynes v. Woods, 151 Tenn. 163, 268 S.W. 632, 1924 Tenn. LEXIS 56 (1925), superseded by statute as stated in, Five Star Express v. Davis, 866 S.W.2d 944, 1993 Tenn. LEXIS 413 (Tenn. 1993).

9. —Suit as to Joint Obligors.

Persons jointly liable but living in different counties may be sued in one action. Yancey v. Marriott, Frisby & Co., 33 Tenn. 28, 1853 Tenn. LEXIS 2 (1853); Turley v. Hornsby, 71 Tenn. 264, 1879 Tenn. LEXIS 72 (1879).

10. Costs on Sustaining Plea in Abatement.

Court has power to adjudge costs even though a plea in abatement as to venue is sustained. Brown v. Brown, 155 Tenn. 530, 296 S.W. 356, 1926 Tenn. LEXIS 77 (1927).

11. Venue as to Foreign Corporations.

Defendant foreign corporation could prior to enactment of § 20-4-101, object to venue of action brought in county where automobile accident occurred by service of process on agent designated in another county. Brandon v. Warmath, 198 Tenn. 38, 277 S.W.2d 408, 1955 Tenn. LEXIS 342 (1955).

Section 20-4-101 is remedial and therefore it provides an extra remedy even after suit was pending. Brandon v. Warmath, 198 Tenn. 38, 277 S.W.2d 408, 1955 Tenn. LEXIS 342 (1955).

Collateral References. 77 Am. Jur. 2d Venue §§ 42-47.

1 C.J.S. Actions § 41.

Litigant's participation on merits, after objection to jurisdiction of person made under special appearance or the like has been overruled, as waiver of objection. 62 A.L.R.2d 937.

Prohibition as appropriate remedy to restrain civil action for lack of venue. 93 A.L.R.2d 882.

Right to be tried in county or district in which offense was committed, as susceptible of waiver. 137 A.L.R. 686.

Venue 17, 32(1), 84.

20-4-106. [Repealed.]

Acts 1968, ch. 523, § 1 (17.05); T.C.A., § 20-407, repealed by Acts 2011, ch. 510, § 5, effective October 1, 2011.

Compiler's Notes. Former § 20-4-106 concerned venue of actions against foreign corporations.

20-4-107. Real property — State or agency a party.

Notwithstanding any other law or rule of procedure to the contrary, any action the subject matter of which involves real property in which this state, or any agency of this state, is a party, may be properly instituted in any county in which the property is located.

Acts 1981, ch. 493, § 1.

Law Reviews.

Judicial Review under the Tennessee Uniform Administrative Procedures Act — An Update (Ben H. Cantrell), 13 Mem. St. U.L. Rev. 589 (1984).

Cited: Bowden Bldg. Corp. v. Tennessee Real Estate Comm'n, 15 S.W.3d 434, 1999 Tenn. App. LEXIS 487 (Tenn. Ct. App. 1999); Lanius v. Nashville Elec. Serv., 181 S.W.3d 661, 2005 Tenn. LEXIS 1047 (Tenn. 2005); Williams v. Nicely, 230 S.W.3d 385, 2007 Tenn. App. LEXIS 111 (Tenn. Ct. App. Feb. 28, 2007).

NOTES TO DECISIONS

1. Land Seized for Payment of Taxes.

Where decedent lived in Texas but owned property in Franklin County, Franklin County Chancery Court had jurisdiction to hear case involving the seizure of the land for payment of taxes. Carter v. Olsen, 660 S.W.2d 483, 1983 Tenn. LEXIS 732 (Tenn. 1983).

2. Suits Not Involving Real Property.

Under T.C.A. §§ 4-4-104(a) and 4-5-322, Davidson County had exclusive subject matter jurisdiction over a landowner's counterclaim against the TDOT for acting unfairly toward him by applying billboard regulations to him but not his competitors and disparaging him to his business associates. T.C.A. § 20-4-107, the venue statute for actions involving real property, did not apply. State Ex Rel. Comm'r of the DOT v. Thomas, 336 S.W.3d 588, 2010 Tenn. App. LEXIS 291 (Tenn. Ct. App. Apr. 27, 2010), appeal denied, State ex rel. Comm'r of the DOT v. Thomas, — S.W.3d —, 2010 Tenn. LEXIS 1116 (Tenn. Nov. 18, 2010).

20-4-108. Construction.

Nothing in this part shall be construed to repeal or modify any other specific or special venue provision of state law.

Acts 2011, ch. 510, § 6.

Compiler's Notes. Acts 2011, ch. 510, § 1 provided that the act  shall be known and cited as the “Tennessee Civil Justice Act of 2011.”

Acts 2011, ch. 510, § 24 provided that the act, which enacted this section, shall apply to all liability actions for injuries, deaths and losses covered by the act which accrue on or after October 1, 2011.

Effective Dates. Acts 2011, ch. 510, § 24. October 1, 2011.

Part 2
Change of Venue

20-4-201. Cases in which venue changeable.

In all civil cases at law where the issue is to be tried by jury, and in all cases of issues in courts of equity directed to be tried by jury, either in the circuit or chancery court, in all civil cases before a judge of the court of general sessions, and in all criminal cases:

  1. The venue may be changed, at any time before trial, upon good cause shown, as prescribed in this part; or
  2. A court may issue an order for a special venire of jurors from another county if in its discretion it determines the action to be necessary to ensure a fair trial.

Code 1858, § 2835 (deriv. Acts 1809 (Sept.), ch. 49, § 17; 1815, ch. 166, § 8; 1841-1842, ch. 16, § 1); Acts 1870, ch. 5, § 1; Shan., § 4549; Code 1932, § 8682; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 20-501; Acts 1995, ch. 321, § 1.

Cross-References. Transfer of cases to new county, § 5-2-108.

Transfer of causes in chancery, § 16-11-201.

Textbooks. Tennessee Jurisprudence, 24 Tenn. Juris., Venue, § 6.

Law Reviews.

The Tennessee Court System (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 189.

Cited: Wilson v. State, 2 Tenn. Crim. App. 138, 452 S.W.2d 355, 1969 Tenn. Crim. App. LEXIS 311 (Tenn. Crim. App. 1969); Woodson v. Porter Brown Limestone Co., 916 S.W.2d 896, 1996 Tenn. LEXIS 96 (Tenn. 1996).

NOTES TO DECISIONS

1. Granting Change of Venue.

The change of venue is not a matter of arbitrary discretion, resting upon some uncontrollable whim, caprice, or possible bias of the judge. It is a judicial act to be performed in the mode prescribed by law. Weakley v. Pearce, 52 Tenn. 401, 1871 Tenn. LEXIS 275 (1871); Sells v. King, 58 Tenn. 397, 1872 Tenn. LEXIS 275 (1872).

2. Time for Filing Petition.

Ordinarily there is no particular set time that a petition for a change of venue should be filed. It should though, be filed at the first opportunity after knowledge of the facts upon which the petition is based come to those filing such petition. Tennessee Gas Transmission Co. v. Oakley, 193 Tenn. 638, 249 S.W.2d 880, 1952 Tenn. LEXIS 334 (1952).

Where gas company had obtained at least two continuances after bringing condemnation suit for easement of right-of-way, and filed petition for change of venue on same day that jury was summoned for trial, it was within discretion of trial judge to deny petition in view of fact that grounds therefor were known to petitioners many weeks before date of filing. Tennessee Gas Transmission Co. v. Oakley, 193 Tenn. 638, 249 S.W.2d 880, 1952 Tenn. LEXIS 334 (1952).

3. Wrong Local Jurisdiction.

This section confers no power upon the court to transfer a cause erroneously commenced in the wrong local jurisdiction. Inter-Southern Life Ins. Co. v. Pierce, 161 Tenn. 346, 31 S.W.2d 692, 1930 Tenn. LEXIS 10 (1930).

4. Change In Venire.

Trial court acted within its discretion by granting a change in venire, but not a change in venue, so the jury in defendant's case would be selected from Davidson County rather than Knox County because the record did not reflect any of the jurors who were selected to hear the case were biased in any way, exposed to prejudicial information, or influenced by court officers; the trial occurring in Knox County did not negate the fact that defendant received an untainted jury from another county. State v. Cobbins, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 886 (Tenn. Crim. App. Sept. 12, 2014).

5. Change of Venue Properly Denied.

Trial court did not abuse its discretion by denying plaintiff's motion to change venue in a civil rights action against the county, its officials, and its deputies because as to pre-trial publicity there was no evidence in the record other than the bare and conclusory few statements in plaintiff's affidavit, there was no other testimony by any other witness nor proof regarding threats, demonstrations, or other hostility towards a party, the trial court was careful and thorough in its attempts to insure that no member of the venire or jury was unduly biased by pre-trial knowledge or conceptions about the case, and 12 years elapsed between the incident and the trial. Siler v. Scott, — S.W.3d —, 2019 Tenn. App. LEXIS 271 (Tenn. Ct. App. May 30, 2019).

Collateral References. 77 Am. Jur. 2d Venue §§ 58-64.

21 C.J.S. Courts § 172; 51 C.J.S. Justices of the Peace § 62.

Appearance to apply for change of venue as submission to jurisdiction of court. 111 A.L.R. 934.

Binding effect of order on motion for change of venue, where action is terminated otherwise than on merits and reinstituted. 85 A.L.R.2d 993.

Change of venue as justified by fact that large number of inhabitants of local jurisdiction have interest adverse to party to state civil action. 10 A.L.R.4th 1046.

Choice of venue to which transfer is to be had, where change is sought because of local prejudice. 50 A.L.R.3d 760.

“Civil action” or “civil proceeding” what is, within statute relating to change of venue. 102 A.L.R. 397.

Different or same venue, or place of trial of proceeding or issue, and effect thereof, in respect of main action and ancillary garnishment or attachment. 112 A.L.R. 1173.

Divorce court's jurisdiction over custody and maintenance of child, exclusion of jurisdiction of other local courts by, as affected by right to change of venue. 11 A.L.R. 147, 78 A.L.R. 317, 146 A.L.R. 1153.

Effect of nonsuit, dismissal or discontinuance of action on prior order changing venue. 11 A.L.R.2d 1407.

Lis pendens as affected by change of venue. 71 A.L.R. 109.

Prohibition or mandamus as appropriate remedy to review ruling on change of venue in civil case. 93 A.L.R.2d 802.

Right of defendant in civil action to change of venue upon motion made after time specified by statute or rule in that regard, as affected by fact that codefendant had made such a motion within the prescribed period. 141 A.L.R. 1177.

Right of defendant upon motion made or renewed after plaintiff has closed his case without proving liability on part of codefendant, to change of venue to the county or district which would have been the proper venue but for the joinder of the codefendant. 140 A.L.R. 1287.

Right to change of judges, on issues raised by petition for writ of error coram nobis. 161 A.L.R. 540.

Justices of the peace 73.

20-4-202. One change for each side.

The venue may be changed by the plaintiff or defendant, or both, but not more than once by each, except for causes not in existence when the first change was taken.

Code 1858, § 2836 (deriv. Acts 1819, ch. 43, § 1); Acts 1870, ch. 5, § 2; Shan., § 4550; Code 1932, § 8683; T.C.A. (orig. ed.), § 20-502.

Textbooks. Tennessee Jurisprudence, 24 Tenn. Juris., 6.

NOTES TO DECISIONS

1. Facts Warranting Change.

The circuit judge must be satisfied that the cause set forth for a change of venue is good, and the truth thereof evident and credibly supported, and that an impartial trial cannot be obtained, in order to authorize a change of venue. Conley v. Mason, 2 Shan. 626 (1874).

2. Two Changes for Same Party.

Where the venue was changed twice for the same party and for the same cause or objection, the judgment will be reversed and the case remanded to the original forum for trial. Sells v. King, 58 Tenn. 397, 1872 Tenn. LEXIS 275 (1872).

Collateral References. 77 Am. Jur. 2d Venue § 50.

Guardian ad litem or next friend, power of, to apply for change of venue. 115 A.L.R. 574.

Number of changes of venue, statute limiting. 104 A.L.R. 1494.

Venue 38-41.

20-4-203. Application for change.

The party applying for a change of venue shall make a statement of facts, in writing, under oath or affirmation, that the party verily believes that, owing to prejudice, or other causes then existing, the party cannot have a fair and impartial trial in the county, or before the general sessions judge, where the cause is pending, the truth of which statement shall, in a court of record, be verified and supported by the oath of at least three (3), and before a general sessions judge, of one (1) or more, respectable and disinterested persons.

Code 1858, § 2837 (deriv. Acts 1825, ch. 78, § 1); Acts 1870, ch. 5, § 3; Shan., § 4551; mod. Code 1932, § 8684; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 20-503.

Textbooks. Tennessee Jurisprudence, 24 Tenn. Juris., Venue, § 8.

Law Reviews.

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 241.

Cited: Tennessee Gas Transmission Co. v. Oakley, 193 Tenn. 638, 249 S.W.2d 880, 1952 Tenn. LEXIS 334 (1952).

NOTES TO DECISIONS

1. Practice on Application.

The correct practice is to hear the witnesses for and against the change of venue, in open court, or to cause their depositions to be taken as in other cases, and affidavits in opposition to a change of venue may be received under very special circumstances. Weakley v. Pearce, 52 Tenn. 401, 1871 Tenn. LEXIS 275 (1871); Conley v. Mason, 2 Shan. 626 (1874).

The better practice in all such cases would be to set out all the evidence in a formal bill of exceptions, so that the action of the circuit court may, in a proper case, be reviewed by the Supreme Court. Weakley v. Pearce, 52 Tenn. 401, 1871 Tenn. LEXIS 275 (1871); Roller v. Roller, 67 Tenn. 207, 1874 Tenn. LEXIS 356 (1874); Conley v. Mason, 2 Shan. 626 (1874).

2. —Showing Interest of Compurgators.

It is error to refuse to hear evidence that one of the compurgators was interested in the cause, and, therefore, not such witness as the statute requires. The compurgators may be shown to be interested by counter affidavits, by their examination upon oath in open court, or by the examination of other witnesses. It is not the meaning of the statute that the compurgators may swear to their own respectability and disinterestedness, and that no evidence shall be heard on the other side. Weakley v. Pearce, 52 Tenn. 401, 1871 Tenn. LEXIS 275 (1871).

There can be no valid objection to the affidavit of an agent or attorney in support of the application, where it is supported by the affidavits of the three respectable and disinterested persons. This affidavit should be given in open court. Sells v. King, 58 Tenn. 397, 1872 Tenn. LEXIS 275 (1872).

A change of venue is properly made where the only objection to the validity thereof is based upon the ground that the compurgators, by whose oath the application is verified and supported, are agents and employees of the party applying for the change, where they are shown to be respectable, and there is nothing to show that they are interested in the result of the cause. Conk v. N. & C.R.R., 1 Shannon's Cases 409 (1875).

3. —Exercise of Court's Discretion.

The change of venue is not a matter of arbitrary discretion resting upon some uncontrollable whim, caprice or possible bias of the judge but is a judicial act to be performed in the mode presented by law and in no other mode. Weakley v. Pearce, 52 Tenn. 401, 1871 Tenn. LEXIS 275 (1871).

The discretion of the circuit judge in granting or refusing a change of venue may be revised, and his action reversed, when his discretion has been incautiously or improvidently exercised. Conley v. Mason, 2 Shan. 626 (1874).

Where gas company has obtained at least two continuances after bringing condemnation suit for easement of right-of-way, and filed petition for change of venue on same day that jury was summoned for trial, it was within discretion of trial judge to deny petition in view of fact that grounds therefor were known to petitioners many weeks before date of filing. Tennessee Gas Transmission Co. v. Oakley, 193 Tenn. 638, 249 S.W.2d 880, 1952 Tenn. LEXIS 334 (1952).

4. —Insufficient Orders.

The following order, directing change of venue, is insufficient: “In this cause, the court is pleased to grant the motion of the defendants supported by the affidavits of” four certain named parties, “asking a change of venue, and orders that the venue of this case be changed.” Weakley v. Pearce, 52 Tenn. 401, 1871 Tenn. LEXIS 275 (1871); Roller v. Roller, 67 Tenn. 207, 1874 Tenn. LEXIS 356 (1874).

The following is an insufficient order for change: “On motion of plaintiff John Roller, and for satisfactory reasons shown by affidavits filed in this case, it is ordered that the venue be changed.” Roller v. Roller, 67 Tenn. 207, 1874 Tenn. LEXIS 356 (1874).

5. —Effect of Void Change.

Where the change of venue is void, the court to which the suit is attempted to be transferred has no jurisdiction. Brown v. Haywood, 51 Tenn. 357, 1871 Tenn. LEXIS 175 (1871); Weakley v. Pearce, 52 Tenn. 401, 1871 Tenn. LEXIS 275 (1871); Sells v. King, 58 Tenn. 397, 1872 Tenn. LEXIS 275 (1872); Roller v. Roller, 67 Tenn. 207, 1874 Tenn. LEXIS 356 (1874).

6. —Strict Compliance.

In the change of venue, the provisions of the order of the court must be strictly followed, in order to confer jurisdiction upon the intended court; and where the order of the change of venue directed the transcript of the record to be sent to the court to which the cause was removed, at least 15 days before the sitting of the next term of that court, such order must be complied with, to confer jurisdiction upon that court. M'Henry's Lessee v. Wallen, 10 Tenn. 441, 1830 Tenn. LEXIS 14 (1830); Weakley v. Pearce, 52 Tenn. 401, 1871 Tenn. LEXIS 275 (1871).

The statute does not allow a change of venue as a matter of right or of course, and the change can be made only upon a strict compliance with the statute. Weakley v. Pearce, 52 Tenn. 401, 1871 Tenn. LEXIS 275 (1871); Sells v. King, 58 Tenn. 397, 1872 Tenn. LEXIS 275 (1872).

7. Review.

Where the order changing the venue was void, and the judgment is reversed for that reason, the Supreme Court may remand the case to the court of the original venue, with directions to the court to which the venue was attempted to be changed to transmit or return all the original papers and orders made in the cause to the court of the original venue. Coover v. Davenport, 48 Tenn. 368, 1870 Tenn. LEXIS 71, 2 Am. Rep. 706 (1870); Weakley v. Pearce, 52 Tenn. 401, 1871 Tenn. LEXIS 275 (1871); Roller v Roller, 67 Tenn. 207, 1874 Tenn. LEXIS 356 (1874), or may remand the case to the court of the changed venue for transference to the court of the original venue. Sells v. King, 58 Tenn. 397, 1872 Tenn. LEXIS 275 (1872).

Where a proper case is made out by either party, the change is a matter of right; and the action of the court in ordering or refusing it may, in proper cases, be reviewed. Weakley v. Pearce, 52 Tenn. 401, 1871 Tenn. LEXIS 275 (1871); Sells v. King, 58 Tenn. 397, 1872 Tenn. LEXIS 275 (1872).

The record should show that the statute in regard to the change of venue has been strictly complied with. It should show not only by whom the change of venue is asked for, and that the application is supported by at least three respectable and disinterested persons, but that, in the opinion of the court, the cause for the change is good, and the truth of the allegation made is evident, and that the change of venue is ordered because it appears to the court that the party applying for the change cannot have a fair and impartial trial in the county where the cause is then pending. Weakley v. Pearce, 52 Tenn. 401, 1871 Tenn. LEXIS 275 (1871); Sells v. King, 58 Tenn. 397, 1872 Tenn. LEXIS 275 (1872); Roller v. Roller, 67 Tenn. 207, 1874 Tenn. LEXIS 356 (1874).

Collateral References. 77 Am. Jur. 2d Venue §§ 70, 71.

Change of venue as justified by fact that large number of inhabitants of local jurisdiction have interest adverse to party to state civil action. 10 A.L.R.4th 1046.

Corporations, prejudice against officer, stockholder, or employee of, as ground for change of venue on application of corporation. 63 A.L.R. 1015.

Venue 58-63.

20-4-204. Allowance of change.

If the presiding judge, on due consideration, is of the opinion that the cause set forth is good, and the truth of the cause set forth is evident and credibly supported, the presiding judge shall allow the change asked for.

Code 1858, § 2838 (deriv. Acts 1825, ch. 78, § 1); Shan., § 4552; mod. Code 1932, § 8685; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 20-504.

Law Reviews.

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 241.

NOTES TO DECISIONS

1. No Change, if Suit Filed in Wrong Jurisdiction.

No power is conferred to transfer a suit erroneously commenced in the wrong local jurisdiction. Inter-Southern Life Ins. Co. v. Pierce, 161 Tenn. 346, 31 S.W.2d 692, 1930 Tenn. LEXIS 10 (1930).

2. Discretion of Trial Judge.

When it appears that the request for change of venue was merely made for the purpose of delay, it is within the discretion of the trial court to deny such petition. Tennessee Gas Transmission Co. v. Oakley, 193 Tenn. 638, 249 S.W.2d 880, 1952 Tenn. LEXIS 334 (1952).

Ordinarily it is a matter of discretion for the trial judge to either grant or deny a petition for change of venue, depending entirely upon the facts as disclosed to him. Tennessee Gas Transmission Co. v. Oakley, 193 Tenn. 638, 249 S.W.2d 880, 1952 Tenn. LEXIS 334 (1952).

Collateral References. 77 Am. Jur. 2d Venue § 86.

Contempt in violating injunction in industrial dispute, statute as to right of one charged with, to change of venue. 97 A.L.R. 1354, 124 A.L.R. 751, 127 A.L.R. 868, 150 A.L.R. 819.

Interlocutory order of one judge concerning change of venue as binding on another judge in same case. 132 A.L.R. 72.

Venue 73.

20-4-205. [Repealed.]

Compiler's Notes. Former § 20-4-205 (Code 1858, § 2840 (deriv. Acts 1811, ch. 72, § 17); Shan., § 4554; Code 1932, § 8687; T.C.A. (orig. ed.), § 20-505), concerning time for application and change, was repealed by Acts 1986, ch. 538, § 1.

20-4-206. Court to which changed — Special venire.

  1. The change of venue in a court of record shall be made to the nearest adjoining county free from the like exception, whether in the same judicial district or out of it.
  2. Before a general sessions judge, it shall be made to the nearest judge of the court of general sessions of the same county free from like exceptions.
  3. Upon an order for a special venire of jurors from a court other than the court of record, as authorized by § 20-4-201, the jury selection shall be made from the nearest adjoining county free from the like exception, whether in the same judicial district or out of it.

Code 1858, § 2839 (deriv. Acts 1809 (Sept.), ch. 49, § 17); Acts 1870, ch. 5, § 4; Shan., § 4553; Code 1932, § 8686; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 20-506; Acts 1995, ch. 321, § 2.

Textbooks. Tennessee Jurisprudence, 24 Tenn. Juris., Venue, 7.

NOTES TO DECISIONS

1. Selection of Nearest County.

The fair interpretation of this statute is, that the venue should only be changed to a county out of the circuit, where such county is the nearest free from like exceptions. If the nearest county should be in the circuit, but should not be free from like exceptions, then the venue might be changed to a county out of the circuit, not subject to like exceptions. If none of the adjoining counties are shown to be subject to like exceptions, then it is the imperative duty of the judge to send the cause to the nearest county. Coover v. Davenport, 48 Tenn. 368, 1870 Tenn. LEXIS 71, 2 Am. Rep. 706 (1870).

The nearest county is the one whose county seat or courthouse is nearest to the county from which the venue is proposed to be changed; and the circuit judge should take judicial notice of what county is thus the nearest. Coover v. Davenport, 48 Tenn. 368, 1870 Tenn. LEXIS 71, 2 Am. Rep. 706 (1870).

Upon a change of venue, the law requires that the cause shall be transferred to the nearest adjoining county. The transfer is, of course, to a court of the same character and jurisdiction as the court in which the suit is pending. If there be two courts in the nearest county answering the description, it must necessarily be left to the judge to direct to which court the transfer shall be made; and his action cannot be revised by the supreme court, in the absence of anything showing an abuse of his discretion. Greer v. Whitfield, 72 Tenn. 85, 1879 Tenn. LEXIS 8 (1879).

Collateral References. 77 Am. Jur. 2d Venue §§ 88, 89.

20-4-207. Costs of change.

The party applying for a change of venue shall, in the cases referenced in this part, pay the cost of the transcript and transmission of paper; and, in the discretion of the court, the applicant may be required to give bond, or additional bond, for costs.

Code 1858, § 2841; Shan., § 4555; mod. Code 1932, § 8688; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 20-507.

Collateral References. Costs 155.

20-4-208. Incompetency of judge.

  1. As a further provision to prevent delay in cases of incompetency, it is the duty of the circuit court judges and chancellors, whenever there is a cause before one (1) of them, in which the circuit court judge or chancellor is interested, at the request of the opposite party, to transfer the cause to any court in an adjoining district or division that the adverse party may choose; and the original papers, with a certified copy of all orders, shall be immediately transmitted to the court to which the venue is changed.
  2. Where the judge of any court of law or chancery is incompetent, from any other cause, to try the cause, upon application of either of the parties to the suit, the suit shall be transferred to the nearest court having jurisdiction of such cases where like incompetency does not exist.

Code 1858, § 3924; Acts 1870, ch. 9, § 1; Shan., §§ 5720, 5721; mod. Code 1932, §§ 9906, 9907; T.C.A. (orig. ed.), § 20-508.

Cross-References. Disqualification of judge and grounds of incompetency, § 17-2-101, Tenn. Const., art. VI, § 11.

Special judge, §§ 17-2-10917-2-113.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 621.

Tennessee Jurisprudence, 24 Tenn. Juris., Venue, § 6.

Law Reviews.

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 241.

Collateral References. 77 Am. Jur. 2d Venue § 61.

Affidavit or motion for disqualification of judge as contempt. 70 A.L.R.3d 797.

Disqualification of judge by state in criminal case for bias or prejudice. 68 A.L.R.3d 509.

Disqualification of judge for having decided different case against litigant — state cases. 85 A.L.R.5th 547.

Disqualification of judge for having decided different case against litigant. 21 A.L.R.3d 1369.

Disqualification of original trial judge to sit on retrial after reversal or mistrial. 60 A.L.R.3d 176.

Laws governing judicial recusal or disqualification in state proceeding as violating federal or state constitution. 91 A.L.R.5th 437.

Membership in fraternal or social club or order affected by a case as ground for disqualification of judge. 75 A.L.R.3d 1021.

Prior representation or activity as prosecuting attorney as disqualifying judge from sitting or acting in criminal case. 85 A.L.R.5th 471.

Venue 45.

20-4-209. Transmission of records.

When a change of venue is directed, the clerk of court shall make a transcript of all the minutes, orders and proceedings in the cause, duly certified, and envelope the transcript, together with all the original papers, in a strong wrapper, securely sealed and safely deliver or transmit the package by messenger, registered mail or express to the clerk of the court to which the venue has been changed.

Code 1858, § 2843; Shan., § 4557; mod. Code 1932, § 8690; T.C.A. (orig. ed.), § 20-509.

Cross-References. Certified mail instead of registered mail, § 1-3-111.

Textbooks. Tennessee Jurisprudence, 24 Tenn. Juris., Venue, § 8.

NOTES TO DECISIONS

Decisions Under Prior Law

1. Ordering Transcript Void Under 1809 Act.

The order changing the venue and directing a transcript of the record to be transmitted is unauthorized and void, because it impliedly prohibits the transmission of the original papers. Walker v. Snowden, 31 Tenn. 193, 1851 Tenn. LEXIS 45 (1851), overruled, Mayor, etc., of Nashville v. Wilson, 88 Tenn. 407, 12 S.W. 1082, 1889 Tenn. LEXIS 63 (1890), overruled in part, Mayor, etc., of Nashville v. Wilson, 88 Tenn. 407, 12 S.W. 1082, 1889 Tenn. LEXIS 63 (1890).

Collateral References. Venue 79.

20-4-210. Expense of transmitting records.

The clerk or messenger delivering the packages will be entitled to five cents (5¢) a mile, going and returning, and tolls and ferriages, to be paid in advance by the party applying for the change of venue. If these expenses are paid by the opposing party, they will be taxed in the bill of costs against the opposing party's adversary.

Code 1858, § 2844; Shan., § 4558; Code 1932, § 8691; T.C.A. (orig. ed.), § 20-510.

Cross-References. Clerk's fees for transmittal of record, § 8-21-401.

Collateral References. Costs 155.

20-4-211. Expenses relating to jury.

When a change of venue in any case, either civil or criminal, is ordered by the circuit or criminal courts of this state from one (1) county to another, the jury fees, in trying the case, shall be paid by the county from which the case is sent, and the fees of the officers summoning jurors in cases where the venue is changed shall be accordingly taxed and certified by the clerk in civil cases, and also by the judge and district attorney general in criminal cases, in the same manner as the fees are otherwise certified by law.

Acts 1889, ch. 201; Shan., § 4567; Code 1932, § 8692; modified; T.C.A. (orig. ed.), § 20-511.

Collateral References. Costs 155.

Chapter 5
Abatement and Survival of Actions

20-5-101. No abatement where cause survives.

Actions do not abate by the death or other disability of either party, or by the transfer of any interest in the action, if the cause of action survives or continues.

Code 1858, § 2845 (deriv. Acts 1785, ch. 2, § 2; 1786, ch. 14, § 1; 1819, ch. 16, §§ 1, 3; 1835-1836, ch. 77, § 1); Shan., § 4568; mod. Code 1932, § 8693; T.C.A. (orig. ed.), § 20-601.

Cross-References. Costs on abatement, §§ 20-12-110, 20-12-113.

Death of party during continuance, § 20-7-105.

Motion for judgment against officer, § 25-3-106.

Revival of judgments, title 25, ch. 4.

Substitution of parties, Tenn. R. Civ. P. 25.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 319.

Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 691, 706.

Tennessee Jurisprudence, 1 Tenn. Juris., Abatement, Survival and Revival, § 26; 20 Tenn. Juris., Parties, § 8.

Law Reviews.

An Exegesis of the Ejectment Statutes of Tennessee (R.D. Cox), 18 Mem. St. U.L. Rev. 581 (1988).

The Abatement of Criminal Fines upon Death of Defendant: Punishment, Precedent, and Policy, 11 Mem. St. U.L. Rev. 67.

Wrongful Death Actions in Tennessee (T. A. Smedley), 27 Tenn. L. Rev. 447.

Comparative Legislation. Abatement and survival of actions:

Ala.  Code § 6-5-460 et seq.

Ark.  Code § 16-62-101 et seq.

Ga. O.C.G.A. § 9-2-40 et seq.

Ky. Rev. Stat. Ann. §§ 411.130, 411.140.

Miss.  Code Ann. § 11-7-25 et seq.

Mo. Sup. Ct. R. 52.13.

N.C.  Gen. Stat. § 1A-1, Rule 25.

Va.  Code § 8.01-16 et seq.

Cited: Brummett v. Evans, 148 F. Supp. 309, 1957 U.S. Dist. LEXIS 4020 (D. Tenn. 1957); Miller v. Bomar, 230 F. Supp. 204, 1963 U.S. Dist. LEXIS 6572 (M.D. Tenn. 1963); Commercial Truck & Trailer Sales, Inc. v. McCampbell, 580 S.W.2d 765, 1979 Tenn. LEXIS 427 (Tenn. 1979); Leffew v. Mayes, 685 S.W.2d 288, 1984 Tenn. App. LEXIS 3055 (Tenn. Ct. App. 1984); Brock v. Warren County, 713 F. Supp. 238, 1989 U.S. Dist. LEXIS 5027 (E.D. Tenn. 1989); Thompson v. Williamson County, 219 F.3d 555, 2000 FED App. 233P, 2000 U.S. App. LEXIS 16679 (6th Cir. Tenn. 2000); Rusnak v. Phebus, — S.W.3d —, 2008 Tenn. App. LEXIS 328 (Tenn. Ct. App. May 29, 2008); Timmins v. Lindsey, 310 S.W.3d 834, 2009 Tenn. App. LEXIS 731 (Tenn. Ct. App. Oct. 28, 2009).

NOTES TO DECISIONS

1. Revival of Action.

Two terms after death of a party an action can be abated, but if procedure is not followed the action can be revived by a bill of revivor. Cobb v. Conway, 1 Tenn. 294, 1808 Tenn. LEXIS 16 (1808).

A suit which has abated by the death of either party, may be revived by or against the heirs, personal representatives or assigns who may be legally entitled to decedent's place in the subject matter of the litigation. Burnett v. Layman, 130 Tenn. 423, 171 S.W. 76, 1914 Tenn. LEXIS 41 (1914).

In suit by conservator to have certain deeds of a decedent declared invalid, where plaintiff died prior to submission of case to jury it was error for the trial court to proceed with the submission of the case to the jury without revivor in the name of the proper party complainants and in withholding from the jury the information of the plaintiff's death, however such error was not reversible where no assignment of error was made to this action of the court. Holmes v. Dorris, 55 Tenn. App. 279, 399 S.W.2d 512, 1964 Tenn. App. LEXIS 168 (Tenn. Ct. App. 1964).

Where, in action brought by conservator, court erred in submitting case to jury after receiving word that complainant had died, the action of the chancellor in reviving the cause in the name of the proper parties complainant after the verdict of the jury was received but before a decree was entered cured all defects resulting from the failure of the chancellor to require the cause to be revived before the submission of the case to the jury. Holmes v. Dorris, 55 Tenn. App. 279, 399 S.W.2d 512, 1964 Tenn. App. LEXIS 168 (Tenn. Ct. App. 1964).

Where, in action by conservator of plaintiff to have deeds executed by a deceased declared invalid, the plaintiff died prior to the submission of the case to the jury, defendant was not entitled to a mistrial, but only to have the proceedings suspended until the cause was revived in the name of the proper parties. Holmes v. Dorris, 55 Tenn. App. 279, 399 S.W.2d 512, 1964 Tenn. App. LEXIS 168 (Tenn. Ct. App. 1964).

2. Abatement of Specified Actions.

According to the general rule the legal cause of action for fraud does not survive the death of the defrauded person or the wrongdoer. Carne v. Maryland Casualty Co., 208 Tenn. 403, 346 S.W.2d 259, 1961 Tenn. LEXIS 299 (1961).

3. —Will Contest.

In will contest, the death of one of the contestants was without effect on the jurisdiction of the court; the order of abatement should not have been entered; and order of revival would have been unnecessary and inapt. Winters v. American Trust Co., 158 Tenn. 479, 14 S.W.2d 740, 1928 Tenn. LEXIS 178 (1929).

4. —Inquisition of Lunacy.

In proceeding instituted to have a defendant declared a lunatic and to have a guardian appointed for him and his property, the cause of action does not survive or continue after the death of the defendant, not even for a determination as to whether the costs shall be adjudged against the defendant's estate. Posey v. Posey, 113 Tenn. 588, 83 S.W. 1, 1904 Tenn. LEXIS 52 (1904).

5. —Divorce Suit.

A suit for divorce and alimony does not survive; and the wife cannot, after the death of her husband, bring her bill against his personal representative for alimony, where she failed to enforce her remedy in his lifetime. Even when a proceeding was commenced during his lifetime, it abates at his death, and cannot be carried on against his personal representative. Swan v. Harrison, 42 Tenn. 534, 1865 Tenn. LEXIS 100 (1865); Owens v. Sims, 43 Tenn. 544, 1866 Tenn. LEXIS 85 (1866).

6. —Suits by and Against Public Officers.

A suit for the public benefit prosecuted by a public officer in his official capacity will not abate upon his death or upon the expiration of his term of office, and may be prosecuted by his successor. Felts v. Memphis, 39 Tenn. 650, 1859 Tenn. LEXIS 296 (1859); State ex rel. Sharpe v. Puckett, 75 Tenn. 709, 1881 Tenn. LEXIS 175 (1881). See Polk v. Plummer, 21 Tenn. 500, 1841 Tenn. LEXIS 55, 37 Am. Dec. 566 (1841).

A suit to assert a right against a county, through its financial agent as defendant, as a mandamus suit to compel a county judge to issue a warrant, did not abate, and no revivor against the successor in office was necessary. State ex rel. Sharpe v. Puckett, 75 Tenn. 709, 1881 Tenn. LEXIS 175 (1881).

7. —Defectively Incorporated Municipality.

Where suit was brought on bonds issued by a town and such bonds were declared invalid on account of the invalidity of the law incorporating the city, the judgment declaring the bonds invalid cannot be treated as of no effect on the theory that, as the town was defectively incorporated, there was no one in existence to represent it. Beyer v. Athens, 249 F. 849, 1918 U.S. App. LEXIS 2304 (6th Cir. Tenn. 1918).

8. —Insurance Matters.

Where insured died before commencing action against automobile liability insurer based on alleged bad faith in refusing to settle within the policy limits, the cause of action abated. Carne v. Maryland Casualty Co., 208 Tenn. 403, 346 S.W.2d 259, 1961 Tenn. LEXIS 299 (1961). But see § 20-5-120.

The assignability of a right of action depends on whether it would survive and pass to the personal representative; if it would survive it may be assigned. Dillingham v. Tri-State Ins. Co., 214 Tenn. 592, 381 S.W.2d 914, 1964 Tenn. LEXIS 510 (1964).

Collateral References. 1 Am. Jur. 2d Abatement, Survival and Revival §§ 47-50, 143.

1 C.J.S. Abatement and Revival §§ 3, 4, 133; 25A C.J.S. Death § 16.

Abatement or survival of action for attorney's malpractice or negligence upon death of either party. 65 A.L.R.2d 1211.

Constitutionality of statute allowing suit to be continued against foreign executor or administrator on death of defendant. 40 A.L.R. 796.

Modern status of rule denying a common-law recovery for wrongful death. 61 A.L.R.3d 906.

Mortgagee's death after sale of property but before confirmation of sale, abatement on. 150 A.L.R. 502.

Nunc pro tunc judgment after death of party in action which does not survive. 3 A.L.R. 1423, 68 A.L.R. 261, 104 A.L.R. 654, 158 A.L.R. 1205.

Partnership creditor's right to proceed against estate of deceased partner as affected by survival statutes. 61 A.L.R. 1423.

Recovery, in action for benefit of decedent's estate in jurisdiction which has both wrongful death and survival statutes, of value on earnings decedent would have made after death. 76 A.L.R.3d 125.

Relation between survivability of cause of action and abatability of pending action. 92 A.L.R. 956.

War as affecting pending litigation. 137 A.L.R. 1335, 147 A.L.R. 1298, 148 A.L.R. 1384, 149 A.L.R. 1452, 150 A.L.R. 1418, 154 A.L.R. 1447.

Widow's or family allowance, abatement of action or proceeding for, upon death of beneficiary. 144 A.L.R. 285.

Abatement and Revival 51-57.

20-5-102. Actions surviving death of party.

No civil action commenced, whether founded on wrongs or contracts, except actions for wrongs affecting the character of the plaintiff, shall abate by the death of either party, but may be revived; nor shall any right of action arising hereafter based on the wrongful act or omission of another, except actions for wrongs affecting the character, be abated by the death of the party wronged; but the right of action shall pass in like manner as the right of action described in § 20-5-106.

Code 1858, § 2846 (deriv. Acts 1835-1836, ch. 77, § 1); Shan., § 4569; Code 1932, § 8694; Acts 1967, ch. 121, § 1; T.C.A. (orig. ed.), § 20-602.

Cross-References. Abolition of common-law tort action of alienation of affections, § 36-3-701.

Revivor of actions pending against a person at the time of death, § 30-2-320, Tenn. R. Civ. P. 25.

Substitution of parties, Tenn. R. Civ. P. 25.

Survival of action for injury to real property, § 29-36-104.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 319.

Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 688, 691, 706, 707.

Tennessee Jurisprudence, 1 Tenn. Juris., Abatement, Survival and Revival, §§ 26-28; 17 Tenn. Juris., Libel and Slander, § 32; 18 Tenn. Juris., Mandamus, § 10.

Law Reviews.

Issues Raised by “Jordan” (John A. Day), 35 No.12 Tenn. B.J. 17 (1999).

Stealing Love in Tennessee: The Thief Goes Free, 56 Tenn. L. Rev. 629 (1989).

Torts — Jordan v. Baptist Three Rivers Hospital: The Tennessee Supreme Court Allows Recovery of Parental Consortium in Wrongful Death Actions, 30 U. Mem. L. Rev. 439 (2000).

Cited: Commercial Truck & Trailer Sales, Inc. v. McCampbell, 580 S.W.2d 765, 1979 Tenn. LEXIS 427 (Tenn. 1979); Leffew v. Mayes, 685 S.W.2d 288, 1984 Tenn. App. LEXIS 3055 (Tenn. Ct. App. 1984); Brooks v. Memphis & Shelby County Hospital Authority, 717 S.W.2d 292, 1986 Tenn. App. LEXIS 3067 (Tenn. Ct. App. 1986); Can Do Pension & Profit Sharing Plan & Successor Plans v. Manier, Herod, Hollabaugh & Smith, 922 S.W.2d 865, 1996 Tenn. LEXIS 304 (Tenn. 1996); Claybrook v. Birchwell, 199 F.3d 350,2000 FED App. 14P, 2000 U.S. App. LEXIS 297 (6th Cir. Tenn. 2000); McCormick v. Ill. Cent. R.R. Co., — S.W.3d —, 2009 Tenn. App. LEXIS 357 (Tenn. Ct. App. May 19, 2009); Timmins v. Lindsey, 310 S.W.3d 834, 2009 Tenn. App. LEXIS 731 (Tenn. Ct. App. Oct. 28, 2009).

NOTES TO DECISIONS

1. Revival of Actions in General.

Suits commenced, with a single exception (that of actions for wrongs affecting the plaintiff's character), shall not abate or discontinue upon the death of either party, but may be revived. Churchwell v. Bank of East Tennessee, 48 Tenn. 780, 1870 Tenn. LEXIS 147 (1870).

The tendency has been, by decision and by statute, to limit and circumscribe the effect of the rule that actions abate by the death of the parties thereto; and there is no case to be found within the last two centuries in which the scope of this rule has been extended or broadened. Harris v. Nashville Trust Co., 128 Tenn. 573, 162 S.W. 584, 1913 Tenn. LEXIS 72, 49 L.R.A. (n.s.) 897 (1914).

Whether there is survival depends upon the substance, not form, of the action. Bowman v. Hart, 161 Tenn. 402, 33 S.W.2d 58, 1930 Tenn. LEXIS 19 (1930).

In suit by conservator to have certain deeds of a decedent declared invalid, where plaintiff died prior to submission of case to jury it was error for the trial court to proceed with the submission of the case to the jury without revivor in the name of the proper party complainants and in withholding from the jury the information of the plaintiff's death, however such error was not reversible where no assignment of error was made to this action of the court. Holmes v. Dorris, 55 Tenn. App. 279, 399 S.W.2d 512, 1964 Tenn. App. LEXIS 168 (Tenn. Ct. App. 1964).

Where, in action brought by conservator, court erred in submitting case to jury after receiving word that complainant had died, the action of the chancellor in reviving the cause in the name of the proper parties complainant after the verdict of the jury was received but before a decree was entered cured all defects resulting from the failure of the chancellor to require the cause to be revived before the submission of the case to the jury. Holmes v. Dorris, 55 Tenn. App. 279, 399 S.W.2d 512, 1964 Tenn. App. LEXIS 168 (Tenn. Ct. App. 1964).

Where, in action by conservator of plaintiff to have deeds executed by a deceased declared invalid the plaintiff died prior to the submission of the case to the jury, defendant was not entitled to a mistrial, but only to have the proceedings suspended until the cause was revived in the name of the proper parties. Holmes v. Dorris, 55 Tenn. App. 279, 399 S.W.2d 512, 1964 Tenn. App. LEXIS 168 (Tenn. Ct. App. 1964).

The rule of abatement at death has never been favored in the courts of this state. Butler v. Trentham, 224 Tenn. 528, 458 S.W.2d 13, 1970 Tenn. LEXIS 353, 1970 Tenn. LEXIS 354 (1970).

The right of recovery in a wrongful death case is strictly a creation of statute. Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999).

2. Commencement of Suit Required for Revival.

The statute in this section applies only where the suit for a wrong was commenced against the wrongdoer in his lifetime, and it warrants a revivor of such suit against his personal representative, except suits for wrongs affecting the character of the plaintiff. This statute does not authorize the institution of such suits against the personal representative of the wrongdoer. Winters v. McGhee, 35 Tenn. 128, 1855 Tenn. LEXIS 28 (1855); Cherry v. Hardin, 51 Tenn. 199, 1871 Tenn. LEXIS 148 (1871); Baker v. Dansbee, 54 Tenn. 229, 1872 Tenn. LEXIS 40 (1872); Johnson v. Maury County Trust Co., 15 Tenn. App. 326, — S.W.2d —, 1932 Tenn. App. LEXIS 100 (Tenn. Ct. App. 1932).

The fact that an action brought may be revived under this section does not make the cause of action survive. Dillingham v. Tri-State Ins. Co., 214 Tenn. 592, 381 S.W.2d 914, 1964 Tenn. LEXIS 510 (1964).

3. Cause of Action.

Whether a particular action survives or abates depends entirely upon whether the cause of action survives or continues. Posey v. Posey, 113 Tenn. 588, 83 S.W. 1, 1904 Tenn. LEXIS 52 (1904).

This section creates no new and independent action but merely preserves the cause of action that belonged to the person injured. Benton v. Knoxville News-Sentinel Co., 174 Tenn. 658, 130 S.W.2d 105, 1938 Tenn. LEXIS 135 (1939).

T.C.A. § 20-5-102 did not operate to save lawsuit from abatement at the death of the nursing home resident because the partition action was not based on a wrongful act; conservator's complaint for partition against the daughter acknowledged the existence of the joint tenancy, but did not make any reference to the way in which it was created. Rusnak v. Phebus, — S.W.3d —, 2008 Tenn. App. LEXIS 328 (Tenn. Ct. App. May 29, 2008).

4. Damages.

The damages recoverable under this section are such as the deceased could have recovered if he had lived. Benton v. Knoxville News-Sentinel Co., 174 Tenn. 658, 130 S.W.2d 105, 1938 Tenn. LEXIS 135 (1939).

5. Contribution Among Joint Tortfeasors.

A suit for contribution whether in equity or at law is not ex delicto in nature but is a separate and distinct action and survives the death of the holder of that right. Butler v. Trentham, 224 Tenn. 528, 458 S.W.2d 13, 1970 Tenn. LEXIS 353, 1970 Tenn. LEXIS 354 (1970).

Suit by administrator of estate of deceased commissioner of utility district against other commissioners for contribution on judgment recovered against deceased commissioner during his lifetime for alleged mishandling of funds was not ex delicto in nature but was a separate and distinct action which survived death of commissioner. Butler v. Trentham, 224 Tenn. 528, 458 S.W.2d 13, 1970 Tenn. LEXIS 353, 1970 Tenn. LEXIS 354 (1970).

6. Personal Injury Actions.

An action commenced for personal injuries may be revived in the name of the personal representative, and prosecuted for the benefit of his estate, after the plaintiff's death, even where he died from some cause other than the injury sued for, and without widow or next of kin. Daniel v. East Tennessee Coal Co., 105 Tenn. 470, 58 S.W. 859, 1900 Tenn. LEXIS 94 (1900).

Where the plaintiff in personal injury case died before judgment on appeal, and there was nothing done to revive it, and the plaintiff did not die from injuries sustained which were the basis for the suit, a judgment for abatement was correctly entered. McDonald v. Nashville, 114 Tenn. 540, 86 S.W. 317, 1904 Tenn. LEXIS 109 (1904).

Where an injured party brings suit for personal injuries and thereafter dies from other supervening causes, such suit for personal injuries may be revived in the name of the plaintiff's personal representative but not in the name of the next of kin. Gipson v. Memphis S. R. Co., 51 Tenn. App. 31, 364 S.W.2d 110, 1962 Tenn. App. LEXIS 93 (Tenn. Ct. App. 1962).

Trial court erred in not allowing both of the estate representatives' claims for personal injuries and wrongful death to go to the jury, with the understanding that the representatives were not to have double recovery for the same damages, and to rule otherwise would have given no force and effect to the plain language of Tenn. Civ. Proc. Rule 8 and T.C.A. § 20-5-102; under T.C.A. § 20-5-113, the representatives were not able to recover pain and suffering damages under their wrongful death claim under T.C.A. § 20-5-106 and also under their personal injury claim, but this did not require that the personal injury claim be dismissed because the jury could have found that the nursing home injured the decedent but did not ultimately cause the decedent's death. Rolen v. Wood Presbyterian Home, Inc., 174 S.W.3d 158, 2005 Tenn. App. LEXIS 278 (Tenn. Ct. App. 2005), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 974 (Tenn. Oct. 24, 2005).

7. Negligency by Laboratory.

An action on behalf of a deceased putative father against a laboratory based on negligence in the conduct of a paternity test could not be brought by the father's child as next friend, but could only be maintained by the surviving spouse of the deceased. Miller v. Niblack, 942 S.W.2d 533, 1996 Tenn. App. LEXIS 645 (Tenn. Ct. App. 1996).

8. Malpractice.

An action for malpractice did not abate upon the plaintiff's death from a cause other than the wrongful act of the defendant. Burnett v. Layman, 130 Tenn. 423, 171 S.W. 76, 1914 Tenn. LEXIS 41 (1914).

When a trial court held that the decedent's claims passed automatically on the decedent's death from unrelated causes after the commencement of a medical malpractice action to the surviving spouse without need to substitute parties, remand was necessary because the court erroneously ruled—as the co-executors of the estate were the appropriate parties to revive the action—and was to determine whether the response to the health care providers'  motion to dismiss was to be construed as a motion for enlargement of time to substitute parties. Joshlin v. Halford, — S.W.3d —, 2019 Tenn. App. LEXIS 537 (Tenn. Ct. App. Nov. 6, 2019).

When a trial court held that the decedent's claims passed automatically on the decedent's death from unrelated causes after the commencement of a medical malpractice action to the surviving spouse without need to substitute parties, remand was necessary because the court erroneously ruled—as the co-executors of the estate were the appropriate parties to revive the action—and was to determine whether the response to the health care providers'  motion to dismiss was to be construed as a motion for enlargement of time to substitute parties. Joshlin v. Halford, — S.W.3d —, 2019 Tenn. App. LEXIS 537 (Tenn. Ct. App. Nov. 6, 2019).

9. Survival of Foreign Actions.

Widow of deceased killed in automobile accident in Florida was entitled to sue administrator of deceased driver in Tennessee where law in Florida provided that action survived in favor of widow even though law in Tennessee provided that action did not survive unless filed prior to death of tort-feasor. Parsons v. American Trust & Banking Co., 168 Tenn. 49, 73 S.W.2d 698, 1934 Tenn. LEXIS 19 (1934).

10. Survival in Federal Court.

The survivability of an action for misrepresentations being beyond the power of federal legislation, the federal courts will adopt the local laws in regard to the reviving suits abated by the death of the parties. Warren v. Furstenheim, 35 F. 691, 1888 U.S. App. LEXIS 2039, 1 L.R.A. 40 (C.C.D. Tenn. 1888).

11. Fraud.

According to the general rule the legal cause of action for fraud does not survive the death of the defrauded person or the wrongdoer. Carne v. Maryland Casualty Co., 208 Tenn. 403, 346 S.W.2d 259, 1961 Tenn. LEXIS 299 (1961).

12. Pleadings.

Where complainant died after final decree in his favor and after the adjournment of the court, the defendant was entitled to a writ of error and scire facias to revive the cause of action against the heirs of the deceased. Tipton v. Tipton, 118 Tenn. 691, 104 S.W. 237, 1907 Tenn. LEXIS 71 (1907).

Plea of abatement by widow was properly sustained where allegations failed to show that widow was the executrix, administratrix or executor de son tort of deceased husband. Brooks v. Garner, 194 Tenn. 624, 254 S.W.2d 736, 1953 Tenn. LEXIS 280 (1953).

13. “Wrongs Affecting Character of Plaintiff.”

“Wrongs affecting the character of the plaintiff” include, malicious prosecution, libel, false imprisonment, breach of promise to marry, alienation of wife's affections, and seduction. Bolin v. Stewart, 66 Tenn. 298, 1874 Tenn. LEXIS 129 (1874) (malicious prosecution); Akers v. Akers, 84 Tenn. 7, 1885 Tenn. LEXIS 105, 57 Am. Rep. 207 (1885) (libel); Weeks v. Mays, 87 Tenn. 442, 10 S.W. 771, 1888 Tenn. LEXIS 74, 3 L.R.A. 212 (1889) (breach of promise); Hullett v. Baker, 101 Tenn. 689, 49 S.W. 757, 1898 Tenn. LEXIS 124 (1899) (breach of promise); Justice v. Clinard, 142 Tenn. 208, 217 S.W. 663, 1919 Tenn. LEXIS 49 (1919) (alienation); Witt v. Krichbaum, 5 Tenn. App. 48, 1927 Tenn. App. LEXIS 33 (1927) (false imprisonment); Bowman v. Hart, 161 Tenn. 402, 33 S.W.2d 58, 1930 Tenn. LEXIS 19 (1930) (seduction); Benton v. Knoxville News-Sentinel Co., 174 Tenn. 658, 130 S.W.2d 105, 1938 Tenn. LEXIS 135 (1939) (libel).

Where the plaintiff recovers a judgment against the defendant in an action for “wrongs affecting the character of the plaintiff,” from which judgment the defendant appeals, in the nature of a writ of error, and, pending the appeal, either dies, a revivor of the appeal may be had in favor of or against the personal representative of the deceased party, as the case may be. This is allowed on the principle that the recovery of a judgment merges the tort, which was the foundation of the action, into the judgment, and it thus becomes a debt, and that the appeal in the nature of a writ of error merely suspends, and does not vacate or annul, the judgment. Akers v. Akers, 84 Tenn. 7, 1885 Tenn. LEXIS 105, 57 Am. Rep. 207 (1885); Hullett v. Baker, 101 Tenn. 689, 49 S.W. 757, 1898 Tenn. LEXIS 124 (1899); Pickens v. Scarbrough, 164 Tenn. 75, 46 S.W.2d 58, 1931 Tenn. LEXIS 14 (1932). See Cherry v. Hardin, 51 Tenn. 199, 1871 Tenn. LEXIS 148 (1871).

14. —Alienation of Affections.

Action for alienation of affections does not survive death of defendant. Brummett v. Evans, 148 F. Supp. 309, 1957 U.S. Dist. LEXIS 4020 (D. Tenn. 1957).

15. —Breach of Promise and Seduction.

An action for the breach of a marriage contract is one for a wrong “affecting the character of the plaintiff,” and abates upon the defendant's death, and cannot be revived against his personal representative or heirs. Weeks v. Mays, 87 Tenn. 442, 10 S.W. 771, 1888 Tenn. LEXIS 74, 3 L.R.A. 212 (1889); Hullett v. Baker, 101 Tenn. 689, 49 S.W. 757, 1898 Tenn. LEXIS 124 (1899).

The defendant's death, pending his appeal from a judgment against him in an action for breach of promise to marry, operates to abate the action where the judgment is subsequently reversed, and the cause remanded. Upon reversal of the judgment, the action again becomes one for tort and is abatable. Hullett v. Baker, 101 Tenn. 689, 49 S.W. 757, 1898 Tenn. LEXIS 124 (1899).

Action by woman against estate for seduction and breach of promise of marriage by deceased survived against wrongdoer by virtue of provisions of § 20-5-103, since § 20-5-103 makes no exceptions or exclusions. Goins v. Coulter, 185 Tenn. 346, 206 S.W.2d 379, 1947 Tenn. LEXIS 338 (1947).

16. —Libel or Slander.

If, in case of revived appeal, the judgment for libel is reversed, the demand is restored to its original character, and the death of the wrongdoer abates the suit as though no judgment had ever been rendered upon the demand. Akers v. Akers, 84 Tenn. 7, 1885 Tenn. LEXIS 105, 57 Am. Rep. 207 (1885).

The exception as to wrongs affecting the character of the plaintiff, made in this section, does not defeat an action based on a libel contained in a will first published after the testator's death, because this section relates only to actions commenced during the lifetime of the deceased party. Harris v. Nashville Trust Co., 128 Tenn. 573, 162 S.W. 584, 1913 Tenn. LEXIS 72, 49 L.R.A. (n.s.) 897 (1914).

A wife has no cause of action because of the libel of her deceased husband, as the proper party to sue as plaintiff in an action for libel is the person directly defamed. Benton v. Knoxville News-Sentinel Co., 174 Tenn. 661, 130 S.W.2d 106, 1938 Tenn. LEXIS 136 (1939).

17. —Malicious Prosecution.

Where judgment is for defendant in suit for malicious prosecution and plaintiff appeals, and pending appeal one of the parties dies there can be no revivor. Bolin v. Stewart, 66 Tenn. 298, 1874 Tenn. LEXIS 129 (1874).

18. —Damages.

Where cause of action for libel abated with the death of the injured party, the consequences that followed such cause of action as elements of damage could not be made the basis of a new cause of action by the widow and next of kin. Benton v. Knoxville News-Sentinel Co., 174 Tenn. 658, 130 S.W.2d 105, 1938 Tenn. LEXIS 135 (1939).

Collateral References. 1 Am. Jur. 2d Abatement, Survival and Revival §§ 27, 48, 51-76, 109.

1 C.J.S. Abatement and Revival §§ 160-186; 25A C.J.S. Death § 16.

Reputation, what actions or causes of action involve injury to, within statute relating to survival of causes of action or abatement of action. 117 A.L.R. 574.

Usury, survival of claim for, against estate of usurer. 78 A.L.R. 451.

Validity of exception for specific kind of tort action in survival statute. 77 A.L.R.3d 1349.

Abatement and revival 71-77.

20-5-103. Causes surviving death of tort-feasor.

  1. In all cases where a person commits a tortious or wrongful act causing injury or death to another, or property damage, and the person committing the wrongful act dies before suit is instituted to recover damages, the death of that person shall not abate any cause of action that the plaintiff would have otherwise had, but the cause of action shall survive and may be prosecuted against the personal representative of the tort-feasor or wrongdoer.
  2. The common law rule abating such actions upon the death of the wrongdoer and before suit is commenced is abrogated.
  3. This section shall not apply to actions for wrongs affecting the character of the plaintiff.

Acts 1935, ch. 104, § 1; mod. C. Supp. 1950, § 8243.1; T.C.A. (orig. ed.), § 20-603.

Cross-References. Abolition of common-law tort action of alienation of affections, § 36-3-701.

Substitution of parties, Tenn. R. Civ. P. 25.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 691, 714, 740.

Tennessee Jurisprudence, 1 Tenn. Juris., Abatement, Survival and Revival, §§ 26, 28.

Law Reviews.

Abatement and Revival — Actions Affecting the Character of the Plaintiff, 20 Tenn. L. Rev. 373.

Torts — Taylor v. Beard: The Tennessee Supreme Court Declines Adoption of a Cause of Action for Loss of Parental Consortium in Personal Injury Cases, 34 U. Mem. L. Rev. 737 (2004).

Cited: In re Estate of Thompson, 203 Tenn. 485, 314 S.W.2d 6, 1958 Tenn. LEXIS 326 (1958); Carpenter v. Johnson, 514 S.W.2d 868, 1974 Tenn. LEXIS 460 (Tenn. 1974); Owens v. State, 710 S.W.2d 518, 1986 Tenn. LEXIS 831 (Tenn. 1986); Estate of Russell v. Snow, 829 S.W.2d 136, 1992 Tenn. LEXIS 234 (Tenn. 1992); Timmins v. Lindsey, 310 S.W.3d 834, 2009 Tenn. App. LEXIS 731 (Tenn. Ct. App. Oct. 28, 2009).

NOTES TO DECISIONS

1. Cause of Action Preserved.

The enactment of this section in no way created any new and independent cause of action; it merely preserved the cause of action that belonged to the person before the one who caused the injury died. Goins v. Coulter, 185 Tenn. 346, 206 S.W.2d 379, 1947 Tenn. LEXIS 338 (1947).

Right of action for damages for seduction and breach of promise of marriage against the heirs and administrator of the alleged seducer who died a few months before the action was begun is saved by this section notwithstanding the provisions of § 20-5-102 providing for abatement of actions already commenced, which affect the character of the plaintiff, upon the death of either party. Goins v. Coulter, 185 Tenn. 346, 206 S.W.2d 379, 1947 Tenn. LEXIS 338 (1947).

Cause of action against insured for alleged intentional burning survived his death. Smith v. Insurance Co. of North America, 30 F.R.D. 540, 1962 U.S. Dist. LEXIS 6023 (M.D. Tenn. 1962).

Although the decedent died before appellants filed their complaint for injuries sustained in the car accident with decedent, the death of the decedent did not foreclose appellants' cause of action. Owens v. Muenzel, — S.W.3d —, 2018 Tenn. App. LEXIS 752 (Tenn. Ct. App. Dec. 21, 2018).

2. Dismissal Proper.

Negligent entrustment suit brought against an estate was properly dismissed, because the procedures in T.C.A. § 20-5-103 were not followed where, after the appointment of an administrator ad litem, a claim was filed against the estate and process was served on a decedent's mother, who was not a personal representative; the complaint named the estate, the body of the complaint did not make reference to a personal representative, and service was not timely or in compliance with Tenn. R. Civ. P. 4. Hembree v. Estate of Styles, — S.W.3d —, 2007 Tenn. App. LEXIS 768 (Tenn. Ct. App. Dec. 17, 2007).

In a personal injury action filed by plaintiff injured party against a deceased driver, a trial court properly denied plaintiff's Tenn. R. Civ. P. 15.03 motion to amend to add the personal representative as a defendant and dismissed the action because plaintiff failed to name the personal representative as a defendant before the expiration of the one-year statute of limitations, as required by T.C.A. § 20-5-103. Vaughn v. Morton, 371 S.W.3d 116, 2012 Tenn. App. LEXIS 201 (Tenn. Ct. App. Mar. 28, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 435 (Tenn. June 19, 2012).

Trial court did not err in refusing to enlarge the time period for substituting an administrator ad litem as the defendant or in dismissing his negligence claims against a deceased husband and his wife because the injured driver failed to have the administrator timely appointed, substituted, and served prior to the expiration of the statute of limitations, and the injured driver failed to follow the steps of the survival statute before the expiration of the statute of limitations. Ferrell v. Ivey, — S.W.3d —, 2013 Tenn. App. LEXIS 782 (Tenn. Ct. App. Nov. 27, 2013).

Failure of a driver and her husband to comply with the survival statute by appropriately commencing their personal injury case until after the expiration of the statute of limitations barred their recovery because no new cause of action arose on the date they discovered the decedent's death that extended the statutory period for filing their claim simply on the ground that they failed to realize the decedent died until that date. Putnam v. Leach, — S.W.3d —, 2018 Tenn. App. LEXIS 22 (Tenn. Ct. App. Jan. 23, 2018).

When a decedent died the survival statute paused the statute of limitations, and because no personal representative was appointed during the six month period following his death, the statute of limitations recommenced; because the statute of limitations period ran before a driver and her husband filed their action against the administrator ad litem, the statute of limitations barred their personal injury claims, and the administrator's motion to dismiss was properly granted. Putnam v. Leach, — S.W.3d —, 2018 Tenn. App. LEXIS 22 (Tenn. Ct. App. Jan. 23, 2018).

3. Common Law Rule Changed.

This section providing for survival of action against deceased tort-feasor changes the common law, hence procedure designated must be strictly followed. Brooks v. Garner, 194 Tenn. 624, 254 S.W.2d 736, 1953 Tenn. LEXIS 280 (1953).

4. Parties.

Suit under this section can only be instituted against personal representative of deceased wrongdoer. Brooks v. Garner, 194 Tenn. 624, 254 S.W.2d 736, 1953 Tenn. LEXIS 280 (1953); Goss v. Hutchins, 751 S.W.2d 821, 1988 Tenn. LEXIS 67 (Tenn. 1988).

Suit cannot be maintained against executor de son tort of deceased. Brooks v. Garner, 194 Tenn. 624, 254 S.W.2d 736, 1953 Tenn. LEXIS 280 (1953).

Circuit court is not authorized to appoint an administrator ad litem for deceased wrongdoer, since appointment can only be made by probate or chancery court. Brooks v. Garner, 194 Tenn. 624, 254 S.W.2d 736, 1953 Tenn. LEXIS 280 (1953).

By the time plaintiffs served process upon a deceased tortfeasor's personal representative, more than a year had passed since the expiration of the statute of limitations. Having failed to follow the steps of the survival statute, T.C.A. § 20-5-103, before the expiration of the statute of limitations, plaintiffs'  action against the estate was time-barred. Bryant v. Estate of Klein, — S.W.3d —, 2009 Tenn. App. LEXIS 154 (Tenn. Ct. App. Apr. 20, 2009).

By the time plaintiffs served process upon a deceased tortfeasor's personal representative, more than a year had passed since the expiration of the statute of limitations. Having failed to follow the steps of the survival statute, T.C.A. § 20-5-103, before the expiration of the statute of limitations, plaintiffs'  action against the estate was time-barred. Bryant v. Estate of Klein, — S.W.3d —, 2009 Tenn. App. LEXIS 154 (Tenn. Ct. App. Apr. 20, 2009).

Trial court did not abuse its discretion in denying victims'  petition to intervene in an estate's wrongful death action against a city because filing of an intervening complaint was not a substitute for a properly filed tort action directly against the estate under the Survival Statute; because the victims did not follow the statute's procedure, they had no claim against the decedent's estate for the damages he allegedly caused prior to his death. White v. Johnson, 522 S.W.3d 417, 2016 Tenn. App. LEXIS 474 (Tenn. Ct. App. July 7, 2016).

5. Alienation of Affections.

Action for alienation of affections does not survive death of defendant. Brummett v. Evans, 148 F. Supp. 309, 1957 U.S. Dist. LEXIS 4020 (D. Tenn. 1957).

6. Service Upon Personal Representative.

Trial court did not err in granting an uninsured motorist carrier summary judgment because an insured's claim against it was barred; because a driver, the alleged tortfeasor, died prior to the filing of the complaint, in order to comply with the Survival Statute, T.C.A. § 20-5-103(a), the insured was required to serve the driver's personal representative with process prior to the expiration of the statute of limitations, T.C.A. § 28-3-104(a)(1), but the insured failed to submit any evidence showing that an estate was ever established for the grinder. Liput v. Grinder, 405 S.W.3d 664, 2013 Tenn. App. LEXIS 136 (Tenn. Ct. App. Feb. 27, 2013), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 615 (Tenn. July 11, 2013).

Decisions Under Prior Law

1. Death of Wrongdoer.

A right of action ex delicto is extinguished by the death of the wrongdoer where suit has not been commenced prior to his death. Brown v. Stephens, 165 Tenn. 85, 52 S.W.2d 146, 1931 Tenn. LEXIS 174 (1932), superseded by statute as stated in, Goss v. Hutchins, 751 S.W.2d 821, 1988 Tenn. LEXIS 67 (Tenn. 1988) citing cases.

2. Conversion of Property.

An action in tort for the conversion of property does not lie, and cannot be commenced, against the personal representative of the wrongdoer, though the tort may be waived, and an action ex contractu maintained. Cherry v. Hardin, 51 Tenn. 199, 1871 Tenn. LEXIS 148 (1871).

Collateral References. 1 Am. Jur. 2d Abatement, Survival, and Revival §§ 61, 65, 66, 69-72.

1 C.J.S. Abatement and Revival §§ 137, 138; 25A C.J.S. Death §§ 16, 42.

Claim for negligently damaging or destroying personal property as surviving tort-feasor's death. 40 A.L.R.2d 533.

Contract, survivability of cause of action in tort against third person for procuring breach of. 93 A.L.R. 1133.

Dividends wrongfully paid, survival of directors' liability for. 55 A.L.R. 129, 76 A.L.R. 885, 109 A.L.R. 1381.

Husband and wife, survival against community of right of action for tort of deceased member of community. 67 A.L.R. 1159.

Medical malpractice action as abating upon death of either party. 50 A.L.R.2d 1445.

Privacy, survival of action for invasion of right of. 138 A.L.R. 22, 168 A.L.R. 466, 11 A.L.R.3d 1296, 57 A.L.R.3d 16.

Validity of exception for specific kind of tort action in survival statute. 77 A.L.R.3d 1349.

Abatement and revival 62-64.

20-5-104. Revival by or against heirs.

If no person will administer on the estate of a deceased plaintiff or defendant, the suit may be revived by or against the heirs of the decedent.

Code 1858, § 2849 (deriv. Acts 1809 (Sept.), ch. 121, § 3); Shan., § 4571; Code 1932, § 8696; T.C.A. (orig. ed.), § 20-605.

Cross-References. Descent and distribution, §§ 31-1-101, 31-2-101.

Revival of judgment against heirs, § 25-4-104.

Substitution of parties, Tenn. R. Civ. P. 25.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 70.

Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 709, 714, 857.

Tennessee Jurisprudence, 1 Tenn. Juris., Abatement, Survival and Revival, §§ 26-33.

Cited: Owens v. State, 710 S.W.2d 518, 1986 Tenn. LEXIS 831 (Tenn. 1986); Timmins v. Lindsey, 310 S.W.3d 834, 2009 Tenn. App. LEXIS 731 (Tenn. Ct. App. Oct. 28, 2009).

NOTES TO DECISIONS

1. Legislative Purpose.

The sole object of this section is to prevent the abatement or discontinuance of a suit on account of the death of either party, where no person will administer on the estate of a deceased plaintiff or defendant. Brown v. L. Rocco & Co., 56 Tenn. 187, 1872 Tenn. LEXIS 124 (1872).

There is no exception in the statute as to the character of suits that may be revived by or against the heirs of a deceased plaintiff or defendant, and the courts can make none. Edgington v. Jamison, 70 Tenn. 569, 1879 Tenn. LEXIS 198 (1879).

2. Compliance with Statutory Requirements.

The heirs can be proceeded against alone by a revivor of a suit pending against their ancestor only by strict compliance with the statute. There must be a suggestion or assumption of record and proof or admission that no one can be procured to administer, and motion for scire facias to revive against the heirs on this ground. Preston v. Golde, 80 Tenn. 267, 1883 Tenn. LEXIS 164 (1883); McDonald v. Nashville, 114 Tenn. 540, 86 S.W. 317, 1904 Tenn. LEXIS 109 (1904).

3. Showing That No One Will Administer.

A revivor against an heir, even a minor, is not subject to be declared void in a collateral attack, because it fails to show that no one would administer. At most, this is only an error that might be corrected upon a direct review. Edgington v. Jamison, 70 Tenn. 569, 1879 Tenn. LEXIS 198 (1879); Preston v. Golde, 80 Tenn. 267, 1883 Tenn. LEXIS 164 (1883).

Where the suit is by the vendee for the rescission of a contract for the sale and purchase of land, and for the recovery of the purchase money paid and the heirs answer without objection for want of revivor against the personal representative of the deceased defendant vendor, the heirs do not thereby waive the want of suggestion that no one could be procured to administer. Preston v. Golde, 80 Tenn. 267, 1883 Tenn. LEXIS 164 (1883).

The suggestion and assumption of record that no one could be procured to administer, as prerequisite to the issuance of a scire facias to revive against the heirs in order to obtain a judgment against them on account of lands descended or personalty received from their ancestor, cannot be waived by a minor heir, nor by his guardian ad litem. Preston v. Golde, 80 Tenn. 267, 1883 Tenn. LEXIS 164 (1883).

A suit for damages for personal injuries, brought by the injured party, cannot be revived in the name of his heirs at law or next of kin, unless it is shown that no person will administer on the estate of deceased plaintiff. McDonald v. Nashville, 114 Tenn. 540, 86 S.W. 317, 1904 Tenn. LEXIS 109 (1904).

4. Teste of Execution Before Death.

Plaintiff's death after teste of execution renders revivor unnecessary, though he died before its actual issuance. Neil v. Gaut, 41 Tenn. 396, 1860 Tenn. LEXIS 81 (1860); Harvey v. Berry, Demobille & Co., 60 Tenn. 252, 1872 Tenn. LEXIS 483 (1873); Puckett v. Richardson, 74 Tenn. 49, 1880 Tenn. LEXIS 210 (1880).

5. Revivor Against Executor De Son Tort.

A suit pending against the deceased may be revived against an executor of his own wrong (executor de son tort), but he may plead, as a defense, fully administered, payment to the creditors or rightful administrator, or any other defense accruing to him after the wrongful taking, or any other defense that he could plead to an original action. Cobb v. Lanier, 5 Tenn. 296, 5 Tenn. 297, 1818 Tenn. LEXIS 9 (1818).

6. Revivor Against Nonresident Heirs.

The statute applies where the deceased party's heirs or devisees, by or against whom the revivor is sought, are nonresidents of the state. Foster v. Burem, 48 Tenn. 783, 1870 Tenn. LEXIS 148 (1870); Campbell v. Hubbard, 79 Tenn. 6, 1883 Tenn. LEXIS 2 (1883).

The nonresident heirs of the deceased appellate in an action of replevin, who was the defendant below, and who died pending the appeal in the supreme court, may revive the suit in their names if no person will administer on the estate in this state, although an administration was granted in the state of the appellant's domicile. Campbell v. Hubbard, 79 Tenn. 6, 1883 Tenn. LEXIS 2 (1883).

7. Revivor Against Minors.

If the heirs or any of them, against whom the suit is revived, are minors, the court shall appoint a guardian ad litem for them. Bandy v. Walker, 40 Tenn. 568, 1859 Tenn. LEXIS 169 (1859).

8. Revivor in Replevin.

The rule applies in replevin suits, and the defendant may have a revivor against the heirs of the plaintiff, and judgment and execution against the lands descended, for the value of goods improperly taken by the ancestor (the deceased plaintiff) in replevin, as well as for ordinary debts; and the heirs of a deceased defendant in replevin may likewise have a revivor in their name against the plaintiff where no one can be procured to administer upon the estate of the deceased defendant. Bandy v. Walker, 40 Tenn. 568, 1859 Tenn. LEXIS 169 (1859); Brown v. L. Rocco & Co., 56 Tenn. 187, 1872 Tenn. LEXIS 124 (1872); Edgington v. Jamison, 70 Tenn. 569, 1879 Tenn. LEXIS 198 (1879); Campbell v. Hubbard, 79 Tenn. 6, 1883 Tenn. LEXIS 2 (1883).

9. Effect of Scire Facias.

Ordering a scire facias, at the same time the suit is revived in favor of the heirs of the deceased plaintiff, will not vitiate the order of revivor. Boyd v. Titzer, 46 Tenn. 568, 1869 Tenn. LEXIS 101 (1869).

A revivor may be made against nonresidents by bill of revivor stating the matters required to be stated in the scire facies, when that remedy is used, and by publication. Publication of a certified copy of such order must be made by the clerk. Foster v. Burem, 48 Tenn. 783, 1870 Tenn. LEXIS 148 (1870).

10. Defenses to Motion to Revive.

Where persons claiming to be the proper representatives of deceased parties present themselves and move to revive, in favor of themselves, a pending cause, even in the supreme court, the opposing litigant may resist the revivor upon any sufficient ground, such as that they are not the heirs or all the heirs; and so, where it is sought to revive a pending suit against the heirs of a deceased party, such heirs may resist the revivor upon any sufficient ground, and the court must, in acting on the motion to revive, pass upon and decide these questions. Upon issue joined on the plea as to heirship, the proof may be made in open court, or by depositions taken upon notice, or before the clerk upon a reference to him for the purpose; and the latter, being the most convenient mode, has been adopted in practice. Mayfield v. Stephenson, 65 Tenn. 397, 1873 Tenn. LEXIS 372 (1873); Berrigan v. Fleming, 70 Tenn. 271, 1879 Tenn. LEXIS 174 (1879); Campbell v. Hubbard, 79 Tenn. 6, 1883 Tenn. LEXIS 2 (1883); Allen v. Shanks, 90 Tenn. 359, 16 S.W. 715, 1891 Tenn. LEXIS 25 (1891).

It is not a good plea to the motion to revive a suit in the name of the heirs of a deceased plaintiff (all nonresidents) that the deceased had made a will in the state of his domicile, which had been probated under the laws of that state. Campbell v. Hubbard, 79 Tenn. 6, 1883 Tenn. LEXIS 2 (1883).

11. Judgment Against Heirs.

After the revivor, the judgment cannot be rendered for or against the heirs personally, but must be in their representative character. The execution on the judgment will issue against them, to be levied of the goods and chattels of the deceased in their possession, subject to execution. If there be no such goods and chattels, then to be levied on the lands and tenements of the deceased descended to the heirs. Brown v. L. Rocco & Co., 56 Tenn. 187, 1872 Tenn. LEXIS 124 (1872); Edgington v. Jamison, 70 Tenn. 569, 1879 Tenn. LEXIS 198 (1879).

12. Omission of Heir in Order.

Where the order awarding the issuance of the writ of scire facias against the administrator and heirs of a deceased defendant names all of them, except one heir, and the writ issued was actually served upon the administrator and all the heirs, naming them, the revivor was held to be valid, although the true given name of the heir whose name was entirely omitted in the court's minute order was not stated in the return, but another given name was stated. McCracken v. Nelson, 83 Tenn. 312, 1885 Tenn. LEXIS 53 (1885).

13. Effect of Subsequent Appointment of Administrator.

After a revivor against the heirs of a decedent, a subsequently appointed administrator cannot come into the suit to set aside or review proceedings had previous to his appointment. Anderson v. McRoberts, 1 Cooper's Tenn. Ch. 279 (1873).

14. Appeal.

Where the plaintiff dies after judgment, but before the end of the term, the defendant may appeal without revivor. Stone v. Ringer, 51 Tenn. 265, 1871 Tenn. LEXIS 159 (1871).

If a party die pending the suit in the appellate court, and no one will administer on his estate, it may be revived by scire facias against his heirs and judgment entered for or against them in their representative capacity. Brown v. L. Rocco & Co., 56 Tenn. 187, 1872 Tenn. LEXIS 124 (1872).

In a chancery case, an appeal, when perfected, vacates the decree of the chancery court, and if a party dies pending the appeal, the suit, not the decree, may be revived in the appellate court. Ransom v. Carlisle, 8 Tenn. App. 448, — S.W.2d —, 1928 Tenn. App. LEXIS 160 (Tenn. Ct. App. 1928).

15. Substitution of Proper Party.

Trial court erred in denying appellants'  motion for enlargement of time to file a motion to substitute the original plaintiff's personal representative as appellants showed excusable neglect sufficient to justify an enlargement of time because there was nothing suggesting that appellants'  failure to timely substitute the proper party was willful or egregious as it appeared that the issue in the current case simply resulted from a misunderstanding regarding who the proper party was to be substituted; and there had been no suggestion that allowing substitution of the original plaintiff's personal representative would prejudice appellee, who had notice from the beginning of the suit regarding the claim against her. Dubis v. Loyd, — S.W.3d —, 2016 Tenn. App. LEXIS 588 (Tenn. Ct. App. Aug. 15, 2016).

When a trial court held that the decedent's claims passed automatically on the decedent's death from unrelated causes after the commencement of a medical malpractice action to the surviving spouse without need to substitute parties, remand was necessary because the court erroneously ruled—as the co-executors of the estate were the appropriate parties to revive the action—and was to determine whether the response to the health care providers'  motion to dismiss was to be construed as a motion for enlargement of time to substitute parties. Joshlin v. Halford, — S.W.3d —, 2019 Tenn. App. LEXIS 537 (Tenn. Ct. App. Nov. 6, 2019).

When a trial court held that the decedent's claims passed automatically on the decedent's death from unrelated causes after the commencement of a medical malpractice action to the surviving spouse without need to substitute parties, remand was necessary because the court erroneously ruled—as the co-executors of the estate were the appropriate parties to revive the action—and was to determine whether the response to the health care providers'  motion to dismiss was to be construed as a motion for enlargement of time to substitute parties. Joshlin v. Halford, — S.W.3d —, 2019 Tenn. App. LEXIS 537 (Tenn. Ct. App. Nov. 6, 2019).

Collateral References. 1 Am. Jur. 2d Abatement, Survival and Revival § 120 et seq.

1 C.J.S. Abatement and Revival § 164; 25A C.J.S. Death, §§ 16, 39-42.

Abatement and revival 72(7).

20-5-105. Revival by or against successor in interest.

If the decedent has parted with the decedent's interest pending the suit, it may be revived by or against the successor in interest instead of the representative or heir.

Code 1858, § 2850 (deriv. Acts 1794, ch. 1, § 64); Shan., § 4572; Code 1932, § 8697; T.C.A. (orig. ed.), § 20-606.

Cross-References. Substitution of parties, Tenn. R. Civ. P. 25.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 319.

Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 709.

Tennessee Jurisprudence, 1 Tenn. Juris., Abatement, Survival and Revival, § 7; 6 Tenn. Juris., Compromise and Settlement, § 5.

Law Reviews.

Issues Raised by “Jordan” (John A. Day), 35 No.12 Tenn. B.J. 17 (1999).

Cited: Timmins v. Lindsey, 310 S.W.3d 834, 2009 Tenn. App. LEXIS 731 (Tenn. Ct. App. Oct. 28, 2009).

NOTES TO DECISIONS

1. Assignee in Bankruptcy.

Suits instituted by or against one subsequently becoming a bankrupt must be prosecuted and defended by the assignee in bankruptcy, and upon the death of the bankrupt, such suit must be revived in the name of such assignee. Moffitt v. Cruise, 47 Tenn. 137, 1869 Tenn. LEXIS 20 (1869).

2. Successor to Public Office.

Where a mandamus suit is prosecuted by a public officer, in his official capacity, for the public benefit and not as an individual, such suit does not abate by his death or the expiration of his term of office, before the determination of the suit, but it inures to the benefit of the office, and shall be continued by the successor or successors. Felts v. Memphis, 39 Tenn. 650, 1859 Tenn. LEXIS 296 (1859); State ex rel. Sharpe v. Puckett, 75 Tenn. 709, 1881 Tenn. LEXIS 175 (1881).

3. Successor of Municipal Corporation.

Revivor against successor of a municipal corporation. Devereaux v. Brownsville, 29 F. 742, 1887 U.S. App. LEXIS 2392 (C.C.D. Tenn. 1887).

Collateral References. 1 C.J.S. Abatement and Revival § 112; 25A C.J.S. Death §§ 16, 39.

Abatement and revival 47.

20-5-106. Injury resulting in death — Succession to cause of action — Beneficiary who is minor or legally incompetent.

  1. The right of action that a person who dies from injuries received from another, or whose death is caused by the wrongful act, omission, or killing by another, would have had against the wrongdoer, in case death had not ensued, shall not abate or be extinguished by the person's death but shall pass to the person's surviving spouse and, in case there is no surviving spouse, to the person's children or next of kin; to the person's personal representative, for the benefit of the person's surviving spouse or next of kin; to the person's natural parents or parent or next of kin if at the time of death decedent was in the custody of the natural parents or parent and had not been legally surrendered or abandoned by them pursuant to any court order removing such person from the custody of such parents or parent; or otherwise to the person's legally adoptive parents or parent, or to the administrator for the use and benefit of the adoptive parents or parent; the funds recovered in either case to be free from the claims of creditors.
  2. In any case involving a beneficiary who is a minor or who is legally incompetent, if the court finds it is in the best interest of the beneficiary, the court in its discretion may authorize all or any portion of the funds recovered for the beneficiary to be added to any trust or trusts established for the benefit of the beneficiary, wherever situated, whether the trust was created by the person whose death was caused by the wrongful action or omission or by any other person. The funds recovered shall be for the benefit of the beneficiary and shall be free from the claims of creditors.
    1. Notwithstanding any other law to the contrary, the right to institute and the right to collect any proceeds from a wrongful death action granted by this section to a surviving spouse shall be waived, if the children or next of kin establish the surviving spouse has abandoned the deceased spouse as described in § 36-4-101(a)(13) or otherwise willfully withdrawn for a period of two (2) years.
    2. If the period of two (2) years has passed since the time of abandonment or willful withdrawal, then there is created a rebuttable presumption that the surviving spouse abandoned the deceased spouse for purposes of this section.
    3. In an action under this section, the child or next of kin shall serve the surviving spouse with process as provided in the rules of civil procedure or by constructive service as may otherwise be provided by law.
  3. As used in this section, “person” includes a fetus that was viable at the time of injury. A fetus shall be considered viable if it had achieved a stage of development wherein it could reasonably be expected to be capable of living outside the uterus.

Code 1858, § 2291 (deriv. Acts 1849-1850, ch. 58, § 1; 1851-1852, ch. 17); Acts 1871, ch. 78, § 1; Shan., § 4025; Code 1932, § 8236; Acts 1945, ch. 58, § 1; mod. C. Supp. 1950, § 8236; Acts 1953, ch. 210, § 1; 1959, ch. 240, § 1; 1975, ch. 284, § 1; 1978, ch. 742, § 1; T.C.A. (orig. ed.), § 20-607; Acts 1991, ch. 196, § 1; 1998, ch. 866, § 1; 2011, ch. 366, § 1.

Amendments. The 2011 amendment added (c) and redesignated former (c) as present (d).

Effective Dates. Acts 2011, ch. 366, § 4. May 30, 2011.

Cross-References. Substitution of parties, Tenn. R. Civ. P. 25.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 611, 637.

Tennessee Forms (Robinson, Ramsey and Harwell), No. 1-8-6.

Tennessee Jurisprudence, 1 Tenn. Juris., Abatement, Survival and Revival, § 9; 2 Tenn. Juris., Appeal and Error, §§ 50, 225; 4 Tenn. Juris., Automobiles, § 36; 6 Tenn. Juris., Compromise and Settlement, § 5; 6 Tenn. Juris., Constitutional Law, § 93; 25 Tenn. Juris., Witnesses, § 10.

Tennessee Law of Evidence (2nd ed., Cohen, Paine and Sheppeard), § 803(1.2).7.

Law Reviews.

Issues Raised by “Jordan” (John A. Day), 35 No.12 Tenn. B.J. 17 (1999).

Loss of filial consortium (John A. Day), 37 No. 5 Tenn. B.J. 26 (2001).

Some Order Out of Chaos in Wrongful Death Law (T. A. Smedley), 37 Vand. L. Rev. 273 (1984).

The Tennessee Hospital Lien Law — A Potential Pitfall for the Unwary (E. Patrick Hull), 35 No. 1 Tenn. B.J. 12 (1999).

Attorney General Opinions. Liability for infants born with narcotic drug dependency.  OAG 13-01 (revised),  2013 Tenn. AG LEXIS 12 (2/1/13).

Cited: Byrne v. Kansas City, Ft. S. & M. R. Co., 55 F. 44, 1893 U.S. App. LEXIS 2527 (C.C.D. Tenn. 1893); Burnett v. Layman, 133 Tenn. 323, 181 S.W. 157, 1915 Tenn. LEXIS 95 (1915); Brown v. Ellison, 12 Tenn. App. 27, — S.W. —, 1926 Tenn. App. LEXIS 209 (Tenn. Ct. App. 1926); Landrum v. Callaway, 12 Tenn. App. 150, — S.W.2d —, 1930 Tenn. App. LEXIS 48 (Tenn. Ct. App. 1930); Rye v. Dupont Rayon Co., 163 Tenn. 95, 40 S.W.2d 1041, 1931 Tenn. LEXIS 92 (1931); West v. Cincinnati, N. O. & T. P. R. Co., 108 F. Supp. 276, 1952 U.S. Dist. LEXIS 2250 (D. Tenn. 1952); Troxel v. Jones, 45 Tenn. App. 264, 322 S.W.2d 251, 1958 Tenn. App. LEXIS 125 (Tenn. Ct. App. 1958); Morristown v. Inman, 47 Tenn. App. 685, 342 S.W.2d 71, 1960 Tenn. App. LEXIS 102 (Tenn. Ct. App. 1960); Kington v. United States, 265 F. Supp. 699, 1967 U.S. Dist. LEXIS 8982 (E.D. Tenn. 1967); Rives v. International Oil Burner Co., 298 F. Supp. 1146, 1969 U.S. Dist. LEXIS 9034 (E.D. Tenn. 1969); Chess v. Nunley, 319 F. Supp. 1288, 1970 U.S. Dist. LEXIS 9162 (E.D. Tenn. 1970); McDaniel v. Baptist Memorial Hospital, 352 F. Supp. 690, 1971 U.S. Dist. LEXIS 10757 (W.D. Tenn. 1971); Woods v. Palmer, 496 S.W.2d 474, 1973 Tenn. LEXIS 476 (Tenn. 1973); Cummings v. Cowan, 390 F. Supp. 1251, 1975 U.S. Dist. LEXIS 13512 (N.D. Miss. 1975); O'Neal v. Southern R. Co., 403 F. Supp. 1115, 1975 U.S. Dist. LEXIS 12356 (E.D. Tenn. 1975); Cline v. Richards, 455 F. Supp. 42, 1977 U.S. Dist. LEXIS 14404 (E.D. Tenn. 1977); Caldwell v. Metcalfe, 458 F. Supp. 847, 1977 U.S. Dist. LEXIS 12616 (E.D. Tenn. 1977); Brooks v. Memphis & Shelby County Hospital Authority, 717 S.W.2d 292, 1986 Tenn. App. LEXIS 3067 (Tenn. Ct. App. 1986); Hathaway v. Middle Tennessee Anesthesiology, P.C., 724 S.W.2d 355, 1986 Tenn. App. LEXIS 3408 (Tenn. Ct. App. 1986); Vaughn v. J.C. Penney Co., 822 F.2d 605, 1987 U.S. App. LEXIS 7965 (6th Cir. Ohio 1987); Kirksey v. Overton Pub, Inc., 739 S.W.2d 230, 1987 Tenn. App. LEXIS 2792 (Tenn. Ct. App. 1987); Sharpe v. Lewisburg, 677 F. Supp. 1362, 1988 U.S. Dist. LEXIS 905 (M.D. Tenn. 1988); Davis v. Davis, 842 S.W.2d 588, 1992 Tenn. LEXIS 400 (Tenn. 1992); Spence v. Miles Lab., 37 F.3d 1185, 1994 FED App. 352P, 1994 U.S. App. LEXIS 29071 (6th Cir. 1994); Miller v. Niblack, 942 S.W.2d 533, 1996 Tenn. App. LEXIS 645 (Tenn. Ct. App. 1996); Alexander v. Beale St. Blues Co., 108 F. Supp. 2d 934, 1999 U.S. Dist. LEXIS 22251 (W.D. Tenn. 1999); Claybrook v. Birchwell, 199 F.3d 350,2000 FED App. 14P, 2000 U.S. App. LEXIS 297 (6th Cir. Tenn. 2000); Planned Parenthood of Middle Tenn. v. Sundquist, 38 S.W.3d 1, 2000 Tenn. LEXIS 515 (Tenn. 2000); Foster v. St. Joseph Hosp., 158 S.W.3d 418, 2004 Tenn. App. LEXIS 491 (Tenn. Ct. App. 2004); Miller v. Dacus, 231 S.W.3d 903, 2007 Tenn. LEXIS 648 (Tenn. Aug. 17, 2007); Flax v. DaimlerChrysler Corp., 272 S.W.3d 521, 2008 Tenn. LEXIS 505 (Tenn. July 24, 2008); Gordon v. Draughn, — S.W.3d —, 2009 Tenn. App. LEXIS 367 (Tenn. Ct. App. June 16, 2009); In re Benjamin M., 310 S.W.3d 844, 2009 Tenn. App. LEXIS 737 (Tenn. Ct. App. Oct. 30, 2009); Taylor v. Lakeside Behavioral Health Sys., — S.W.3d —, 2010 Tenn. App. LEXIS 198 (Tenn. Ct. App. Mar. 15, 2010); Atkinson v. State, 337 S.W.3d 199, 2010 Tenn. App. LEXIS 440 (Tenn. Ct. App. July 9, 2010); Givens v. Josovitz, 343 S.W.3d 76, 2010 Tenn. App. LEXIS 705 (Tenn. Ct. App. Nov. 9, 2010); Zakour v. Ut Med. Group, Inc., — S.W.3d —, 2011 Tenn. App. LEXIS 261 (Tenn. Ct. App. May 19, 2011).

NOTES TO DECISIONS

1. In General.

All of the wrongful death statutes must be construed with reference to one another. Foster v. Jeffers, 813 S.W.2d 449, 1991 Tenn. App. LEXIS 8 (Tenn. Ct. App. 1991), appeal denied, 1991 Tenn. LEXIS 113 (Tenn. Mar. 18, 1991), appeal denied, 1991 Tenn. LEXIS 183 (Tenn. May 6, 1991).

The right of recovery in a wrongful death case is strictly a creation of statute. Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999).

Trial court erred in not allowing both of the estate representatives' claims for personal injuries and wrongful death to go to the jury, with the understanding that the representatives were not to have double recovery for the same damages, and to rule otherwise would have given no force and effect to the plain language of Tenn. Civ. Proc. Rule 8 and T.C.A. § 20-5-102; under T.C.A. § 20-5-113, the representatives were not able to recover pain and suffering damages under their wrongful death claim under T.C.A. § 20-5-106 and also under their personal injury claim, but this did not require that the personal injury claim be dismissed because the jury could have found that the nursing home injured the decedent but did not ultimately cause the decedent's death. Rolen v. Wood Presbyterian Home, Inc., 174 S.W.3d 158, 2005 Tenn. App. LEXIS 278 (Tenn. Ct. App. 2005), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 974 (Tenn. Oct. 24, 2005).

In order to give meaning to T.C.A. § 20-5-106(c)(1) and (c)(2), the Court of Appeals must interpret § 20-5-106(c)(1) in accordance with the last antecedent rule, i.e., the two-year period applies only to willful withdrawal. Baugh v. UPS, — S.W.3d —, 2015 Tenn. App. LEXIS 186 (Tenn. Ct. App. Mar. 31, 2015), review denied and ordered not published, — S.W.3d —, 2015 Tenn. LEXIS 656 (Tenn. Aug. 12, 2015).

2. History of Act.

This statute is largely a counterpart of the first and second sections of what is familiarly known as Lord Campbell's Act, passed by the British Parliament in the year 1846 (Stat. 9 and 10 Vic., ch. 93, §§ 1, 2), and is very similar to statutes subsequently enacted by many of the American states. Railway Co. v. Lilly, 90 Tenn. 563, 18 S.W. 243, 1891 Tenn. LEXIS 43 (1891).

This statute does not copy the English act, but gives larger damages in that it gives damages for the injuries suffered by the deceased, in addition to the pecuniary loss of the persons entitled to the recovery, which latter alone is recoverable under the English act. Elliott v. Felton, 119 F. 270, 1902 U.S. App. LEXIS 4665 (6th Cir. Tenn. 1902).

This section is declaratory of what is known as the “Lord Campbell's Act” and is in no sense a part of the common law. Hogan v. McDaniel, 204 Tenn. 235, 319 S.W.2d 221, 1958 Tenn. LEXIS 263 (1958).

This section is in the nature of the statutes of descent and distribution. Dilworth v. Tisdale Transfer & Storage Co., 209 Tenn. 449, 354 S.W.2d 261, 1962 Tenn. LEXIS 376 (1962).

3. Scope of Act.

The question of the liability of a railroad company for the negligent acts of a conductor of one of its freight trains, resulting in the injury and death of a brakeman of the same train, is a question of general law, in no way involved in the interpretation of this section. Elliott v. Felton, 119 F. 270, 1902 U.S. App. LEXIS 4665 (6th Cir. Tenn. 1902).

This section relates alone to the manner of bringing suit, and not to the disposition of recovery. Throgmorton v. Oliver, 144 Tenn. 282, 230 S.W. 967, 1921 Tenn. LEXIS 37 (1921); Walkup v. Covington, 18 Tenn. App. 117, 73 S.W.2d 718, 1933 Tenn. App. LEXIS 106 (Tenn. Ct. App. 1933).

The statute is primarily a survival statute. If decedent could not have sued, no right survives. McCreary v. Nashville, C. & S. L. Ry., 161 Tenn. 691, 34 S.W.2d 210, 1930 Tenn. LEXIS 56 (1931); Oman v. Delius, 162 Tenn. 192, 35 S.W.2d 570, 1930 Tenn. LEXIS 79 (1931).

This section is in the nature of descent and distribution statutes and the character of the beneficiaries under such statutes is not material. Johnson v. Morgan, 184 Tenn. 254, 198 S.W.2d 549, 1947 Tenn. LEXIS 372 (1947).

An unborn viable child is not a person within the meaning of this section and therefore action cannot be maintained under this section for the death of such child. Hogan v. McDaniel, 204 Tenn. 235, 319 S.W.2d 221, 1958 Tenn. LEXIS 263 (1958); Durrett v. Owens, 212 Tenn. 614, 371 S.W.2d 433, 1963 Tenn. LEXIS 451 (1963); Hamby v. McDaniel, 559 S.W.2d 774, 1977 Tenn. LEXIS 652 (Tenn. 1977) (decided prior to amendment).

Where death of plaintiff's husband resulted from a maritime tort committed on navigable waters within state, court could entertain a libel in personam against defendant alleged to have proximately caused such death under this section, giving a right of action on account of death by wrongful act. Byrd v. Belcher, 203 F. Supp. 645, 1962 U.S. Dist. LEXIS 3206 (E.D. Tenn. 1962).

The word “person” as used in the beginning of this section is comprehensive and embraces every human being, male and female, married and single, and the words “his widow and next of kin” may include persons of either sex under § 1-3-104. Southeastern Aviation, Inc. v. Hurd, 209 Tenn. 639, 355 S.W.2d 436, 1962 Tenn. LEXIS 400 (1962), appeal dismissed, 371 U.S. 21, 83 S. Ct. 120, 9 L. Ed. 2d 96, 1962 U.S. LEXIS 389 (1962), dismissed, International Brotherhood, T. C. W. & H. v. Overnite Transp. Co., 9 L. Ed. 2d 100, 83 S. Ct. 120, 371 U.S. 862, 1962 U.S. LEXIS 2240 (1962).

The wrongful death statutes do not create any new right but merely keep alive the deceased's right of action for benefit of those named. Southeastern Aviation, Inc. v. Hurd, 209 Tenn. 639, 355 S.W.2d 436, 1962 Tenn. LEXIS 400 (1962), appeal dismissed, 371 U.S. 21, 83 S. Ct. 120, 9 L. Ed. 2d 96, 1962 U.S. LEXIS 389 (1962), dismissed, International Brotherhood, T. C. W. & H. v. Overnite Transp. Co., 9 L. Ed. 2d 100, 83 S. Ct. 120, 371 U.S. 862, 1962 U.S. LEXIS 2240 (1962).

A viable infant en ventre sa mere suffering injuries may, upon being born alive, prosecute an action against those negligently inflicting such injuries to recover compensation therefor and when the child dies from such injuries the parent of the child may prosecute an action for such injuries and death. Shousha v. Matthews Drivurself Service, Inc., 210 Tenn. 384, 358 S.W.2d 471, 1962 Tenn. LEXIS 448 (1962).

An illegitimate child may maintain an action for the wrongful death of his mother. Sneed v. Henderson, 211 Tenn. 572, 366 S.W.2d 758, 1963 Tenn. LEXIS 496 (1963).

This section applies equally whether the deceased injured party be male or female. Sneed v. Henderson, 211 Tenn. 572, 366 S.W.2d 758, 1963 Tenn. LEXIS 496 (1963).

Finding of probate judge that proceeds recovered by personal representative under medical payment clause of insurance policy were free from claims of creditors was correct but such exemption was under §§ 26-2-109, 26-2-110 rather than under this section. In re Estate of Jennings, 212 Tenn. 107, 368 S.W.2d 289, 1963 Tenn. LEXIS 402 (1963).

The Tennessee wrongful death statutes, this section and § 20-5-113, are of the survival type, which simply preserve any action which the decedent would have had. Milligan v. American Hoist & Derrick Co., 622 F. Supp. 56, 1985 U.S. Dist. LEXIS 16397 (W.D. Tenn. 1985).

This statute is primarily a survival statute and no right of action exists independently of that which the deceased would have had, had the deceased survived. Rogers v. Donelson-Hermitage Chamber of Commerce, 807 S.W.2d 242, 1990 Tenn. App. LEXIS 816 (Tenn. Ct. App. 1990).

In a wrongful death action by the father who survived the deceased mother, and the mother's unborn child, it was clear that a viable fetus “resided wherever its mother resided,” and therefore, the family exclusion provision in the policy was applicable, the insurer was not required to provide coverage for bodily injury to fetus, and the trial court's grant of partial summary judgment in favor of father, was reversed. Hollis v. Doerflinger, 137 S.W.3d 625, 2003 Tenn. App. LEXIS 416 (Tenn. Ct. App. 2003).

4. Cause of Action.

This section does not create a new cause of action, but simply preserves the defendant's right of action, which would otherwise be extinguished by his death. Elliott v. Felton, 119 F. 270, 1902 U.S. App. LEXIS 4665 (6th Cir. Tenn. 1902); Sharp v. Cincinnati, N. O. & T. P. R. Co., 133 Tenn. 1, 179 S.W. 375, 1915 Tenn. LEXIS 67 (1915).

The right of action of the deceased for personal injuries wrongfully inflicted causing his death is kept alive and preserved by statute, for the benefit of his widow, children or next of kin, and a suit commenced by decedent while in life may be prosecuted to judgment for the same purpose; but no new or independent cause of action is created in favor of such parties. Stuber v. Louisville & N. R. Co., 113 Tenn. 305, 87 S.W. 411, 1904 Tenn. LEXIS 28 (1904); St. Louis, I. M. & S. R. Co. v. Leazer, 119 Tenn. 1, 107 S.W. 684, 1907 Tenn. LEXIS 1 (1908); Wilson v. Barton, 153 Tenn. 250, 283 S.W. 71, 1925 Tenn. LEXIS 25 (1926).

Where death resulted other than from the acts of the defendant, and where no action was instituted before death, a cause of action for pain and suffering did not survive the death of the victim. Stewart v. Crook Sanatorium, 17 Tenn. App. 589, 69 S.W.2d 259, 1933 Tenn. App. LEXIS 93 (Tenn. Ct. App. 1933).

Amended declaration in death action based on law of foreign state did not change cause of action merely because amended complaint cited particular foreign statutes upon which plaintiff relied to sustain cause of action which original declaration did not cite. Parsons v. American Trust & Banking Co., 168 Tenn. 49, 73 S.W.2d 698, 1934 Tenn. LEXIS 19 (1934).

This section creates no new cause of action, but merely preserves from abatement or extinguishment the right of action which a person dying from the wrongful act of another would have had against the wrongdoer, had death not ensued. Wilson v. Massengill, 124 F.2d 666, 1942 U.S. App. LEXIS 4550 (6th Cir. Tenn. 1942), cert. denied, 316 U.S. 686, 62 S. Ct. 1274, 86 L. Ed. 1758, 1942 U.S. LEXIS 572 (1942).

This section only applies where death resulted from the acts of the defendant out of which the suit is brought, and where no action is instituted before the death the cause of action for pain and suffering does not survive the death of the victim. Carne v. Maryland Casualty Co., 208 Tenn. 403, 346 S.W.2d 259, 1961 Tenn. LEXIS 299 (1961).

Where death resulted from brain tumor and testimony of family physician that tumor may have been aggravated by electric shock received on defendant's car was purely speculative and testimony by experts in the field of neurosurgery testified that the cause of the particular tumor was unknown, it was proper for the court to direct a verdict in favor of the defendant on the ground that death of deceased was not caused by the electric shock. Gipson v. Memphis S. R. Co., 51 Tenn. App. 31, 364 S.W.2d 110, 1962 Tenn. App. LEXIS 93 (Tenn. Ct. App. 1962).

In wrongful death action complaint which alleged that deceased, the alleged paramour of defendant, had been under domination and control of defendant and that he had sadistically treated her to the extent that she committed suicide was not sufficient to state a cause of action since complaint alleged an efficient, intervening and unforeseen cause. Lancaster v. Montesi, 216 Tenn. 50, 390 S.W.2d 217, 1965 Tenn. LEXIS 558 (1965).

Neither common law nor Married Woman's Emancipation Statute gives wife cause of action for tort against husband so the next of kin of wife has no cause of action against husband for wrongful death of wife. Hance v. Haun, 216 Tenn. 176, 391 S.W.2d 621, 1965 Tenn. LEXIS 570 (1965), overruled, Luna v. Clayton, 655 S.W.2d 893, 1983 Tenn. LEXIS 656, 1983 Tenn. LEXIS 788 (Tenn. 1983).

Child or next of kin of deceased has cause of action only if deceased would have had cause of action against wrongdoer if he had lived. Hance v. Haun, 216 Tenn. 176, 391 S.W.2d 621, 1965 Tenn. LEXIS 570 (1965), overruled, Luna v. Clayton, 655 S.W.2d 893, 1983 Tenn. LEXIS 656, 1983 Tenn. LEXIS 788 (Tenn. 1983).

The language of the Tennessee Wrongful Death Statute is sufficiently broad to embrace an action where death has resulted from breach of an implied statutory warranty under the Uniform Commercial Code. Commercial Truck & Trailer Sales, Inc. v. McCampbell, 580 S.W.2d 765, 1979 Tenn. LEXIS 427 (Tenn. 1979).

If none of the statutorily prescribed beneficiaries exist, then the cause of action cannot be brought because the existence of one of such beneficiaries is a prerequisite to bringing an action for wrongful death. Foster v. Jeffers, 813 S.W.2d 449, 1991 Tenn. App. LEXIS 8 (Tenn. Ct. App. 1991), appeal denied, 1991 Tenn. LEXIS 113 (Tenn. Mar. 18, 1991), appeal denied, 1991 Tenn. LEXIS 183 (Tenn. May 6, 1991).

Court declined to add claims under 42 U.S.C.S. § 1981 to the list of actions which affected character and were abated at the claimant's death under T.C.A. § 20-5-106; therefore, the general contractor's motion to dismiss the administratrix's discrimination claim on behalf of the deceased under 42 U.S.C.S. § 1981 was denied. Medrano v. MCDR, Inc., 366 F. Supp. 2d 625, 2005 U.S. Dist. LEXIS 15074 (W.D. Tenn. 2005).

5. Right of Action.

Right of action for a wrongful death is that which the deceased would have possessed if he had lived, and the recovery is in the right of the deceased. Sharp v. Cincinnati, N. O. & T. P. R. Co., 133 Tenn. 1, 179 S.W. 375, 1915 Tenn. LEXIS 67 (1915); Middle T. R. Co. v. McMillan, 134 Tenn. 490, 184 S.W. 20, 1915 Tenn. LEXIS 174 (1916); Oman v. Delius, 162 Tenn. 192, 35 S.W.2d 570, 1930 Tenn. LEXIS 79 (1931); Memphis S. R. Co. v. Cooper, 203 Tenn. 425, 313 S.W.2d 444, 1958 Tenn. LEXIS 321 (1958); Hance v. Haun, 216 Tenn. 176, 391 S.W.2d 621, 1965 Tenn. LEXIS 570 (1965), overruled, Luna v. Clayton, 655 S.W.2d 893, 1983 Tenn. LEXIS 656, 1983 Tenn. LEXIS 788 (Tenn. 1983); Rogers v. Donelson-Hermitage Chamber of Commerce, 807 S.W.2d 242, 1990 Tenn. App. LEXIS 816 (Tenn. Ct. App. 1990).

The right of action is governed by the law of the state where the wrongful injury occurred. Sharp v. Cincinnati, N. O. & T. P. R. Co., 133 Tenn. 1, 179 S.W. 375, 1915 Tenn. LEXIS 67 (1915); Parsons v. American Trust & Banking Co., 168 Tenn. 49, 73 S.W.2d 698, 1934 Tenn. LEXIS 19 (1934).

The right of action for a wrongful killing is statutory so that both the action and the procedure for the distribution of the proceeds of any recovery must rest on the statute. Black v. Roberts, 172 Tenn. 20, 108 S.W.2d 1097, 1937 Tenn. LEXIS 45 (1937).

A wrongful death must be treated as if the injured party had brought it. Memphis S. R. Co. v. Cooper, 203 Tenn. 425, 313 S.W.2d 444, 1958 Tenn. LEXIS 321 (1958); Hance v. Haun, 216 Tenn. 176, 391 S.W.2d 621, 1965 Tenn. LEXIS 570 (1965), overruled, Luna v. Clayton, 655 S.W.2d 893, 1983 Tenn. LEXIS 656, 1983 Tenn. LEXIS 788 (Tenn. 1983).

The right of action for wrongful death is statutory and both the action and procedure for distribution of the proceeds of any recovery rests on the statute. Memphis S. R. Co. v. Cooper, 203 Tenn. 425, 313 S.W.2d 444, 1958 Tenn. LEXIS 321 (1958); Anderson v. Anderson, 211 Tenn. 566, 366 S.W.2d 755, 1963 Tenn. LEXIS 381 (1963).

Where a right of action is dependent upon the provisions of this section the court is not privileged to create such a right of action under the guise of a liberal interpretation of it. Hogan v. McDaniel, 204 Tenn. 235, 319 S.W.2d 221, 1958 Tenn. LEXIS 263 (1958).

Where divorced father killed mother of children, personal representative of mother could bring action under this section for the benefit of such children since such action is brought upon the right of the deceased person and the benefit of the children being through the deceased, it not in fact being an action by the children against the father. Brown v. Selby, 206 Tenn. 71, 332 S.W.2d 166, 1960 Tenn. LEXIS 344 (1960).

The right of action for wrongful death passes to the personal representative of the deceased and any recovery had in the case passes to the beneficiaries named in the statute not of their own right but in the right of the deceased. Herrell v. Haney, 207 Tenn. 532, 341 S.W.2d 574, 1960 Tenn. LEXIS 489 (1960).

If there was contributory negligence of plaintiff motorist in a collision which injured him and his wife who owned the automobile and was riding as a passenger therein, such would bar recovery, both for his own injuries and for the wrongful death of his wife, whose right of action passed to him at her death. Cline v. United States, 214 F. Supp. 66, 1962 U.S. Dist. LEXIS 3269 (E.D. Tenn. 1962).

The statute must be strictly construed against the maintenance of any right of action not expressly provided for. Dilworth v. Tisdale Transfer & Storage Co., 209 Tenn. 449, 354 S.W.2d 261, 1962 Tenn. LEXIS 376 (1962).

In the absence of an award of custody in a divorce decree, the right of action under this section vests equally in both parents regardless of questions of support or physical care. Jamison v. Memphis Transit Management Co., 381 F.2d 670, 1967 U.S. App. LEXIS 5416 (6th Cir. Tenn. 1967).

Despite ambiguity in statutory language, state wrongful death statutes are of survival type, and no right of action exists independently of that which the deceased would have had, had he survived. Jones v. Black, 539 S.W.2d 123, 1976 Tenn. LEXIS 572 (Tenn. 1976).

The moral worth of the nominal plaintiff and ultimate beneficiary is totally unrelated to a wrongful death action as it is the right of action which the deceased would have had, had he survived. Tutor v. Bingham, 545 S.W.2d 944, 1976 Tenn. App. LEXIS 262 (Tenn. Ct. App. 1976).

The plaintiff in a wrongful death action acquires only those rights that the decedent would have had, had she survived. Stokes v. Smoky Mountain Aero, Inc., 457 F. Supp. 677, 1978 U.S. Dist. LEXIS 15841 (E.D. Tenn. 1978).

Right of action under wrongful death statute for the defendants' alleged tortious conduct arose at the time deceased suffered the injuries that led to her death and not at the time of her death which was two days after receiving the injuries. Rogers v. Donelson-Hermitage Chamber of Commerce, 807 S.W.2d 242, 1990 Tenn. App. LEXIS 816 (Tenn. Ct. App. 1990).

The divorced noncustodial parent of a child had a right of action for the wrongful death of that child and, thus, was entitled to share in the proceeds from an action filed by the custodial parent. Mangrum v. Owens, 917 S.W.2d 244, 1995 Tenn. App. LEXIS 649 (Tenn. Ct. App. 1995).

Where a hospital employee was terminated for insubordination and the employee alleged that the termination was for complaining about medical mistreatment of patients, the employee could not bring suit under the Tennessee Wrongful Death Statute regarding the deaths of patients. Caruso v. St. Jude Children's Research Hosp., Inc., 215 F. Supp. 2d 930, 2002 U.S. Dist. LEXIS 18989 (W.D. Tenn. 2002), dismissed, Caruso v. St. Jude Children's Research Hosp., — F. Supp. 2d —, 2002 U.S. Dist. LEXIS 18988 (W.D. Tenn. Sept. 19, 2002).

Administrator's motion to intervene pursuant to Fed. R. Civ. P. 24(a) was denied because, under T.C.A. § 20-5-106(a) and T.C.A. § 20-5-107(a), the administrator had no interest in the action because he had no interest in the recovery; the administrator was only a medium for enforcement of the rights of the beneficiaries of the deceased son, who had already initiated the wrongful death action. Martin v. Corr. Corp. of Am., 231 F.R.D. 532, 2005 U.S. Dist. LEXIS 29566 (W.D. Tenn. 2005).

Surviving spouse never had an individual claim to assert because the wrongful death claims he asserted against a hospital were brought in a representative capacity on behalf of the decedent; the decedent's children did not have a separate claim but one indivisible cause of action existed, the cause of action the decedent would have had against the wrongdoer, and thus, the decedent's survivors were only permitted to assert the cause of action in a representative capacity on the decedent's behalf. Beard v. Branson, — S.W.3d —, 2016 Tenn. App. LEXIS 233 (Tenn. Ct. App. Mar. 31, 2016), rehearing denied, — S.W.3d —, 2016 Tenn. App. LEXIS 287 (Tenn. Ct. App. Apr. 26, 2016), rev'd, 528 S.W.3d 487, 2017 Tenn. LEXIS 540 (Tenn. Aug. 30, 2017).

Court of appeals erred in reversing the denial of a hospital's motion for summary judgment in a surviving spouse's wrongful death action because the surviving spouse did not file the initial pro se complaint as the legal representative of either the decedent or the decedent's estate where, under the plain language of the wrongful death statute statutes, the decedent's right of action passed to the surviving spouse upon the decedent's death, the surviving spouse was asserting his own right of action, and even if the interests of the passive beneficiaries might be implicated, the initial pro se complaint was not a nullity and it was curable by amendment to add counsel. Beard v. Branson, 528 S.W.3d 487, 2017 Tenn. LEXIS 540 (Tenn. Aug. 30, 2017).

Trial court erred in dismissing a daughter's wrongful death action against a decedent's husband on the ground that the husband, as the surviving spouse, was granted priority to prosecute the action because the husband's conduct was alleged to have caused the decedent's death, making him a potential wrongdoer; the husband had an inherent conflict, but his complaint did not name himself as a defendant nor include the allegation that he was a wrongdoer. Nelson v. Myres, — S.W.3d —, 2017 Tenn. App. LEXIS 29 (Tenn. Ct. App. Jan. 18, 2017).

Court of Appeals erred in reversing the trial court's dismissal of a daughter's wrongful death complaint and in finding that the surviving spouse was disqualified from filing the wrongful death action because the statute did not include an exception to the spousal priority rule for circumstances where the surviving spouse's alleged negligence caused the decedent's death, and holding that he waived his right to file the wrongful death action despite actually filing a complaint would be an unwarranted expansion of the doctrine of waiver. Nelson v. Myres, — S.W.3d —, 2018 Tenn. LEXIS 134 (Tenn. Mar. 5, 2018).

6. —Waiver.

While the widow's right of action is prior and superior, she may waive her right by permitting administrator to sue without her objection; but the widow is not guilty of unreasonable delay where she sued five months before expiration of limitation period. Koontz v. Fleming, 17 Tenn. App. 1, 65 S.W.2d 821, 1933 Tenn. App. LEXIS 44 (Tenn. Ct. App. 1933).

Since a mother's right of action was superior to that of the personal representative of the decedent and since the mother refused to waive her right of action, suit by the representative was dismissed. Troutman v. Johnson City, 392 F. Supp. 556, 1973 U.S. Dist. LEXIS 13855 (E.D. Tenn. 1973).

Mother could not execute a valid release as to the rights of her daughter to sue for injuries suffered from the alleged negligent acts of the defendants, and release signed by mother did not bar wrongful death action brought by mother on daughter's behalf. Rogers v. Donelson-Hermitage Chamber of Commerce, 807 S.W.2d 242, 1990 Tenn. App. LEXIS 816 (Tenn. Ct. App. 1990).

Doctrine of promissory estoppel did not serve to expand the legal effect of release signed by mother of decedent to cover the action decedent would have had for the injuries that resulted in her death. Rogers v. Donelson-Hermitage Chamber of Commerce, 807 S.W.2d 242, 1990 Tenn. App. LEXIS 816 (Tenn. Ct. App. 1990).

Release signed by mother was effective to waive any claim mother would have had in her own right, not arising under the wrongful death statute, for the injuries to her daughter. Rogers v. Donelson-Hermitage Chamber of Commerce, 807 S.W.2d 242, 1990 Tenn. App. LEXIS 816 (Tenn. Ct. App. 1990).

A surviving spouse, who knows that he has a right of action for wrongful death, waives his right when he fails to maintain control over it by either effecting a compromise or bringing the action to trial. Foster v. Jeffers, 813 S.W.2d 449, 1991 Tenn. App. LEXIS 8 (Tenn. Ct. App. 1991), appeal denied, 1991 Tenn. LEXIS 113 (Tenn. Mar. 18, 1991), appeal denied, 1991 Tenn. LEXIS 183 (Tenn. May 6, 1991).

Where surviving spouse knowingly waived his right of action for wrongful death, he also waived his right to collect any proceeds from the wrongful death action. Foster v. Jeffers, 813 S.W.2d 449, 1991 Tenn. App. LEXIS 8 (Tenn. Ct. App. 1991), appeal denied, 1991 Tenn. LEXIS 113 (Tenn. Mar. 18, 1991), appeal denied, 1991 Tenn. LEXIS 183 (Tenn. May 6, 1991).

In a case where the surviving spouse has knowingly waived his right to bring a wrongful death action and there are no surviving children of the deceased, the right of action as well as the right to collect the proceeds therefrom pass to the next of kin. Foster v. Jeffers, 813 S.W.2d 449, 1991 Tenn. App. LEXIS 8 (Tenn. Ct. App. 1991), appeal denied, 1991 Tenn. LEXIS 113 (Tenn. Mar. 18, 1991), appeal denied, 1991 Tenn. LEXIS 183 (Tenn. May 6, 1991).

Summary judgment was not appropriate to dismiss child's challenge to the parent's release relieving the parent's sibling of any liability for the parent's spouse's death where the extent of the parent's investigation into the facts of the shooting was unclear and material evidence existed to dispute the parent's sibling's account of how the shooting occurred. Estate of Baker v. Maples, 995 S.W.2d 114, 1999 Tenn. App. LEXIS 33 (Tenn. Ct. App. 1999).

Court of appeals properly denied a decedent's brother relief because the statute became effective well after the decedent's accident, and subsection (c)(1)(2) could not be applied retroactively. Spires v. Simpson, — S.W.3d —, 2017 Tenn. LEXIS 852 (Tenn. Dec. 27, 2017).

7. Form of Action.

The substantive rights conferred by this section upon the widow and children are not affected by the form of action which they may elect to bring. State ex rel. Morris v. National Surety Co., 162 Tenn. 547, 39 S.W.2d 581, 1930 Tenn. LEXIS 122 (1931).

Where the widow of a truck driver brought action in the federal court in Tennessee for the death of her husband allegedly from the negligent mounting of a truck tire by employees of defendant, this being a diversity of citizenship case, the substantive law of Tennessee was applicable. Price v. Firestone Tire & Rubber Co., 321 F.2d 725, 1963 U.S. App. LEXIS 4298 (6th Cir. Tenn. 1963).

Wrongful death beneficiaries'  claims against a nursing home arising from the death of a resident were subject to an arbitration agreement between the resident and the home; the wrongful death claim belonged to the resident's estate and not to the beneficiaries, so the beneficiaries were required to seek their damages in the arbitral forum agreed to by the estate. Wood v. Greenfield Assisted Living of Memphis, LLC, — F. Supp. 2d —, 2015 U.S. Dist. LEXIS 179186 (W.D. Tenn. June 22, 2015).

8. Service.

Where deceased, a resident of Tennessee, was killed in an automobile accident on a highway in Tennessee, the mother of deceased, a resident of Florida, appointed as administratrix by Tennessee court was entitled to sue tort-feasor, a resident of Illinois in federal court in Tennessee, and was entitled to privilege of having her summons accepted by secretary of state just as if she had been an actual resident of Tennessee. Hunt v. Noll, 112 F.2d 288, 1940 U.S. App. LEXIS 4284 (6th Cir. Tenn. 1940), cert. denied, 311 U.S. 690, 61 S. Ct. 71, 85 L. Ed. 446, 1940 U.S. LEXIS 196 (Oct. 28, 1940).

9. Declaration.

Where the declaration stated a cause of action at common law, an amendment thereof, by adding count specially declaring liability under the statute, did not constitute a departure from the original declaration nor introduce a new cause of action. Southern R. Co. v. Simpson, 131 F. 705, 1904 U.S. App. LEXIS 4309 (6th Cir. Tenn. 1904).

In action to recover for the wrongful death of a three year old boy alleged to have been negligently struck by defendant's automobile, the declaration held sufficient, although it alleged that the decedent left surviving him as his heirs at law, his father and mother without further allegations as to his heirs. Walkup v. Covington, 18 Tenn. App. 117, 73 S.W.2d 718, 1933 Tenn. App. LEXIS 106 (Tenn. Ct. App. 1933).

10. —Place of Death.

In an action for wrongful death in another state the declaration must aver and the proof must show a survival statute in such state, the presumption being that the common law which did not provide for survival was in force in such other state. Nashville & C. R. Co. v. Eakin, 46 Tenn. 582, 1869 Tenn. LEXIS 103 (1869); Chumley v. Louisville & N.R.R., 5 Tenn. Civ. App. (5 Higgins) 73 (1914).

Place of killing, when sufficiently pleaded. Hobbs v. Memphis & C. R. Co., 56 Tenn. 873, 1872 Tenn. LEXIS 216 (1872).

Declaration in death action based on construction of foreign statutes does not have to plead cases construing statutes but it is sufficient to plead the statutes. Parsons v. American Trust & Banking Co., 168 Tenn. 49, 73 S.W.2d 698, 1934 Tenn. LEXIS 19 (1934).

Widow of deceased killed in automobile accident in Florida was entitled to sue administrator of deceased driver in Tennessee where law in Florida provided that action survived in favor of widow even though law in Tennessee provided that action did not survive unless filed prior to death of tort-feasor. Parsons v. American Trust & Banking Co., 168 Tenn. 49, 73 S.W.2d 698, 1934 Tenn. LEXIS 19 (1934).

11. —Proximate Cause.

Where a person has received injuries, and many months thereafter dies of a germ disease, in no wise connected with such injury, a cause of action does not arise on the theory that by reason of such injuries the victim's constitution became weakened and thereby rendered him an easy prey to such disease. Nashville v. Reese, 138 Tenn. 471, 197 S.W. 492, 1917 Tenn. LEXIS 58 (1917).

Widow could not bring an action to recover for the negligent injury of her deceased husband where it appeared that such injuries were not a contributing cause of his death. Willis v. Heath, 21 Tenn. App. 179, 107 S.W.2d 228, 1937 Tenn. App. LEXIS 17 (Tenn. Ct. App. 1937).

12. Defenses.

13. —Statute of Limitations.

The rights of the infant children or other infant next of kin, as beneficiaries, are barred within one year. Bledsoe v. Stokes, 60 Tenn. 312, 1872 Tenn. LEXIS 497 (1873); Whaley v. Catlett, 103 Tenn. 347, 53 S.W. 131, 1899 Tenn. LEXIS 115 (1899); Love v. Southern R. Co., 108 Tenn. 104, 65 S.W. 475, 1901 Tenn. LEXIS 13, 55 L.R.A. 471 (1901).

Actions for personal injuries shall be commenced within one year after the cause of action has accrued, and the suit is barred, if the action is not commenced within one year after the right accrues. Bledsoe v. Stokes, 60 Tenn. 312, 1872 Tenn. LEXIS 497 (1873); Fowlkes v. Nashville & D. R. Co., 56 Tenn. 829, 1872 Tenn. LEXIS 211 (1872); Wiley v. State, 64 Tenn. 662, 1875 Tenn. LEXIS 152 (1875); Whaley v. Catlett, 103 Tenn. 347, 53 S.W. 131, 1899 Tenn. LEXIS 115 (1899).

An action for personal injuries resulting in death is barred by the statute of limitations, unless brought within one year after the injury was done, notwithstanding the disabilities of the beneficiaries. Whaley v. Catlett, 103 Tenn. 347, 53 S.W. 131, 1899 Tenn. LEXIS 115 (1899); Love v. Southern R. Co., 108 Tenn. 104, 65 S.W. 475, 1901 Tenn. LEXIS 13, 55 L.R.A. 471 (1901); Davidson Benedict Co. v. Severson, 109 Tenn. 572, 72 S.W. 967, 1902 Tenn. LEXIS 95 (1903), overruled, Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999).

The statute of limitations of one year and the statute authorizing renewal of an action after dismissal on grounds not concluding the right are applicable to the rights extended to widows and next of kin under this section. Rye v. Dupont Rayon Co., 163 Tenn. 95, 40 S.W.2d 1041, 1931 Tenn. LEXIS 92 (1931).

Summons issued within one year period tolled statute of limitations although declaration was not filed until after one year period even though Private Acts 1917, ch. 30 stated that in counties with population of more than 150,000 the declaration should be filed upon suing out of summons, since private act could not suspend the general law of the state. Parsons v. American Trust & Banking Co., 168 Tenn. 49, 73 S.W.2d 698, 1934 Tenn. LEXIS 19 (1934).

An action for wrongful death of a minor must be brought within one year of the accrual of the cause of action. Collier v. Memphis Light, Gas & Water Div., 657 S.W.2d 771, 1983 Tenn. App. LEXIS 606 (Tenn. Ct. App. 1983).

14. — —Commencement of Period.

The statute of limitations of one year begins to run from the moment of the injury, when the right of action accrued, and is not suspended by the death of the injured party, nor during the time that intervenes between such death and the appointment and qualification of the personal representative. Fowlkes v. Nashville & D. R. Co., 56 Tenn. 829, 1872 Tenn. LEXIS 211 (1872); Wiley v. State, 64 Tenn. 662, 1875 Tenn. LEXIS 152 (1875); Trafford v. Adams Express Co., 76 Tenn. 96, 1881 Tenn. LEXIS 14 (1881); Whaley v. Catlett, 103 Tenn. 347, 53 S.W. 131, 1899 Tenn. LEXIS 115 (1899); Davidson Benedict Co. v. Severson, 109 Tenn. 572, 72 S.W. 967, 1902 Tenn. LEXIS 95 (1903), overruled, Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999).

15. — —Running of Period.

Action brought by administrator, whose letters are subsequently revoked because issued in the wrong county, interrupts the running of the statute. Jacobs v. Pope, 8 Tenn. Civ. App. 452 (1915).

16. — —Foreign Laws.

Where, by statute, a state creates a cause of action for death by wrongful act and prescribes in the same statute a limitation period for action, such limitation will be applied in the forum of a sister state, even though the period of limitation for like actions in the latter state is shorter. Wilson v. Massengill, 124 F.2d 666, 1942 U.S. App. LEXIS 4550 (6th Cir. Tenn. 1942), cert. denied, 316 U.S. 686, 62 S. Ct. 1274, 86 L. Ed. 1758, 1942 U.S. LEXIS 572 (1942).

Wrongful death action filed in Tennessee against former resident of Mississippi to recover damages for death of decedent occurring in automobile accident in Mississippi was governed by one year limitation period of Tennessee instead of six year limitation period prevailing in Mississippi. McDaniel v. Mulvihill, 196 Tenn. 41, 263 S.W.2d 759, 1953 Tenn. LEXIS 404 (1953).

17. — —Amendments.

A suit, commenced in the name of the administrator of the deceased, without mention of the statutory beneficiaries of the recovery sought, is effectively commenced so as to prevent the running of the statute of limitations, because the action is that of the administrator, and not that of such beneficiaries, though prosecuted for their benefit, and because the decedent's right of action was merely preserved for them; and while such omission is a fatal defect, it may be cured by amendment, which will relate back to the commencement of the suit so as to prevent the running of the one year statute of limitations after the commencement of the suit. Love v. Southern R. Co., 108 Tenn. 104, 65 S.W. 475, 1901 Tenn. LEXIS 13, 55 L.R.A. 471 (1901).

Where father, sole beneficiary, brought suit as such for death of his daughter, and, more than one year after such death, amended the summons so as to show suit by him as administrator, the amendment related to the issuance of the writ and saved action from the bar. Whitson v. Tennessee C. R. Co., 163 Tenn. 35, 40 S.W.2d 396, 1930 Tenn. LEXIS 136 (1931).

In an action by an administrator under this section, where the summons was silent as to beneficiaries, and the declaration stated that the action was for the benefit of the brothers of deceased, and a plea in abatement questioned the right of the brothers to be beneficiaries, and plaintiff asked leave to amend the declaration by striking out the words concerning beneficiaries and by stating that the action was for the benefit of the parents of deceased, and this application for leave to amend was made after the expiration of the statute of limitations, and the court refused to permit the amendment and dismissed the action, it was held that the issuance of the summons was the commencement of the action and the proposed amendment was not inconsistent with the summons and would not have been the commencement of a new cause of action after the expiration of the statute of limitations, and that the court erred in refusing to permit the amendment and in dismissing the action. Townsend v. Nashville, C. & S. L. Ry., 170 Tenn. 239, 94 S.W.2d 384, 1936 Tenn. LEXIS 8 (1936).

In action by father as next of kin for wrongful death of minor son father could amend complaint so as to include mother of deceased as party plaintiff and amendment would relate back to time of filing original action, since cause of action would not be changed by adding party plaintiff; and this was so even though suit by mother would have been barred by statute of limitations. Mosier v. Lucas, 30 Tenn. App. 498, 207 S.W.2d 1021, 1947 Tenn. App. LEXIS 107 (Tenn. Ct. App. 1947).

One year statute of limitations in § 28-3-104 does not bar decedent's parents as next of kin from amending summons where action for wrongful death of decedent was originally brought by the father as an administrator. Gogan v. Jones, 197 Tenn. 436, 273 S.W.2d 700, 1954 Tenn. LEXIS 505 (1954).

18. — —Renewal of Suit After Dismissal.

The statute, § 28-1-105, authorizing the renewal of suit within one year after dismissal of first is applicable to the right and remedy for wrongful death. Rye v. Dupont Rayon Co., 163 Tenn. 95, 40 S.W.2d 1041, 1931 Tenn. LEXIS 92 (1931).

19. —Proper Parties.

In action against tort-feasor by the administrator, the defendant may raise the question of the widow's superior right to sue; and the burden is on the one claiming that the right was waived to prove it by a preponderance of evidence. Koontz v. Fleming, 17 Tenn. App. 1, 65 S.W.2d 821, 1933 Tenn. App. LEXIS 44 (Tenn. Ct. App. 1933).

Where wrongful death action was brought by alleged widow as administratrix on behalf of herself and alleged minor children of decedent and trial court properly charged that measure of damages was the pecuniary value of the life of the decedent, trial court improperly granted motion for new trial on ground of newly discovered evidence that the widow and children were not decedent's since defendant had knowledge of the facts sufficient to put it on notice of the relationship and since existence of widow and children did not bear on the question of damages. Memphis S. R. Co. v. Cooper, 203 Tenn. 425, 313 S.W.2d 444, 1958 Tenn. LEXIS 321 (1958).

In a wrongful death action, where married deceased's parents had brought the action but the complaint was dismissed on the ground that the right of action, if any, passed to deceased's husband rather than to her parents, it was proper to allow substitution of deceased's husband as plaintiff in the action under Tenn. R. Civ. P. 17.01, even though the statute of limitations of one year had run prior to the filing of the motion for substitution, since the husband was the real party in interest and he made his application for substitution within a reasonable time after objection was made by defendants to the status of the original plaintiffs as real parties in interest. Chapman v. King, 572 S.W.2d 925, 1978 Tenn. LEXIS 666 (Tenn. 1978).

Trial court erred in denying the motion for a hearing filed by the father of a decedent's children on the issue of whether the decedent's husband had abandoned the mother and, thus, lacked standing to prosecute the wrongful death action as the affidavits of the father and the decedent's friend established that the husband and the decedent had been separated for more than two years and that the husband had not supported the decedent or her children during the marriage. These statements provided evidence of abandonment within the meaning of T.C.A. § 36-4-101(a)(13), thus raising the presumption that the husband waived his right as surviving spouse to prosecute the wrongful death action. Baugh v. UPS, — S.W.3d —, 2012 Tenn. App. LEXIS 900 (Tenn. Ct. App. Dec. 21, 2012), rehearing denied, — S.W.3d —, 2013 Tenn. App. LEXIS 29 (Tenn. Ct. App. Jan. 9, 2013), appeal dismissed, — S.W.3d —, 2013 Tenn. LEXIS 469 (Tenn. May 9, 2013).

Decedent's grandmother had standing to file a wrongful death action on his behalf against the county because she was authorized to do so by statute and there was no indication that the decedent had other beneficiaries who held a superior right to bring the action and objected to the grandmother doing so Haynes v. Wayne Cnty., — S.W.3d —, 2017 Tenn. App. LEXIS 249 (Tenn. Ct. App. Apr. 19, 2017).

20. —Parental Immunity.

This section required that the validity under the parental immunity doctrine of a tort action against an insured uncle who had stood in loco parentis to a deceased child had to be decided as if the death of the child had not ensued. Mathis v. Ammons, 453 F. Supp. 1033, 1978 U.S. Dist. LEXIS 17473 (E.D. Tenn. 1978).

21. —Contributory Negligence.

Where the plaintiff's decedent, killed in an automobile collision, was guilty of negligence proximately contributing to the accident, the plaintiff cannot recover for the death. Bejach v. Colby, 141 Tenn. 686, 214 S.W. 869, 1919 Tenn. LEXIS 20 (1919).

A mother who was negligent in driving her automobile resulting in a collision and her child's death cannot be allowed any benefit of administrator's recovery for such death, where her negligence was the proximate cause. Anderson v. Memphis S. R. Co., 143 Tenn. 216, 227 S.W. 39, 1920 Tenn. LEXIS 9 (1920).

In an action to recover damages for the wrongful death of a wife and mother, the contributory negligence of the husband cannot prejudice in any way the minor children who were not at fault. Hines v. Partridge, 144 Tenn. 219, 231 S.W. 16, 1920 Tenn. LEXIS 75 (1921).

The contributory negligence of one parent of a child wrongfully killed is imputable to the other so as to preclude recovery by or for the benefit of the parents or either of them in an action for the death of the child. Nichols v. Nashville Housing Authority, 187 Tenn. 683, 216 S.W.2d 694, 1949 Tenn. LEXIS 310 (1949); Anderson v. Memphis S. R. Co., 143 Tenn. 216, 227 S.W. 39, 1920 Tenn. LEXIS 9 (1920);Keener v. Morgan, 647 F.2d 691, 1981 U.S. App. LEXIS 13755 (6th Cir. 1981).

A recovery will not be allowed when the negligence of the sole beneficiary thereof proximately contributed to the death for which recovery is sought. Nichols v. Nashville Housing Authority, 187 Tenn. 683, 216 S.W.2d 694, 1949 Tenn. LEXIS 310 (1949).

Motorist, who skidded into the path of an oncoming truck in trying to avoid defendant's rural mail carrier who negligently drove onto the highway in his path, was subject to reduction in damages awarded, where his own negligence contributed remotely to the accident; and he was entitled to damages of $4,575.45 for his own injuries and $41,238.32 plus $600.00 property damage for death of his 24-year-old wife who had a weekly income of $76.00 and had suffered intense pain between accident and death. Cline v. United States, 214 F. Supp. 66, 1962 U.S. Dist. LEXIS 3269 (E.D. Tenn. 1962).

A recovery will not be permitted where the negligence of the sole beneficiary thereof proximately contributes to the death for which recovery of damages is sought. Smith v. Henson, 214 Tenn. 541, 381 S.W.2d 892, 1964 Tenn. LEXIS 505 (1964).

Contributory negligence of one parent of a child wrongfully killed is imputable to the other so as to preclude recovery by or for the benefit of the parents or either of them in an action for the death of the child. Smith v. Henson, 214 Tenn. 541, 381 S.W.2d 892, 1964 Tenn. LEXIS 505 (1964).

22. —Self-Defense.

A person starting an encounter who has no intention to inflict serious harm can rely upon plea of self-defense. Lowe v. Collins, 3 Tenn. Civ. App. (3 Higgins) 608 (1912).

If deceased and defendant by mutual consent agree to meet for a fight with deadly weapons the defendant cannot rely on plea of self-defense. Lowe v. Collins, 3 Tenn. Civ. App. (3 Higgins) 608 (1912).

If defendant arms himself with a deadly weapon and seeks a meeting with the deceased with the intention of so provoking the deceased that the deceased will commit an assault and give the defendant an opportunity to shoot him the defendant cannot rely upon plea of self-defense. Lowe v. Collins, 3 Tenn. Civ. App. (3 Higgins) 608 (1912).

The law of self-defense is the same in civil cases as in criminal cases except that in civil cases the cause can be decided on a preponderance of the evidence, whereas in a criminal proceeding the defendant is entitled to the benefit of the reasonable doubt. Hunt-Berlin Coal Co. v. Paton, 139 Tenn. 611, 202 S.W. 935, 1918 Tenn. LEXIS 12 (1918).

In an action to recover damages for wrongful death the burden of proof is upon the plaintiff to establish his cause by sufficient proof, but if there is a plea of self-defense the burden is on defendant to sustain the plea. Hunt-Berlin Coal Co. v. Paton, 139 Tenn. 611, 202 S.W. 935, 1918 Tenn. LEXIS 12 (1918).

Where defendant pleaded self-defense when he shot deceased who was pursuing him and reaching for an object in his pocket the following charge was held error “But if the jury finds that (deceased) was not making an assault on (defendant) which led (defendant) necessarily and reasonably to believe that his life was imperiled or that he was in danger of having great bodily harm inflicted upon him, then he had no right to fire,” since the use of the word “necessarily” was erroneous as it conveyed to the minds of the jurors the thought that defendant was not warranted in shooting until the circumstances were such as to compel him to believe that his life was in peril. Hunt-Berlin Coal Co. v. Paton, 139 Tenn. 611, 202 S.W. 935, 1918 Tenn. LEXIS 12 (1918).

Where defendant, a foreman for a coal company shot an employee of electric light company after latter had threatened to kill foreman with a gun and reached for something in his pocket and pulled out a shiny object the following instruction was held error “Even if the jury should find that (defendant) was not in peril and that it was necessary for him to fire in order to protect himself, still, if the jury should find the facts to be that the situation or happenings were such as to lead a prudent and cautious man to believe that he was in danger, even though he was not, the law would not hold him liable for firing the shot,” since by not prefixing the words “prudent and cautious” with the word “reasonable” the defendant was prejudiced. Hunt-Berlin Coal Co. v. Paton, 139 Tenn. 611, 202 S.W. 935, 1918 Tenn. LEXIS 12 (1918).

23. —Interspousal Immunity.

Wrongful death plaintiff barred from recovery against airplane pilot here where the decedent, had she survived, would have been barred from recovery under the rule of interspousal immunity. Stokes v. Smoky Mountain Aero, Inc., 457 F. Supp. 677, 1978 U.S. Dist. LEXIS 15841 (E.D. Tenn. 1978).

Interspousal tort immunity is totally abolished in this state and all decisions to the contrary are overruled. Davis v. Davis, 657 S.W.2d 753, 1983 Tenn. LEXIS 723 (Tenn. 1983).

24. Admissions.

Inasmuch as the right of action for a wrongful death is that of the decedent, it necessarily follows that any admissions made by him would be competent against those who succeeded to the action, as his widow and administratrix suing. Middle T. R. Co. v. McMillan, 134 Tenn. 490, 184 S.W. 20, 1915 Tenn. LEXIS 174 (1916).

25. Damages.

The language of this statute necessarily implies that exemplary damages may be recovered upon a proper state of facts; otherwise the right of action would not be the same as the deceased person would have had against the wrongdoer had his death not ensued from the wrongful act. Pratt v. Duck, 28 Tenn. App. 502, 191 S.W.2d 562, 1945 Tenn. App. LEXIS 87 (Tenn. Ct. App. 1945).

The recovery is not based on the existence of a widow, children or other next of kin but on the pecuniary value of the life of the decedent. Memphis S. R. Co. v. Cooper, 203 Tenn. 425, 313 S.W.2d 444, 1958 Tenn. LEXIS 321 (1958).

When determining the amount of damages based upon life expectancy and earning capacity there should be a deduction of the deceased's probable living expenses had the deceased lived. Wallace v. Couch, 642 S.W.2d 141, 1982 Tenn. LEXIS 363 (Tenn. 1982).

Recovery is based upon the pecuniary value of the life of the deceased to be determined upon a consideration of the deceased's expectancy of life, age, condition of health and strength, capacity for labor and for earning money through skill in any art, trade, profession, and occupation or business. Thrailkill v. Patterson, 879 S.W.2d 836, 1994 Tenn. LEXIS 196 (Tenn. 1994).

Loss of consortium may be considered when calculating the pecuniary value of a deceased's life, and such losses are not limited to spousal claims but also necessarily encompass a child's loss, whether minor or adult. Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999).

The holding in Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999) that loss of consortium may be considered when calculating the pecuniary value of a deceased's life and that such claims may encompass a child's loss, applies retroactively to: (1) All cases tried or retried after the date of the Jordan decision; and (2) All cases pending on appeal in which the issue decided in Jordan was raised at an appropriate time. Hill v. City of Germantown, 31 S.W.3d 234, 2000 Tenn. LEXIS 587 (Tenn. 2000).

Net recovery of fifty-one thousand dollars was not erroneous because the only basis for recovery was the decedent's daughter's claim for loss of parental consortium because, inter alia, the administrators offered no evidence pertaining to the loss of the decedent's future income and, although he was approved for disability payments shortly after his death, they failed to produce any values as to expected Social Security or disability payments; there was no evidence to support an award for damages sustained by the decedent himself because the administrators offered no evidence of medical expenses or burial expenses, nor could they have claimed lost wages or income, because the decedent died instantly. Hall v. Stewart, — S.W.3d —, 2007 Tenn. App. LEXIS 60 (Tenn. Ct. App. Jan. 31, 2007).

In a wrongful death action filed by the decedent's mother, she was required to demonstrate damages with some material evidence; there was no material evidence that supported an economic damage award in excess of $651,231.72, and thus the appellate court remanded with a suggestion of remittitur in the amount of $598,768. Dunn v. Davis, — S.W.3d —, 2007 Tenn. App. LEXIS 120 (Tenn. Ct. App. Mar. 6, 2007).

26. Beneficiaries.

The right of action for a wrongful death, with all its incidents, passes to the widow and children or the personal representative, and the suit must be treated as if the injured party had brought it. Haley v. Mobile & O. R. Co., 66 Tenn. 239, 1874 Tenn. LEXIS 113 (1874); Lougue v. Memphis & C. R. Co., 91 Tenn. 458, 19 S.W. 430 (1892); Whaley v. Catlett, 103 Tenn. 347, 53 S.W. 131, 1899 Tenn. LEXIS 115 (1899). See Louisville & N. R. Co. v. Herb, 125 Tenn. 408, 143 S.W. 1138, 1911 Tenn. LEXIS 36 (1911).

The action will not lie for the benefit of the estate or creditors, nor for the benefit of the state. Railway Co. v. Lilly, 90 Tenn. 563, 18 S.W. 243, 1891 Tenn. LEXIS 43 (1891); Louisville & N.R.R. v. Pitt, 91 Tenn. 86, 18 S.W. 118 (1892); Lougue v. Memphis & C. R. Co., 91 Tenn. 458, 19 S.W. 430 (1892); Louisville & N. R. Co. v. Beam, 94 Tenn. 388, 29 S.W. 370, 1894 Tenn. LEXIS 53 (1894); Daniel v. East Tennessee Coal Co., 105 Tenn. 470, 58 S.W. 859, 1900 Tenn. LEXIS 94 (1900).

Section 20-5-111 provides, in effect, that suits instituted for the benefit of those enumerated in this section shall not abate in the event of their death pending suit. The section was passed to meet the situation created by decisions construing this section to mean that suits abated where the beneficiary designated died while his suit was pending. Lones v. McFall, 152 Tenn. 239, 276 S.W. 866, 1925 Tenn. LEXIS 67 (1925). See also § 20-5-110 giving right of action to next of kin after the primary beneficiary, where latter dies before suit.

The right of recovery is dependent upon existence of beneficiaries designated by the statute. Hartman v. Duke, 160 Tenn. 134, 22 S.W.2d 221, 1929 Tenn. LEXIS 83 (1929).

In suit under this section, the administrator and deceased's estate are without pecuniary interest, the recovery passing at once to the statutory beneficiary free from claims of creditors of the estate. The statutory beneficiary is the real party in interest and must be disclosed during the suit. His contributory negligence can defeat the suit. Whitson v. Tennessee C. R. Co., 163 Tenn. 35, 40 S.W.2d 396, 1930 Tenn. LEXIS 136 (1931).

Neither the claim nor the recovery thereunder becomes a part of the estate of the deceased, and the personal representative as such has no interest in the recovery but is only a medium for enforcing the rights of others. Cummins v. Woody, 177 Tenn. 636, 152 S.W.2d 246, 1940 Tenn. LEXIS 62 (1941).

Fact that administratrix was not widow of decedent as alleged was immaterial since recovery is held for the real beneficiaries under the statute. Memphis S. R. Co. v. Cooper, 203 Tenn. 425, 313 S.W.2d 444, 1958 Tenn. LEXIS 321 (1958).

The proving of the existence of a widow, children or other next of kin is not for the purpose of increasing the damages but only to show the existence of the beneficiaries provided for in the statute. Memphis S. R. Co. v. Cooper, 203 Tenn. 425, 313 S.W.2d 444, 1958 Tenn. LEXIS 321 (1958).

Neither the claim nor the recovery thereunder becomes a part of the estate of the deceased and the personal representative has no interest in recovery but is only a medium for enforcing the rights of others. Memphis S. R. Co. v. Cooper, 203 Tenn. 425, 313 S.W.2d 444, 1958 Tenn. LEXIS 321 (1958).

In a suit brought under this section and §§ 20-5-107, 20-5-108 the administrator is without any pecuniary interest and the recovery, if any, passes to the statutory beneficiary. Memphis S. R. Co. v. Cooper, 203 Tenn. 425, 313 S.W.2d 444, 1958 Tenn. LEXIS 321 (1958).

Father who had abandoned minor child prior to death of child was entitled to share in proceeds of recovery for wrongful death of child. Anderson v. Anderson, 211 Tenn. 566, 366 S.W.2d 755, 1963 Tenn. LEXIS 381 (1963).

Although minor decedent had been in the care and custody of the minor's grandparents for seven years at the time of death, since there had been no adoption proceedings, only decedent's natural parents could recover in wrongful death action. In re Estate of Dobbins, 987 S.W.2d 30, 1998 Tenn. App. LEXIS 616 (Tenn. Ct. App. 1998).

Abandonment of decedent child by parents is not material in determining distribution of wrongful death proceeds. In re Estate of Dobbins, 987 S.W.2d 30, 1998 Tenn. App. LEXIS 616 (Tenn. Ct. App. 1998).

In a declaratory judgment case in which a jury found that the deceased did not die of her injuries, T.C.A. §§ 20-5-108 and 20-5-111 did not apply. Moreover, § 20-5-111 should be read in conjunction with T.C.A. § 20-5-112 and the purpose of the two statutes, read together, is to provide that causes of action vested or suits instituted to recover for wrongful death are not abated by the death of a beneficiary as enumerated in T.C.A. § 20-5-106, i.e., the widow and next of kin. Timmins v. Lindsey, 310 S.W.3d 834, 2009 Tenn. App. LEXIS 731 (Tenn. Ct. App. Oct. 28, 2009), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 238 (Tenn. Mar. 15, 2010).

According to decedent's mother, the statute created a conflict of interest between decedent's wife and daughter, who stood to inherit more wrongful death proceeds if the wife was disqualified from sharing in the estate, but it was unclear why a purported conflict would have any effect on this estate matter; no evidence was presented to support allegations of abandonment by the wife, and in absence of such proof, there was no conflict such that the appointment of the daughter's guardian was inappropriate. In re Estate of Edmonds, — S.W.3d —, 2019 Tenn. App. LEXIS 272 (Tenn. Ct. App. May 30, 2019).

27. —Common Disaster.

Where persons perish in the same disaster, there is no presumption of survivorship resting upon considerations of age, sex, strength, corpulency, or activity, and, in the absence of evidence from which survivorship can be determined, it will be presumed, for the purpose of settling rights and succession to property, and for determining who are entitled to the damages for the wrongful deaths of such persons, that all persons perishing in such disaster died at the same moment. Walton & Co. v. Burchel, 121 Tenn. 715, 121 S.W. 391, 1907 Tenn. LEXIS 34, 130 Am. St. Rep. 788 (1907).

Where a minor son perished at the same time with his father in a common disaster caused by the defendant's negligence, and left no widow and children, but left his mother, brothers, and sisters surviving him as his next of kin, the right of action for his wrongful death survived and passed to his personal representative for them. Walton & Co. v. Burchel, 121 Tenn. 715, 121 S.W. 391, 1907 Tenn. LEXIS 34, 130 Am. St. Rep. 788 (1907).

Where husband and wife were killed in plane crash and there was no evidence other than that they had died simultaneously, cause of action for wife's wrongful death passed to her next of kin as though she had survived the husband. Southeastern Aviation, Inc. v. Hurd, 209 Tenn. 639, 355 S.W.2d 436, 1962 Tenn. LEXIS 400 (1962), appeal dismissed, 371 U.S. 21, 83 S. Ct. 120, 9 L. Ed. 2d 96, 1962 U.S. LEXIS 389 (1962), dismissed, International Brotherhood, T. C. W. & H. v. Overnite Transp. Co., 9 L. Ed. 2d 100, 83 S. Ct. 120, 371 U.S. 862, 1962 U.S. LEXIS 2240 (1962).

28. —Widow.

Recovery in favor of widow for wrongful death of her husband is not affected or defeated by her divorce bill, for the suit, though in the name of the administrator, is the action of the husband brought by his administrator to recover the pecuniary value of his life, although the widow is the beneficiary of the suit, her husband having no children. Driver v. Arn, 6 Tenn. Civ. App. (6 Higgins) 582 (1916).

That the widow had been indiscreet or committed a crime does not affect her prior right to sue. Koontz v. Fleming, 17 Tenn. App. 1, 65 S.W.2d 821, 1933 Tenn. App. LEXIS 44 (Tenn. Ct. App. 1933).

Action by widow of deceased against bus company for wrongful death of husband could not be enjoined by father of deceased on ground that widow had been guilty of adulterous conduct prior to death of deceased. Johnson v. Morgan, 184 Tenn. 254, 198 S.W.2d 549, 1947 Tenn. LEXIS 372 (1947).

Employer's subrogation right under T.C.A. § 50-6-112(c) extended to the wrongful death recovery that a deceased employee's widow obtained in a products liability action filed by the employee in Georgia prior to his death; however, on remand, the trial court was to determine the portion of the recoveries attributable to the widow's loss of consortium claim to which the employer's subrogation right did not extend. Correll v. E.I. Dupont de Nemours & Co., 207 S.W.3d 751, 2006 Tenn. LEXIS 1001 (Tenn. 2006).

29. —Spouse.

An action for wrongful death against one spouse may be maintained when it is predicated upon an intentional tort to the other spouse during marriage, such act resulting in the termination of the marriage by death. Luna v. Clayton, 655 S.W.2d 893, 1983 Tenn. LEXIS 656 (Tenn. 1983).

Given the interpretation of T.C.A. § 20-5-106(c)(1) that the two-year period applied only to willful withdrawal, the trial court properly concluded that the two-year period of time included in that subsection did not apply to abandonment and that a surviving spouse lacked standing to bring the wrongful death suit. Baugh v. UPS, — S.W.3d —, 2015 Tenn. App. LEXIS 186 (Tenn. Ct. App. Mar. 31, 2015), review denied and ordered not published, — S.W.3d —, 2015 Tenn. LEXIS 656 (Tenn. Aug. 12, 2015).

Because the surviving spouse's right to recover wrongful death proceeds vested prior to the enactment of this section, it could not be applied retroactively. Spires v. Simpson, — S.W.3d —, 2016 Tenn. App. LEXIS 286 (Tenn. Ct. App. Apr. 26, 2016), modified, — S.W.3d —, 2017 Tenn. LEXIS 852 (Tenn. Dec. 27, 2017).

30. —Widower.

The right of action for wrongful death of a married woman survives for her surviving husband and descendants if any and, if none, to her next of kin, including a parent or collateral. Southeastern Aviation, Inc. v. Hurd, 209 Tenn. 639, 355 S.W.2d 436, 1962 Tenn. LEXIS 400 (1962), appeal dismissed, 371 U.S. 21, 83 S. Ct. 120, 9 L. Ed. 2d 96, 1962 U.S. LEXIS 389 (1962), dismissed, International Brotherhood, T. C. W. & H. v. Overnite Transp. Co., 9 L. Ed. 2d 100, 83 S. Ct. 120, 371 U.S. 862, 1962 U.S. LEXIS 2240 (1962).

31. —Minors.

An action for the wrongful killing of an infant may be maintained by his personal representative for the use of the statutory beneficiaries. Hall v. Nashville & C.R.R., 1 Shan. 141 (1859); Louisville & N. R. Co. v. Connor, 56 Tenn. 19, 1871 Tenn. LEXIS 423 (1871); Trafford v. Adams Express Co., 76 Tenn. 96, 1881 Tenn. LEXIS 14 (1881); Railway Co. v. Lilly, 90 Tenn. 563, 18 S.W. 243, 1891 Tenn. LEXIS 43 (1891).

A father or mother cannot, in his or her own name and without qualifying as the personal representative of the deceased, maintain an action and recover damages for the wrongful death of his or her infant child. Hall v. Nashville & C.R.R., 1 Shan. 141 (1859); Bamberger v. Citizens' S. R. Co., 95 Tenn. 18, 31 S.W. 163, 49 Am. St. Rep. 909, 1895 Tenn. LEXIS 61, 28 L.R.A. 486 (1895), criticized, Stewart v. Nashville, 96 Tenn. 50, 33 S.W. 613, 1895 Tenn. LEXIS 7 (1895); Holston v. Coal & Iron Co., 95 Tenn. 521, 32 S.W. 486, 1895 Tenn. LEXIS 125 (1895); Whitson v. Tennessee C. R. Co., 163 Tenn. 35, 40 S.W.2d 396, 1930 Tenn. LEXIS 136 (1931) (cases decided prior to 1932 Code).

Personal representative of infant may sue for wrongful killing of infant for benefit of the father, divorced from his wife, who had abandoned and failed to provide for the child. Heggie v. Barley, 5 Tenn. Civ. App. (5 Higgins) 78 (1914).

Mother and sister of a 13 year old child are beneficiaries of administrator's recovery. Anderson v. Memphis S. R. Co., 143 Tenn. 216, 227 S.W. 39, 1920 Tenn. LEXIS 9 (1920).

A father falsely representing age of son killed while employed illegally by defendant is precluded. International Agricultural Corp. v. Cobble, 146 Tenn. 120, 240 S.W. 295, 1921 Tenn. LEXIS 8 (1921); Highland Coal & Lumber Co. v. Cravens, 8 Tenn. App. 419, 1928 Tenn. App. LEXIS 155 (1928).

A parent has no right to sue individually for damages for injuries sustained by his minor daughter who has been wrongfully killed, though he is the sole beneficiary. But in suit erroneously begun by him, the summons is effective to bring defendant before the court; and, though administrator is not substituted until over a year after the injuries, the action is not barred. Whitson v. Tennessee C. R. Co., 163 Tenn. 35, 40 S.W.2d 396, 1930 Tenn. LEXIS 136 (1931) (decided prior to 1932 Code).

Right of action for wrongful death of boy 14 years of age, without wife or children, survived to his personal representative for the benefit of his father and mother, who are his next of kin, free from the claims of creditors. Davis v. Freels, 15 Tenn. App. 152, — S.W.2d —, 1932 Tenn. App. LEXIS 83 (Tenn. Ct. App. 1932).

Since 1932 Code, father had right to institute suit in his own name as next of kin of the deceased child, or he could institute suit in the name of the administrator for his use and benefit. Cummins v. Woody, 177 Tenn. 636, 152 S.W.2d 246, 1940 Tenn. LEXIS 62 (1941).

Administrator of unemancipated minor could maintain suit against unemancipated minor brother of deceased for wrongful death arising out of automobile accident involving automobile in which surviving brother was driving even though both minors were living with parents and recovery would pass to parents as next of kin. Herrell v. Haney, 207 Tenn. 532, 341 S.W.2d 574, 1960 Tenn. LEXIS 489 (1960).

Surviving children possess jointly any right-of-action for wrongful death of father and all are indispensable parties to such action. Williams v. Baxter, 536 F. Supp. 13, 1981 U.S. Dist. LEXIS 17409 (E.D. Tenn. 1981).

32. — —Illegitimate Children.

An illegitimate child may not bring an action for the wrongful death of his putative father even though the father has acknowledged the child. Dilworth v. Tisdale Transfer & Storage Co., 209 Tenn. 449, 354 S.W.2d 261, 1962 Tenn. LEXIS 376 (1962).

33. — —Loss of Services.

Recovery by father as administrator and beneficiary for wrongful death of his minor son bars subsequent action for loss of services and for expenses in a suit brought by him individually for loss of services, loss of time and expenses between the date of the injury and the death of the son, for it was incumbent upon him to bring forward, in his first suit, all the damages recoverable in such cases, because he was the sole beneficiary thereof. Tennessee Coal, Iron & R.R. v. Watts, 1 Tenn. Civ. App. (1 Higgins) 347 (1909); Chess-Wymond Co. v. Davis, 4 Tenn. Civ. App. (4 Higgins) 197 (1913).

Father is not entitled to separate action for loss of services, where child was instantly killed. Smith v. Tucker, 151 Tenn. 347, 270 S.W. 66, 1924 Tenn. LEXIS 68, 41 A.L.R. 830 (1925).

34. —Parents.

Divorce decree committed custody of child to mother to the exclusion of father within the meaning of § 31-201(4) (repealed), so as to entitle mother to entirety of proceeds from recovery from wrongful death of such child where decree committed custody of such child to mother with visitation rights to father. Damron v. Damron, 212 Tenn. 14, 367 S.W.2d 476, 1963 Tenn. LEXIS 394 (1963).

The adoptive mother of a minor, whose adoptive father predeceased him, is a legal beneficiary of such minor in an action for his wrongful death. Harmon v. Wolfe, 253 F. Supp. 577, 1965 U.S. Dist. LEXIS 6906 (E.D. Tenn. 1965).

Natural mother of decedent qualified as “next of kin” pursuant to this section and could maintain an action alleging that the decedent's death was brought about by the intentional act of the surviving spouse. House v. Gibson, 827 S.W.2d 310, 1991 Tenn. App. LEXIS 798 (Tenn. Ct. App. 1991), rehearing denied, — S.W.2d —, 1991 Tenn. App. LEXIS 861 (Tenn. Ct. App. 1991), appeal denied, 1992 Tenn. LEXIS 259 (Tenn. Mar. 16, 1992).

Mother, in bringing suit for the wrongful death of the decedent, was in effect acting as the decedent's legal representative, so diversity jurisdiction was lacking where the decedent, at the time of death, was a citizen of Tennessee. Yeubanks v. Methodist Healthcare Memphis Hosps., 227 F. Supp. 2d 934, 2002 U.S. Dist. LEXIS 20836 (W.D. Tenn. 2002).

35. —Next of Kin.

The next of kin for whose benefit the right of action survives are the real plaintiffs, and the administrator, though made a party plaintiff by the statute, is nevertheless a mere trustee and a nominal party. Sanders v. Louisville & N. R. Co., 111 F. 708, 1901 U.S. App. LEXIS 4421 (6th Cir. Tenn. 1901).

Where the deceased leaves no widow and no children surviving him, the right of action will pass to his personal representative for the benefit of his next of kin. Davidson Benedict Co. v. Severson, 109 Tenn. 572, 72 S.W. 967, 1902 Tenn. LEXIS 95 (1903), overruled, Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999); Davidson Benedict Co. v. Severson, 109 Tenn. 572, 72 S.W. 967, 1902 Tenn. LEXIS 95 (1903), overruled, Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999); Haynes v. Walker, 111 Tenn. 106, 76 S.W. 902, 1903 Tenn. LEXIS 7 (1903).

Where the cause of action for decedent's death arose in Mississippi, the fact that suit was brought in Tennessee by decedent's mother, instead of by his administrator, was immaterial, since under the Tennessee law, an administrator's relation to the beneficiaries is that of trustee only. Strait v. Yazoo & M. Valley R. Co., 209 F. 157, 1913 U.S. App. LEXIS 1765, 49 L.R.A. (n.s.) 1068 (6th Cir. Tenn. 1913).

Action against sheriff and sureties may be prosecuted by widow; not necessarily by administrator. State ex rel. Morris v. National Surety Co., 162 Tenn. 547, 39 S.W.2d 581, 1930 Tenn. LEXIS 122 (1931).

The evidence was sufficient to establish a valid marriage and the wife and children were the next of kin of the husband rather than the parents. Duggan v. Ogle, 25 Tenn. App. 467, 159 S.W.2d 834, 1941 Tenn. App. LEXIS 133 (Tenn. Ct. App. 1941).

Where this section prior to 1932 provided that the right of action should pass to the widow or children, as charged in the 1932 Code, the reservation is extended to the next of kin in the same category as the children. Cummins v. Woody, 177 Tenn. 636, 152 S.W.2d 246, 1940 Tenn. LEXIS 62 (1941).

Decedent's next of kin are entitled to any recovery in suit for wrongful death of decedent and as next of kin can maintain such suit. Gogan v. Jones, 197 Tenn. 436, 273 S.W.2d 700, 1954 Tenn. LEXIS 505 (1954).

The term “next of kin” properly denotes the persons nearest of kindred to the decedent by blood and follows the line of consanguinity. Sneed v. Henderson, 211 Tenn. 572, 366 S.W.2d 758, 1963 Tenn. LEXIS 496 (1963).

Where son, who was executor and only surviving child of a decedent, killed in a motor vehicle accident, settled claim for the alleged wrongful death of father, the plaintiffs who were surviving children of a deceased son, were barred from any further recovery, as the son of decedent had the prior right to file suit pursuant to this section, and having that right, he had the further right to settle claim. Whitley v. Georgia Western & Watkins Motor Lines, Inc., 299 F. Supp. 1238, 1969 U.S. Dist. LEXIS 8614 (E.D. Tenn. 1969).

In a wrongful death case, the Dead Man's Statue did not apply because the estate had no interest in the outcome; because a deceased patient had no surviving spouse, the interest in the litigation passed to his minor son. Although the action was brought in the name of the personal representative, it was brought on behalf of the next of kin. Choate ex rel. Clayton C. v. Vanderbilt Univ., — S.W.3d —, 2016 Tenn. App. LEXIS 39 (Tenn. Ct. App. Jan. 25, 2016).

36. —Nonresidents.

A nonresident widow whose husband was killed in this state may maintain action, although deceased husband was a nonresident. Chesapeake, O. & S. W. R. Co. v. Higgins, 85 Tenn. 620, 4 S.W. 47, 1887 Tenn. LEXIS 3 (1887).

37. Settlement.

A bona fide compromise and receipt of the fund and settlement by the widow, who discharges the wrongdoer from further liability, binds the next of kin. Holder v. Nashville, C. & St. L.R.R., 92 Tenn. 141, 20 S.W. 537, 1892 Tenn. LEXIS 58, 36 Am. St. Rep. 77 (1892).

In administrator's suit, the wrongdoer's prior settlement with decedent's next of kin and sole distributee was a bar. Barksdale v. Mobile & O.R.R., 3 Tenn. Civ. App. (3 Higgins) 620 (1913).

Widow, after waiving her right to administer, so that another qualified as administrator, nevertheless has the superior right to compromise and settle or to bring suit and she alone can attack for fraud a settlement obtained from her. Spitzer v. Knoxville Iron Co., 133 Tenn. 217, 180 S.W. 163, 1915 Tenn. LEXIS 87 (1915).

The right of widow to prosecute action ordinarily authorizes her to make a bona fide settlement by way of compromise. Jackson v. Dobbs, 154 Tenn. 602, 290 S.W. 402, 1926 Tenn. LEXIS 158 (1926).

Settlement made by widow of deceased employee under the Workers' Compensation Act, on behalf of herself and dependent children, bars a suit at law on account of the wrongful death of the deceased employee for all purposes and as to all beneficiaries. McCreary v. Nashville, C. & S. L. Ry., 161 Tenn. 691, 34 S.W.2d 210, 1930 Tenn. LEXIS 56 (1931).

A release executed by the sole beneficiary or the person having the exclusive right to the amount recovered bars an action by the personal representative to recover for wrongful death. Davis v. Freels, 15 Tenn. App. 152, — S.W.2d —, 1932 Tenn. App. LEXIS 83 (Tenn. Ct. App. 1932).

The attempted compromise settlement for the wrongful death of minor child by the administrator of child's estate was inoperative against the child's legal father who resided outside the state, and the trial court properly permitted the father to intervene in the suit within 30 days from the entering of the consent decree and properly granted a new trial. Cummins v. Woody, 177 Tenn. 636, 152 S.W.2d 246, 1940 Tenn. LEXIS 62 (1941).

An action by a father and son to recover for the death of their wife and mother was not barred by a compromise settlement made by the administrator of the wife's estate where it was shown that neither the father nor son received any part of the compromise settlement. Louisville & N. R. Co. v. Cantrell, 25 Tenn. App. 529, 160 S.W.2d 444, 1942 Tenn. App. LEXIS 19 (Tenn. Ct. App. 1942).

Widow was empowered under this section to maintain suit on behalf of herself and minor child against third parties for tort causing workman's death and could compromise such claims without suit and such compromise did not have to be postponed until final determination of the employer's liability under the Workers' Compensation Law. Millican v. Home Stores, Inc., 197 Tenn. 93, 270 S.W.2d 372, 1954 Tenn. LEXIS 458 (1954).

An administratrix who sued for her husband's death and consented to judgment under this section could not obtain a new trial since no mutual mistake or fraud was shown in the promptings of an insurer while she was still distressed and its obtaining of a nominal attorney for her. Lee v. Drabkin, 197 Tenn. 376, 273 S.W.2d 473, 1954 Tenn. LEXIS 497 (1954).

Former § 34-3-113 (repealed), relating to the compromise of claims involving infants or insane persons, is applicable to wrongful death suits; the personal representative, when suing on behalf of an infant, in a wrongful death action, has the same responsibility and duties as those conferred upon the parent, guardian or next friend of the infant. Busby v. Massey, 686 S.W.2d 60, 1984 Tenn. LEXIS 906 (Tenn. 1984).

An automobile insurer properly paid the limits of its liability under its policy's uninsured motorist coverage to the spouse of the insured who was killed in an automobile accident, without notifying any other potential beneficiary that settlement with the spouse had been effected. Spicer v. Hilliard, 879 S.W.2d 858, 1994 Tenn. App. LEXIS 89 (Tenn. Ct. App. 1994).

Wrongful death settlement proceeds were subject to a hospital lien because it had been held that T.C.A. § 20-5-106(a), exempting such proceeds from creditors'  claims, did not bar such attachment. Blackburn v. McGee, — S.W.3d —, 2014 Tenn. App. LEXIS 154 (Tenn. Ct. App. Mar. 17, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 477 (Tenn. June 20, 2014).

38. —Accord and Satisfaction.

Accord and satisfaction defense by railroad in suit by second administrator of deceased was sustained where second administrator failed to tender to railroad consideration of $150 paid first administrator in satisfaction of death claim, since tender by second administrator of consideration was a condition precedent to maintaining suit for wrongful death. Doten v. Southern R. Co., 32 F. Supp. 901, 1940 U.S. Dist. LEXIS 3233 (D. Tenn. 1940).

39. Recovery.

Sureties of administrator on his bond are liable for amount received by him as recovery. Patterson v. Tate, 141 Tenn. 607, 213 S.W. 981, 1919 Tenn. LEXIS 14 (1919).

Recovery in local court will pass according to the lex loci delictus. Hartman v. Duke, 160 Tenn. 134, 22 S.W.2d 221, 1929 Tenn. LEXIS 83 (1929).

The recovery for the wrongful death of deceased should not be appropriated to the payment of his debts as it is not an asset of his estate. Cunningham v. Hutcherson, 14 Tenn. App. 173, — S.W.2d —, 1931 Tenn. App. LEXIS 25 (Tenn. Ct. App. 1931).

Where joint tort-feasors are responsible for a wrongful death, the sum received by administrator from one under a covenant not to sue is not a satisfaction and does not reduce the amount recoverable against the other. Potts v. Leigh, 15 Tenn. App. 1, — S.W.2d —, 1931 Tenn. App. LEXIS 115 (Tenn. Ct. App. 1931).

The recovery is to be determined by a consideration of the life expectancy of the decedent, his age, condition of health, capacity for labor, and for earning money through skill in any art, trade, profession, occupation or business, and his personal habits as to sobriety and industry. Memphis S. R. Co. v. Cooper, 203 Tenn. 425, 313 S.W.2d 444, 1958 Tenn. LEXIS 321 (1958).

Proceeds of an action for wrongful death are personalty and the court will look to statutes on distribution of personalty as a guide. Dilworth v. Tisdale Transfer & Storage Co., 209 Tenn. 449, 354 S.W.2d 261, 1962 Tenn. LEXIS 376 (1962).

Recovery for wrongful death when realized becomes personal property and follows the distribution of such. Anderson v. Anderson, 211 Tenn. 566, 366 S.W.2d 755, 1963 Tenn. LEXIS 381 (1963).

The administrator of a decedent's estate is the real party in interest, as state statute authorizes him to prosecute an action for wrongful death in his own name and must be considered as such for determination of diversity of citizenship. Anderson v. Cecil, 407 F. Supp. 1354, 1975 U.S. Dist. LEXIS 14641 (E.D. Tenn. 1975).

40. —Investment of Proceeds.

Where a mother, receiving the proceeds of a claim invested same in land, takes title in her own name, which she afterwards mortgages to an innocent lender, the children may not assert rights therein. Smalling v. Kreech, 46 S.W. 1019, 1897 Tenn. Ch. App. LEXIS 120 (1897).

41. —Tax on Fund.

The right of action under this section and the fund derived therefrom are not subject to the inheritance tax imposed by § 30-1601 (now § 67-8-303). Commerce-Union Bank v. McCabe, 166 Tenn. 337, 61 S.W.2d 460, 1932 Tenn. LEXIS 137 (1933).

42. —Suit to Recover From Administrator.

An action by an alleged widow as sole heir of a decedent, to recover funds in the hands of the administrator received by him as damages for decedent's wrongful death, is subject to plea in abatement as premature, when brought within six months of the qualification of the administrator, notwithstanding this section, declaring that such recovery shall be for the benefit of the statutory beneficiaries of the suit. Bradford v. Graves, 167 Tenn. 125, 67 S.W.2d 138, 1933 Tenn. LEXIS 15 (1934).

43. Evidence.

The action of the administrator in a wrongful death case was not in his own right, but in the right of his decedent, and he had as much right to be protected against the erroneous admission of evidence as would the decedent if she had survived and brought the action herself. Winston v. Roe, 246 F. Supp. 246, 1965 U.S. Dist. LEXIS 7144 (E.D. Tenn. 1965).

There was material evidence that the injuries the decedent suffered did not ultimately cause the decedent's death, and thus the court affirmed the judgment for the nursing home on estate representatives' wrongful death claim under T.C.A. 20-5-106. Rolen v. Wood Presbyterian Home, Inc., 174 S.W.3d 158, 2005 Tenn. App. LEXIS 278 (Tenn. Ct. App. 2005), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 974 (Tenn. Oct. 24, 2005).

Government was properly granted summary judgment in the plaintiff’s wrongful death action brought under Tennessee law, as authorized by the Federal Tort Claims Act, arising out of the shooting death of her husband because an objectively reasonable officer armed with the agent’s knowledge and in the agent's position would have had probable cause to believe that the decedent, who was in an enclosed space holding a gun and refusing to submit to the officers’ show of force but, instead, began withdrawing the gun from its holster, posed the threat of serious physical harm to officers, and because the agent’s actions were reasonable, the agent was not negligent under Tennessee law. Evans v. United States, — F.3d —, 2018 FED App. 0172N, 2018 FED App. 172N, 2018 U.S. App. LEXIS 8376 (6th Cir. Apr. 3, 2018).

44. Pleadings.

Where plaintiff brought an action for wrongful death, but did not rely on the violation of any statute as the basis of her cause of action, it was not necessary to include an express reference to the wrongful death statutes in her complaint. Adams v. Carter County Memorial Hospital, 548 S.W.2d 307, 1977 Tenn. LEXIS 544 (Tenn. 1977).

45. Substitution of Parties.

Trial court improperly struck motion to substitute parties and dismissed wrongful death suit against a doctor because, pursuant to T.C.A. § 20-5-112, as the wrongful death action was brought while the beneficiary, the surviving spouse, was alive, the death of the beneficiary did not cause the action to abate; the surviving spouse's next of kin was his minor daughter, and a motion to substitute the daughter as the “real party” plaintiff, in place of her deceased father, was timely filed within 90 days of the suggestion of death pursuant to Tenn. R. Civ. P. 25.01. The amended motions filed later merely sought to have a guardian ad litem appointed as next friend of the daughter, and, all along, the goal was to have the daughter substituted for her deceased father. Holley v. Blackett, — S.W.3d —, 2012 Tenn. App. LEXIS 712 (Tenn. Ct. App. Oct. 10, 2012).

Trial court erred by dismissing the decedent's surviving spouse as a plaintiff and substituting the decedent's child's adoptive father as an intervening plaintiff because, although T.C.A. § 20-5-107(b) operated to prohibit the surviving spouse's recovery of his one-half of the settlement until his child support obligations were paid, it did not operate to disqualify him from commencing and maintaining the wrongful death action. Spires v. Simpson, — S.W.3d —, 2016 Tenn. App. LEXIS 286 (Tenn. Ct. App. Apr. 26, 2016), modified, — S.W.3d —, 2017 Tenn. LEXIS 852 (Tenn. Dec. 27, 2017).

When a trial court held that the decedent's claims passed automatically on the decedent's death from unrelated causes after the commencement of a medical malpractice action to the surviving spouse without need to substitute parties, remand was necessary because the court erroneously ruled—as the co-executors of the estate were the appropriate parties to revive the action—and was to determine whether the response to the health care providers'  motion to dismiss was to be construed as a motion for enlargement of time to substitute parties. Joshlin v. Halford, — S.W.3d —, 2019 Tenn. App. LEXIS 537 (Tenn. Ct. App. Nov. 6, 2019).

When a trial court held that the decedent's claims passed automatically on the decedent's death from unrelated causes after the commencement of a medical malpractice action to the surviving spouse without need to substitute parties, remand was necessary because the court erroneously ruled—as the co-executors of the estate were the appropriate parties to revive the action—and was to determine whether the response to the health care providers'  motion to dismiss was to be construed as a motion for enlargement of time to substitute parties. Joshlin v. Halford, — S.W.3d —, 2019 Tenn. App. LEXIS 537 (Tenn. Ct. App. Nov. 6, 2019).

Collateral References. 22 Am. Jur. 2d Death §§ 2-21, 28, 70.

1 C.J.S. Abatement and Revival §§ 166, 167; 25A C.J.S. Death §§ 24, 39.

Abortion, right of action for death of woman who consents to. 21 A.L.R.2d 369, 36 A.L.R.2d 630.

Action against parent by or on behalf of unemancipated minor child for wrongful death of other parent. 87 A.L.R.3d 849.

Action ex contractu for damages caused by death. 86 A.L.R.2d 316.

Action for death of adoptive parent, by or for benefit of adopted or equitably adopted child. 94 A.L.R.2d 1237, 97 A.L.R.3d 347.

Action for death of stepparent by or for benefit of stepchild. 68 A.L.R.3d 1220.

Admissibility, in wrongful death action brought for benefit of minor children, of evidence of decedent's desertion, nonsupport, abandonment, or the like of the children. 79 A.L.R.2d 819.

Admissibility, in wrongful death action for pecuniary loss suffered by next of kin, etc., of evidence as to decedent's personal qualities with respect to sobriety or morality. 99 A.L.R.2d 972.

Admissibility in wrongful death action of testimony of actuary or mathematician for purpose of establishing present worth of pecuniary loss. 79 A.L.R.2d 259.

Admissibility of evidence of, or propriety of comment as to, plaintiff-spouse's remarriage, or possibility thereof, in action for damages for death of other spouse. 88 A.L.R.3d 926.

Admission of liability as affecting admissibility of evidence as to the circumstances of accident on issue of damages in tort action for personal injury, wrongful death, or property damage. 80 A.L.R.2d 1224.

Adopted child, natural parent's right to recover for death of. 56 A.L.R. 1349.

Assault, exemplary damages for, as affected by death of party assaulted or assailant. 16 A.L.R. 792, 123 A.L.R. 1115.

Attorney's compensation for services in death action, amount of. 143 A.L.R. 841, 56 A.L.R.2d 13, 57 A.L.R.3d 475, 57 A.L.R.3d 550, 58 A.L.R.3d 317, 10 A.L.R.5th 448, 17 A.L.R.5th 366, 23 A.L.R.5th 241, 86 A.L.R. Fed. 866.

Brothers and sisters of deceased as beneficiaries within state wrongful death statute. 31 A.L.R.3d 379.

Carrier's liability for injury or death of infant passenger as affected by fact that child was in custody of parent or other adult. 74 A.L.R.3d 1171.

Child adopted by another as beneficiary of action or settlement for wrongful death of natural parent. 67 A.L.R.2d 745.

Civil liability for death by suicide. 11 A.L.R.2d 751, 58 A.L.R.3d 828.

Compensation from other sources as precluding recovery for death. 18 A.L.R. 678, 95 A.L.R. 575.

Competency of witness in wrongful death action as affected by dead man statute. 77 A.L.R.2d 676.

Contractual relationship as affecting right of action for death. 80 A.L.R. 880, 115 A.L.R. 1026.

Contributory negligence of beneficiary as affecting action under death or survival statute. 2 A.L.R.2d 785.

Contributory negligence of custodian of child as affecting right of parent to recover for its death or injury. 23 A.L.R. 655.

Contributory negligence of one or more of the beneficiaries in an action for death as affecting the rights of other beneficiaries who were not negligent. 30 A.L.R. 50, 88 A.L.R. 264, 2 A.L.R.2d 785.

Damages for wrongful death of husband as affected by prior abandonment. 18 A.L.R. 1409, 90 A.L.R. 920.

Death action by or in favor of parent against unemancipated child. 62 A.L.R.3d 1299.

Excessiveness or adequacy of damages awarded for injuries causing mental or psychological damages. 52 A.L.R.5th 1.

Excessiveness or adequacy of damages awarded for injuries to head or brain. 50 A.L.R.5th 1.

Excessiveness or adequacy of damages awarded for injuries to nerves or nervous system. 51 A.L.R.5th 467.

Excessiveness or adequacy of damages awarded for injuries to trunk or torso, or internal injuries. 48 A.L.R.5th 129.

Excessiveness or adequacy of damages awarded for personal injuries resulting in death of retired persons. 48 A.L.R.4th 229.

Fact that tortfeasor is member of class of beneficiaries as affecting right to maintain action for wrongful death. 95 A.L.R.2d 585.

Husband and wife, personal relations of, or marital misconduct of either spouse, as affecting action for death of spouse. 18 A.L.R. 1409, 90 A.L.R. 920.

Husband or his estate, action against, for causing death of wife, or vice versa. 28 A.L.R.2d 662.

Illegitimate child or children of decedent, right of recovery, under wrongful death statute, for benefit of. 72 A.L.R.2d 1235.

Judgment in wrongful death action as res judicata in subsequent action in same jurisdiction for same death under the same statute brought by or for the benefit of statutory beneficiary whose status as such was ignored in the former action. 148 A.L.R. 1346.

Liability for death of, or injury to, one seeking to rescue another. 19 A.L.R. 4, 158 A.L.R. 189, 166 A.L.R. 752, 73 A.L.R.4th 737.

Liability for injury or death of child in refrigerator. 86 A.L.R.2d 709.

Liability for prenatal injuries. 40 A.L.R.3d 1222.

Liability of consignee for personal injury or death of one other than his employee in connection with carrier unloading operations. 86 A.L.R.2d 1399.

Municipal corporation or other governmental unit as within the term “corporation,” “person,” or other term employed in death statute descriptive of party against whom action may be maintained. 115 A.L.R. 1287.

Participation in gambling activities as bar to action for personal injury or death. 77 A.L.R.2d 961.

Personal liability of policeman, sheriff, or other peace officer, or bond, for negligently causing personal injury or death. 60 A.L.R.2d 873.

Prejudicial effect of bringing to jury's attention fact that plaintiff in personal injury or death action is entitled to workmen's compensation benefits. 69 A.L.R.4th 131.

Propriety and prejudicial effect of reference by plaintiff's counsel, in jury trial of personal injuries or death action, to amount of damages claimed or expected by his client. 14 A.L.R.3d 541.

Recovery, in action for benefit of decedent's estate in jurisdiction which has both wrongful death and survival statutes, of value on earnings decedent would have made after death. 76 A.L.R.3d 125.

Release by, or judgment in favor of, person injured as barring action for his death. 39 A.L.R. 579.

Remarriage of surviving parent as affecting action for wrongful death of child. 69 A.L.R.3d 1038.

Retroactive effect of statute changing manner and method of distribution of recovery or settlement for wrongful death. 66 A.L.R.2d 1444.

Return or tender of consideration for release or compromise as condition of death action. 134 A.L.R. 17.

Right of illegitimate child, after Levy v. Louisiana, to recover under wrongful death statute for death of putative father. 78 A.L.R.3d 1230.

Right of parent who consents to or acquiesces in employment of child under statutory age to recover for latter's injury or death while in such employment. 23 A.L.R. 635.

Right of spouse to maintain action for wrongful death as affected by fact that injury resulting in death occurred before marriage. 69 A.L.R.3d 1046.

Right to maintain action or to recover damages for death of unborn child. 84 A.L.R.3d 411.

Survival of action or cause of action for wrongful death against representative of wrongdoer. 61 A.L.R. 830, 171 A.L.R. 1392.

Survival of cause of action for death against tort-feasor killed in same accident. 70 A.L.R. 1319.

Surviving parent's remarriage as affecting action for wrongful death of child. 69 A.L.R.3d 1038.

Tort-feasor's death before death of injured person as precluding action for death. 112 A.L.R. 343.

Validity of exception for specific kind of tort action in survival statute. 77 A.L.R.3d 1349.

Death 10.

20-5-107. Prosecution of action by representative or surviving spouse or next of kin.

  1. The action may be instituted by the personal representative of the deceased or by the surviving spouse in the surviving spouse's own name, or, if there is no surviving spouse, by the children of the deceased or by the next of kin; also, without the consent of the personal representative, either may use the personal representative's name in bringing and prosecuting the suit, on giving bond and security for costs, or in the form prescribed for paupers. The personal representative shall not, in such case, be responsible for costs, unless the personal representative signs the prosecution bond in an individual capacity.
  2. In no event shall a parent be permitted to recover through an action commenced pursuant to subsection (a) until all child support arrearages, together with interest on the child support arrearages, at the legal rate of interest computed from the date each payment was due, have been paid in full to the parent ordered to receive the support or to the parent's estate if deceased.
  3. Notwithstanding any law to the contrary, a parent who has intentionally refused or neglected to pay any support for a child for a two-year period, or for the life of the child, whichever is less, when subject to a court order requiring the payment of child support and who has intentionally refused or neglected to contact the child or exercise visitation during such period, shall not be permitted to recover through an action commenced pursuant to subsection (a) and § 20-5-106.
  4. Nothing in this section shall be construed to prevent the institution of an action by a child with respect to the death of a parent.
    1. Notwithstanding any other law to the contrary, the right to institute and the right to collect any proceeds from a wrongful death action granted by this section to a surviving spouse shall be waived, if the children or next of kin establish the surviving spouse has abandoned the deceased spouse as described in § 36-4-101(a)(13) or otherwise willfully withdrawn for a period of two (2) years.
    2. If the period of two (2) years has passed since the time of abandonment or willful withdrawal then there is created a rebuttable presumption that the surviving spouse abandoned the deceased spouse for purposes of this section.
    3. In an action under this section, the child or next of kin shall serve the surviving spouse with process as provided in the Tennessee Rules of Civil Procedure or by constructive service as may otherwise be provided by law.
    4. In no event shall any action for wrongful death abate, or the statute of limitations bar, an action solely as a result of a finding the surviving spouse's rights are waived. Instead the court shall substitute the proper party.

Code 1858, § 2292 (deriv. Acts 1849-1850, ch. 58, §§ 1, 2; 1851-1852, ch. 17); Acts 1871, ch. 78, § 2; Shan., § 4026; mod. Code 1932, § 8237; Acts 1975, ch. 284, § 2; T.C.A. (orig. ed.), § 20-608; Acts 1994, ch. 939, § 1; 2003, ch. 25, § 1; 2011, ch. 366, § 2.

Amendments. The 2011 amendment added (e).

Effective Dates. Acts 2011, ch. 366, § 4. May 30, 2011.

Cross-References. Substitution of parties, Tenn. R. Civ. P. Rule 25.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 637.

Tennessee Jurisprudence, 2 Tenn. Juris., Appeal and Error, § 50; 25 Tenn. Juris., Witnesses, § 10.

Law Reviews.

Professional Responsibility — Kline v. Eyrich: Use of the Common Fund Doctrine in Wrongful Death Actions in Tennessee: Preventing Unjust Enrichment or Simply Unjust?, 34 U. Mem. L. Rev. 233 (2003).

Torts — Hataway v. McKinley: Moving From Spacial Relationships to Significant Relationships, 23 Mem. St. U.L. Rev. 257 (1992).

Cited: Stewart v. Crook Sanatorium, 17 Tenn. App. 589, 69 S.W.2d 259, 1933 Tenn. App. LEXIS 93 (Tenn. Ct. App. 1933); Caldwell v. Metcalfe, 458 F. Supp. 847, 1977 U.S. Dist. LEXIS 12616 (E.D. Tenn. 1977); Johnson v. Metropolitan Government of Nashville & Davidson County, 665 S.W.2d 717, 1984 Tenn. LEXIS 745 (Tenn. 1984); Mangrum v. Owens, 917 S.W.2d 244, 1995 Tenn. App. LEXIS 649 (Tenn. Ct. App. 1995); Alexander v. Beale St. Blues Co., 108 F. Supp. 2d 934, 1999 U.S. Dist. LEXIS 22251 (W.D. Tenn. 1999); Foster v. St. Joseph Hosp., 158 S.W.3d 418, 2004 Tenn. App. LEXIS 491 (Tenn. Ct. App. 2004); Holliman v. McGrew, 343 S.W.3d 68, 2009 Tenn. App. LEXIS 58 (Tenn. Ct. App. Feb. 5, 2009); Taylor v. Lakeside Behavioral Health Sys., — S.W.3d —, 2010 Tenn. App. LEXIS 198 (Tenn. Ct. App. Mar. 15, 2010); Givens v. Josovitz, 343 S.W.3d 76, 2010 Tenn. App. LEXIS 705 (Tenn. Ct. App. Nov. 9, 2010).

NOTES TO DECISIONS

1. Construction.

All of the wrongful death statutes must be construed with reference to one another. Foster v. Jeffers, 813 S.W.2d 449, 1991 Tenn. App. LEXIS 8 (Tenn. Ct. App. 1991), appeal denied, 1991 Tenn. LEXIS 113 (Tenn. Mar. 18, 1991), appeal denied, 1991 Tenn. LEXIS 183 (Tenn. May 6, 1991).

T.C.A. §§ 20-5-107(b) and 31-2-105(b) apply where a child has died, the parents are separated or divorced, and one parent owes the other child support for the decedent child because they bar the obligor parent from benefitting from the wrongful death of a child whom he or she failed to financially support; legislative intent requires the obligor parent to satisfy his or her child support debt to the other parent before he or she is permitted to benefit from the death of that child. Spires v. Simpson, — S.W.3d —, 2017 Tenn. LEXIS 852 (Tenn. Dec. 27, 2017).

Prohibitions in T.C.A. §§ 20-5-107(b) and 31-2-105(b) apply only when (1) the “parent” who seeks to recover in the wrongful death lawsuit is a parent of the decedent child, and (2) that parent's child support arrearage is owed for the support of that decedent child. Spires v. Simpson, — S.W.3d —, 2017 Tenn. LEXIS 852 (Tenn. Dec. 27, 2017).

Court of appeals erred in ordering that a father's recovery from a wrongful death action be paid toward satisfaction of his child support arrearages for his children who were unrelated to the decedent spouse because the statute was inapplicable since the father was the surviving spouse of the decedent; the term “parent” as used in subsection (b) is limited to a parent of the decedent child who owes a child support arrearage for the support of that decedent child. Spires v. Simpson, — S.W.3d —, 2017 Tenn. LEXIS 852 (Tenn. Dec. 27, 2017).

T.C.A. §§ 20-5-107(b) and 31-2-105(b) apply only to a “parent” of the decedent child, and the child support arrearage must be owed for the support of that decedent child; reading “parent” as the parent of the decedent is consistent with other sections that describe a person's rights and remedies in terms of how they are related to the decedent, and given other relational terms always refer to relatives of the decedent, it is consistent to construe “parent” as the parent of the decedent. Spires v. Simpson, — S.W.3d —, 2017 Tenn. LEXIS 852 (Tenn. Dec. 27, 2017).

2. Widow's Right of Action.

The widow's right of action is superior to that of the administrator, and he cannot sue until the widow waives her right of action. Koontz v. Fleming, 17 Tenn. App. 1, 65 S.W.2d 821, 1933 Tenn. App. LEXIS 44 (Tenn. Ct. App. 1933).

Despite surviving spouse's priority to assert a wrongful death action, the surviving spouse and the decedent's children stand on equal footing with respect to each other; therefore, the common fund doctrine is applicable and entitles a trial court to award the surviving spouse's attorney, but not the children's attorney, contingency fees from the settlement proceeds. Kline ex rel. Kline v. Eyrich, 69 S.W.3d 197, 2002 Tenn. LEXIS 87 (Tenn. 2002).

While the statute allows the surviving spouse or next of kin to “institute” the wrongful death action on behalf of the decedent, the statute does not authorize the individual to practice law while doing so. Beard v. Branson, — S.W.3d —, 2016 Tenn. App. LEXIS 233 (Tenn. Ct. App. Mar. 31, 2016), rehearing denied, — S.W.3d —, 2016 Tenn. App. LEXIS 287 (Tenn. Ct. App. Apr. 26, 2016), rev'd, 528 S.W.3d 487, 2017 Tenn. LEXIS 540 (Tenn. Aug. 30, 2017).

Because a surviving spouse's pro se wrongful death complaint asserted claims on behalf of another individual and was not signed by a licensed attorney, the filing of that complaint was a nullity; the surviving spouse was not a licensed attorney and could not file a valid complaint that asserted claims on behalf of another individual without it being signed by a licensed attorney, and since the complaint was a nullity and had no legal effect, it did not operate to toll the statute of limitations. Beard v. Branson, — S.W.3d —, 2016 Tenn. App. LEXIS 233 (Tenn. Ct. App. Mar. 31, 2016), rehearing denied, — S.W.3d —, 2016 Tenn. App. LEXIS 287 (Tenn. Ct. App. Apr. 26, 2016), rev'd, 528 S.W.3d 487, 2017 Tenn. LEXIS 540 (Tenn. Aug. 30, 2017).

3. —Widow as Trustee.

The widow is not entitled to the whole fund received by her as administratrix, but it goes to her and the children in equal parts. Throgmorton v. Oliver, 144 Tenn. 282, 230 S.W. 967, 1921 Tenn. LEXIS 37 (1921).

Widow, recovering, is a trustee, and the trust is enforceable in action at law upon implied contract, which action is subject to the statute of limitations. Powell v. Blake, 161 Tenn. 516, 33 S.W.2d 78, 1930 Tenn. LEXIS 37 (1930).

4. —Waiver by Widow.

Failure to bring suit until seven months after the decedent's death when § 28-3-104 allowed 12 months was not such delay as to constitute a waiver of her right of action by the widow. Koontz v. Fleming, 17 Tenn. App. 1, 65 S.W.2d 821, 1933 Tenn. App. LEXIS 44 (Tenn. Ct. App. 1933).

The alleged tort-feasor in a wrongful death action by the administrator is competent to raise the question of the widow's superior right of action. Koontz v. Fleming, 17 Tenn. App. 1, 65 S.W.2d 821, 1933 Tenn. App. LEXIS 44 (Tenn. Ct. App. 1933).

The widow may waive her right of action by allowing the administrator's suit to stand without objection. Koontz v. Fleming, 17 Tenn. App. 1, 65 S.W.2d 821, 1933 Tenn. App. LEXIS 44 (Tenn. Ct. App. 1933).

5. Administrator's Right of Action.

Fact that administratrix was not widow of decedent as alleged was immaterial since recovery is held for real beneficiaries. Memphis S. R. Co. v. Cooper, 203 Tenn. 425, 313 S.W.2d 444, 1958 Tenn. LEXIS 321 (1958).

Administrator's motion to intervene pursuant to Fed. R. Civ. P. 24(a) was denied because, under T.C.A. § 20-5-106(a) and T.C.A. § 20-5-107(a), the administrator had no interest in the action because he had no interest in the recovery; the administrator was only a medium for enforcement of the rights of the beneficiaries of the deceased son, who had already initiated the wrongful death action. Martin v. Corr. Corp. of Am., 231 F.R.D. 532, 2005 U.S. Dist. LEXIS 29566 (W.D. Tenn. 2005).

6. —Administrator as Trustee.

The father of a decedent leaving no widow or children, as administrator of his estate, is entitled to recover the damages for the wrongful death of his intestate, caused by the defendant's negligence, although there may be beneficiaries other than the father, for the administrator recovers as trustee for the real beneficiaries under the statute, and must account to them, whoever they may be, for the proceeds of the judgment. Tennessee C. R. Co. v. Brown, 125 Tenn. 351, 143 S.W. 1129, 1911 Tenn. LEXIS 32 (1911).

The mother and sister of a 13 year old decedent are the beneficiaries of a judgment recovered, by his administrator, for his death. Anderson v. Memphis S. R. Co., 143 Tenn. 216, 227 S.W. 39, 1920 Tenn. LEXIS 9 (1920).

An administrator, recovering for wrongful death, is not the express trustee for a child. Jackson v. Dobbs, 154 Tenn. 602, 290 S.W. 402, 1926 Tenn. LEXIS 158 (1926).

The attempted compromise settlement for the wrongful death of minor child by the administrator of child's estate was inoperative against the child's legal father who resided outside the state, and the trial court properly permitted the father to intervene in the suit within 30 days from the entering of the consent decree and properly granted a new trial. Cummins v. Woody, 177 Tenn. 636, 152 S.W.2d 246, 1940 Tenn. LEXIS 62 (1941).

The one who sues as administrator and recovers damages for the wrongful death of the decedent holds the recovery as trustee for the real beneficiaries under the statute and must account to them, whoever they may be, for the proceeds of the judgment. Memphis S. R. Co. v. Cooper, 203 Tenn. 425, 313 S.W.2d 444, 1958 Tenn. LEXIS 321 (1958).

7. —Settlement by Prior Administrator.

Accord and satisfaction defense by railroad in suit by second administrator of deceased was sustained where second administrator failed to tender to railroad consideration of $150 paid first administrator in satisfaction of death claim, since tender by second administrator of consideration was a condition precedent to maintaining suit for wrongful death. Doten v. Southern R. Co., 32 F. Supp. 901, 1940 U.S. Dist. LEXIS 3233 (D. Tenn. 1940).

8. —Liability for Proceeds.

The sureties on the administration bond are liable to the extent of the penalty of the bond for the money collected by the personal representative as damages resulting from the death of the decedent, although the administrator was permitted by the next of kin to retain the money until certain debts of the intestate, for which the fund was not legally liable, were paid out of it; but a credit will be allowed for the debts thus paid. Glass v. Howell, 70 Tenn. 50, 1878 Tenn. LEXIS 187 (1878); Patterson v. Tate, 141 Tenn. 607, 213 S.W. 981, 1919 Tenn. LEXIS 14 (1919).

9. Beneficiaries.

Before there can be a recovery, there must be a legal beneficiary, and the suit must be brought for his or her benefit. Western & A. R. Co. v. Hughes, 8 F.2d 835, 1925 U.S. App. LEXIS 3378 (6th Cir. Tenn. 1925).

The right of recovery is dependent upon the existence of beneficiaries designated by the statute. Hartman v. Duke, 160 Tenn. 134, 22 S.W.2d 221, 1929 Tenn. LEXIS 83 (1929).

10. —Allegation of Beneficiaries.

The declaration must aver that the deceased left a husband, widow, children, or next of kin to take the benefit of the recovery, otherwise it states no cause of action, and is fatally defective. Louisville & N.R.R. v. Pitt, 91 Tenn. 86, 18 S.W. 118 (1892); Louisville & N. R. Co. v. Beam, 94 Tenn. 388, 29 S.W. 370, 1894 Tenn. LEXIS 53 (1894); Atlanta, K. & N. R. Co. v. Hooper, 92 F. 820, 1899 U.S. App. LEXIS 2193 (6th Cir. Tenn. 1899); Sanders v. Louisville & N. R. Co., 111 F. 708, 1901 U.S. App. LEXIS 4421 (6th Cir. Tenn. 1901); Love v. Southern R. Co., 108 Tenn. 104, 65 S.W. 475, 1901 Tenn. LEXIS 13, 55 L.R.A. 471 (1901); Southern R.R. v. Maxwell, 113 Tenn. 464, 82 S.W. 1137, 1904 Tenn. LEXIS 37 (1904); Tennessee C. R. Co. v. Brown, 125 Tenn. 351, 143 S.W. 1129, 1911 Tenn. LEXIS 32 (1911); Hale v. Johnston, 140 Tenn. 182, 203 S.W. 949, 1918 Tenn. LEXIS 33 (1918), overruled in part, Bowers v. Chattanooga, 1991 Tenn. LEXIS 485 (1991), overruled, Bowers v. City of Chattanooga, 826 S.W.2d 427, 1992 Tenn. LEXIS 131 (1992), questioned, Harris v. Williamson County, 835 S.W.2d 588, 1992 Tenn. App. LEXIS 46 (1992).

The declaration must aver the existence of a beneficiary or beneficiaries of one of the classes for whose use the action is preserved, and must state their names, and that the action is brought for their use. In the absence of such averments, a demurrer to the declaration, or a motion in arrest of judgment, will be sustained, unless the omission be cured by proper and reasonable amendment. Atlanta, K. & N. R. Co. v. Hooper, 92 F. 820, 1899 U.S. App. LEXIS 2193 (6th Cir. Tenn. 1899); Tennessee C. R. Co. v. Brown, 125 Tenn. 351, 143 S.W. 1129, 1911 Tenn. LEXIS 32 (1911).

11. —Allegation as to Pecuniary Loss.

There should be averment of the pecuniary losses which plaintiff expects to prove. Nashville, C. & S. L. R. Co. v. Anderson, 134 Tenn. 666, 185 S.W. 677, 1915 Tenn. LEXIS 187, L.R.A. (n.s.) 1918C1115 (1916).

12. —Amendments.

The declaration may be amended as to the beneficiaries after motion in arrest of judgment, or after the entry of judgment, where the ends of justice require it, as where the defect is supplied by the proof; and to prevent a failure of justice, the amendment may be allowed in the Supreme Court. If the matter of the amendment is controverted in a proper manner, a new trial may be granted. Tennessee C. R. Co. v. Brown, 125 Tenn. 351, 143 S.W. 1129, 1911 Tenn. LEXIS 32 (1911).

In an action by the administrator the court could after verdict allow amendment of the complaint to show that the action was for the use and benefit of the surviving spouse and children of the decedent. Kingsport Utilities, Inc. v. Mort, 2 Tenn. App. 270, — S.W. —, 1925 Tenn. App. LEXIS 105 (Tenn. Ct. App. 1925).

In action by father as next of kin for wrongful death of minor son father could amend complaint so as to include mother of deceased as party plaintiff and amendment would relate back to time of filing original action, since cause of action would not be changed by adding party plaintiff; and this was so even though suit by mother would have been barred by statute of limitations. Mosier v. Lucas, 30 Tenn. App. 498, 207 S.W.2d 1021, 1947 Tenn. App. LEXIS 107 (Tenn. Ct. App. 1947).

13. —Proof.

It is necessary to prove the existence of a widow, children, or other next of kin of the deceased, not for the purpose of increasing the damages, but only to show the existence of the beneficiaries provided for in the statute. Collins v. East T., V. & G. R. Co., 56 Tenn. 841, 1872 Tenn. LEXIS 212 (1872); Railway Co. v. Lilly, 90 Tenn. 563, 18 S.W. 243, 1891 Tenn. LEXIS 43 (1891); Louisville & N.R.R. v. Pitt, 91 Tenn. 86, 18 S.W. 118 (1892); Illinois Cent. R.R. v. Davis, 104 Tenn. 442, 58 S.W. 296, 1900 Tenn. LEXIS 15 (1900); Freeman v. Illinois Cent. R.R., 107 Tenn. 340, 64 S.W. 1, 1901 Tenn. LEXIS 82 (1901); Love v. Southern R. Co., 108 Tenn. 104, 65 S.W. 475, 1901 Tenn. LEXIS 13, 55 L.R.A. 471 (1901); Davidson Benedict Co. v. Severson, 109 Tenn. 572, 72 S.W. 967, 1902 Tenn. LEXIS 95 (1903), overruled, Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999); Hale v. Johnston, 140 Tenn. 182, 203 S.W. 949, 1918 Tenn. LEXIS 33 (1918), overruled in part, Bowers v. Chattanooga, 1991 Tenn. LEXIS 485 (1991), overruled, Bowers v. City of Chattanooga, 826 S.W.2d 427, 1992 Tenn. LEXIS 131 (1992), questioned, Harris v. Williamson County, 835 S.W.2d 588, 1992 Tenn. App. LEXIS 46 (1992).

The existence of a child or children may be proved where the declaration avers the existence of a widow only. Collins v. East T., V. & G. R. Co., 56 Tenn. 841, 1872 Tenn. LEXIS 212 (1872).

In a widow's action for the wrongful killing of her husband, evidence of the number, ages, and sex of the children of the deceased is admissible, though the declaration is silent as to the children. Spiro v. Felton, 73 F. 91, 1896 U.S. App. LEXIS 2615 (C.C.D. Tenn. 1896), rev'd, 78 F. 576, 1897 U.S. App. LEXIS 1697 (6th Cir. Tenn. 1897); Illinois Cent. R.R. v. Davis, 104 Tenn. 442, 58 S.W. 296, 1900 Tenn. LEXIS 15 (1900).

Where the declaration averred that there was no widow, no children, and no father, but that the mother, or brother, and a sister survived, there is no error in admitting evidence of the existence of the brother and sister. Freeman v. Illinois Cent. R.R., 107 Tenn. 340, 64 S.W. 1, 1901 Tenn. LEXIS 82 (1901).

14. — —Dependency.

There need be no testimony introduced for the purpose of showing that the widow, children, or next of kin were dependent for support or pecuniary aid upon the deceased in his lifetime. It is sufficient to prove the status of widow, child, or next of kin of the deceased as such. Davidson Benedict Co. v. Severson, 109 Tenn. 572, 72 S.W. 967, 1902 Tenn. LEXIS 95 (1903), overruled, Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999); Louisville & N. R. Co. v. Summers, 125 F. 719, 1903 U.S. App. LEXIS 4210 (6th Cir. Tenn. 1903), cert. denied, 192 U.S. 607, 24 S. Ct. 851, 48 L. Ed. 585, 1904 U.S. LEXIS 1001 (1904); Knoxville Ry. & Light Co. v. Davis, 3 Tenn. Civ. App. (3 Higgins) 522 (1912).

15. Settlement.

Former § 34-3-113, relating to the compromise of claims involving infants or insane persons, was applicable to wrongful death suits; the personal representative, when suing on behalf of an infant in a wrongful death action, has the same responsibility and duties as those conferred upon the parent, guardian or next friend of the infant. Busby v. Massey, 686 S.W.2d 60, 1984 Tenn. LEXIS 906 (Tenn. 1984).

16. Parties.

Children are not necessary parties. Collins v. East T., V. & G. R. Co., 56 Tenn. 841, 1872 Tenn. LEXIS 212 (1872).

In an action by a father for the death of his child, the divorced mother of the child was a necessary party plaintiff where the divorce decree contained no award of custody. Jamison v. Memphis Transit Management Co., 381 F.2d 670, 1967 U.S. App. LEXIS 5416 (6th Cir. Tenn. 1967).

Surviving children possess jointly any right-of-action for wrongful death of father and all are indispensable parties to such action. Williams v. Baxter, 536 F. Supp. 13, 1981 U.S. Dist. LEXIS 17409 (E.D. Tenn. 1981).

Court erred in dismissing a medical malpractice action where the original lawsuit was “commenced” for purposes of the savings statute, T.C.A. § 28-1-105, because, although it was filed outside the one-year statute of limitations in T.C.A. §§ 28-3-104 and 29-26-116, it was filed within one year of the order of voluntary non-suit, and it was filed in the name of the proper party plaintiff under T.C.A. § 20-5-107. Howell v. Claiborne & Hughes Health Ctr., — S.W.3d —, 2010 Tenn. App. LEXIS 400 (Tenn. Ct. App. June 24, 2010), overruled in part, Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 2012 Tenn. LEXIS 735 (Tenn. Oct. 4, 2012).

Surviving spouse never had an individual claim to assert because the wrongful death claims he asserted against a hospital were brought in a representative capacity on behalf of the decedent; the decedent's children did not have a separate claim but one indivisible cause of action existed, the cause of action the decedent would have had against the wrongdoer, and thus, the decedent's survivors were only permitted to assert the cause of action in a representative capacity on the decedent's behalf. Beard v. Branson, — S.W.3d —, 2016 Tenn. App. LEXIS 233 (Tenn. Ct. App. Mar. 31, 2016), rehearing denied, — S.W.3d —, 2016 Tenn. App. LEXIS 287 (Tenn. Ct. App. Apr. 26, 2016), rev'd, 528 S.W.3d 487, 2017 Tenn. LEXIS 540 (Tenn. Aug. 30, 2017).

Trial court did not err in denying relief, as the child failed to establish that the judgment in question was void; the trial court had jurisdiction to hear the grandmother's wrongful death complaint, and based on the pleadings, she appeared to have the right to file the wrongful death suit as next of kin and in the absence of a claim filed by the child under Tennessee's wrongful death statute. Hussey v. Woods, — S.W.3d —, 2017 Tenn. LEXIS 824 (Tenn. Dec. 18, 2017).

Court of appeals properly denied a decedent's brother relief because the statute became effective well after the decedent's accident, and subsection (e)(1)(2) could not be applied retroactively. Spires v. Simpson, — S.W.3d —, 2017 Tenn. LEXIS 852 (Tenn. Dec. 27, 2017).

Trial court erred in dismissing a daughter's wrongful death action against a decedent's husband on the ground that the husband, as the surviving spouse, was granted priority to prosecute the action because the husband's conduct was alleged to have caused the decedent's death, making him a potential wrongdoer; the husband had an inherent conflict, but his complaint did not name himself as a defendant nor include the allegation that he was a wrongdoer. Nelson v. Myres, — S.W.3d —, 2017 Tenn. App. LEXIS 29 (Tenn. Ct. App. Jan. 18, 2017).

Decedent's grandmother had standing to file a wrongful death action on his behalf against the county because she was authorized to do so by statute and there was no indication that the decedent had other beneficiaries who held a superior right to bring the action and objected to the grandmother doing so Haynes v. Wayne Cnty., — S.W.3d —, 2017 Tenn. App. LEXIS 249 (Tenn. Ct. App. Apr. 19, 2017).

16.5 Surviving Spouse.

Trial court erred by dismissing the decedent's surviving spouse as a plaintiff and substituting the decedent's child's adoptive father as an intervening plaintiff because, although this section operated to prohibit the surviving spouse's recovery of his one-half of the settlement until his child support obligations were paid, it did not operate to disqualify him from commencing and maintaining the wrongful death action. Spires v. Simpson, — S.W.3d —, 2016 Tenn. App. LEXIS 286 (Tenn. Ct. App. Apr. 26, 2016), modified, — S.W.3d —, 2017 Tenn. LEXIS 852 (Tenn. Dec. 27, 2017).

17. Priority in Prosecutions.

An adult beneficiary has priority over an administrator in prosecuting his or her own suit. Busby v. Massey, 686 S.W.2d 60, 1984 Tenn. LEXIS 906 (Tenn. 1984).

Absent a showing of bad faith, fraud, or other good cause, a suit commenced in good faith by the personal representative need not be subordinated to that of a guardian or next friend. Busby v. Massey, 686 S.W.2d 60, 1984 Tenn. LEXIS 906 (Tenn. 1984).

A court-appointed general guardian or next friend may sue for minors as provided in Tenn. R. Civ. P. 17.03, since a minor cannot maintain a suit in his own name; however, a general guardian or next friend does not have priority over an administrator in the prosecution of wrongful death actions on behalf of persons under disability. The minor is the real plaintiff, not the fiduciary in whose name he sues. Busby v. Massey, 686 S.W.2d 60, 1984 Tenn. LEXIS 906 (Tenn. 1984).

18. Pain and Suffering.

Cause of action against a physician for pain and suffering from his negligence does not survive in favor of the patient's widow or children, where such negligence did not result in the death of the one claimed to have been injured, and where there was no suit brought during his life therefor. Stewart v. Crook Sanatorium, 17 Tenn. App. 589, 69 S.W.2d 259, 1933 Tenn. App. LEXIS 93 (Tenn. Ct. App. 1933).

19. Damages.

When determining the amount of damages based upon life expectancy and earning capacity there should be a deduction of the deceased's probable living expenses had the deceased lived. Wallace v. Couch, 642 S.W.2d 141, 1982 Tenn. LEXIS 363 (Tenn. 1982).

Recovery is based upon the pecuniary value of the life of the deceased to be determined upon a consideration of the deceased's expectancy of life, age, condition of health and strength, capacity for labor and for earning money through skill in any art, trade, profession, and occupation or business. Thrailkill v. Patterson, 879 S.W.2d 836, 1994 Tenn. LEXIS 196 (Tenn. 1994).

In a wrongful death action filed by the decedent's mother, she was required to demonstrate damages with some material evidence; there was no material evidence that supported an economic damage award in excess of $651,231.72, and thus the appellate court remanded with a suggestion of remittitur in the amount of $598,768. Dunn v. Davis, — S.W.3d —, 2007 Tenn. App. LEXIS 120 (Tenn. Ct. App. Mar. 6, 2007).

Because the surviving spouse's right to recover wrongful death proceeds vested prior to the enactment of this section, it could not be applied retroactively. Spires v. Simpson, — S.W.3d —, 2016 Tenn. App. LEXIS 286 (Tenn. Ct. App. Apr. 26, 2016), modified, — S.W.3d —, 2017 Tenn. LEXIS 852 (Tenn. Dec. 27, 2017).

20. Evidence.

In suit filed by widow in name of administrator, who refused to sue, against defendant for killing of deceased the widow was competent to testify concerning killing which she saw but in which she had no part though at the time she was married to deceased, as reason for public policy did not exist under facts of the case. Hale v. Kearly, 67 Tenn. 49, 1874 Tenn. LEXIS 326 (1874).

The moral worth of the nominal plaintiff and ultimate beneficiary is totally unrelated to a wrongful death action as it is the right of action which the deceased would have had, had he survived. Tutor v. Bingham, 545 S.W.2d 944, 1976 Tenn. App. LEXIS 262 (Tenn. Ct. App. 1976).

The credibility of the nominal plaintiff, who was not a witness to the action and did not testify about it, was not an issue in the wrongful death action. Tutor v. Bingham, 545 S.W.2d 944, 1976 Tenn. App. LEXIS 262 (Tenn. Ct. App. 1976).

Collateral References. 22 Am. Jur. 2d Death §§ 2, 4, 7, 9, 55, 70, 194-202.

1 C.J.S. Abatement and Revival §§ 161, 162; 25A C.J.S. Death §§ 32, 57-62.

Action for death of stepparent by or for benefit of stepchild. 68 A.L.R.3d 1220.

Alien, nonresident, right to maintain action for wrongful death for benefit of. 138 A.L.R. 684.

Apportionment among beneficiaries of amount awarded by jury or received in settlement on account of wrongful death, as affected by death of distributee after judgment. 14 A.L.R. 538.

Award of custody of child to another as affecting parent's right to recover for death of minor child. 147 A.L.R. 482.

Beneficiary's right to bring action under death statute where executor or administrator, who by statute is the proper party to bring it, fails to do so. 101 A.L.R. 840.

Capacity of foreign domiciliary, or of ancillary, personal representative to maintain action for death, under statute of forum providing for action by personal representative. 52 A.L.R.2d 1048.

Capacity of local or foreign personal representative to maintain action for death under foreign statute providing for action by personal representative. 52 A.L.R.2d 1016.

Construction of application of provisions of death statute that makes the question whether action shall be brought by personal representative, or by beneficiary dependent upon existence or non-existence of cause of action in estate. 105 A.L.R. 834.

Death of beneficiary as affecting right of action under death statute. 13 A.L.R.4th 1060.

Disqualification of beneficiary of preferred class, effect of, upon right to sue in behalf of beneficiary of deferred class. 59 A.L.R. 747.

Effect of death of beneficiary, following wrongful death, upon damages. 73 A.L.R.4th 441.

Effect of existence of nearer related but nondependent member upon right to sue under death statute in behalf of remotely related but dependent member of same class. 162 A.L.R. 704.

Fact that tortfeasor is member of class of beneficiaries as affecting right to maintain action for wrongful death. 95 A.L.R.2d 585.

Judgment in favor of defendant in action by personal representative for damages to estate by injury resulting in death as bar to action in behalf of statutory beneficiaries. 64 A.L.R. 446.

Kind of verdict or judgment where administrator or executor, whose decedent was negligently killed, brings an action which combines a cause of action for benefit of estate and another for statutory beneficiaries. 124 A.L.R. 621.

Relationship of parent and child between tort-feasor and person by whom or for whose benefit death action is brought as affecting right to maintain action under death statute. 119 A.L.R. 1394.

Right of action for death where decedent left no next of kin or person within class of beneficiaries named in the statute creating the right of action. 117 A.L.R. 953.

Right of foreign domiciliary, or of ancillary, personal representative to maintain an action for death, under statute of forum which provides that action shall be brought by personal representative. 52 A.L.R.2d 1048.

Right of spouse to maintain action for wrongful death as affected by fact that injury resulting in death occurred before marriage. 69 A.L.R.3d 1046.

Substitution by amendment of plaintiff in action for wrongful death. 135 A.L.R. 352.

Time of bringing action, provision of death statute as to, as condition of right of action or mere statute of limitations. 67 A.L.R. 1070.

Wife of defendant, right to maintain death action where recovery will be for sole benefit. 96 A.L.R. 479.

Abatement and revival 72.

20-5-108. Continuation of decedent's action.

  1. If the deceased had commenced an action before the deceased's death, it shall proceed without necessity of revivor.
  2. The damages shall go to the surviving spouse and next of kin free from the claims of creditors.

Code 1858, § 2293; Shan., § 4028; mod. Code 1932, § 8238; Acts 1975, ch. 284, § 3; T.C.A. (orig. ed.), § 20-609.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 151, 638.

Tennessee Jurisprudence, 2 Tenn. Juris., Appeal and Error, § 31.

Law Reviews.

Some Order Out of Chaos in Wrongful Death Law (T. A. Smedley), 37 Vand. L. Rev. 273 (1984).

Cited: Stanford v. Holloway, 25 Tenn. App. 379, 157 S.W.2d 864, 1941 Tenn. App. LEXIS 120 (Tenn. Ct. App. 1941); Memphis S. R. Co. v. Cooper, 203 Tenn. 425, 313 S.W.2d 444, 1958 Tenn. LEXIS 321 (1958); Johnson v. Metropolitan Government of Nashville & Davidson County, 665 S.W.2d 717, 1984 Tenn. LEXIS 745 (Tenn. 1984).

NOTES TO DECISIONS

1. Construction.

All of the wrongful death statutes must be construed with reference to one another. Foster v. Jeffers, 813 S.W.2d 449, 1991 Tenn. App. LEXIS 8 (Tenn. Ct. App. 1991), appeal denied, 1991 Tenn. LEXIS 113 (Tenn. Mar. 18, 1991), appeal denied, 1991 Tenn. LEXIS 183 (Tenn. May 6, 1991).

2. Continuation of Suit Without Revivor.

An action for personal injuries commenced by the injured party does not abate by his death resulting from such injuries, but may be prosecuted to final judgment, in his name, without revivor, for the use of the widow and children or next of kin. Chambers v. Porter, 45 Tenn. 273, 1868 Tenn. LEXIS 9 (1868); Fowlkes v. Nashville & D. R. Co., 56 Tenn. 829, 1872 Tenn. LEXIS 211 (1872); Webb v. East Tenn., V. & G.R.R., 88 Tenn. 119, 12 S.W. 428, 1889 Tenn. LEXIS 36 (1889); Daniel v. East Tennessee Coal Co., 105 Tenn. 470, 58 S.W. 859, 1900 Tenn. LEXIS 94 (1900); Stuber v. Louisville & N. R. Co., 113 Tenn. 305, 87 S.W. 411, 1904 Tenn. LEXIS 28 (1904).

3. —Death From Injury.

Where injured person's suit proceeds without revivor after death, to justify a recovery, it must be shown that plaintiff died of the injury for which his suit was brought, and that he left a widow or next of kin. Daniel v. East Tennessee Coal Co., 105 Tenn. 470, 58 S.W. 859, 1900 Tenn. LEXIS 94 (1900); Davidson Benedict Co. v. Severson, 109 Tenn. 572, 72 S.W. 967, 1902 Tenn. LEXIS 95 (1903), overruled, Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999); Memphis St. Ry. v. Prince, 2 Tenn. Civ. App. (2 Higgins) 688 (1912).

4. Revivor of Suit.

Where the plaintiff dies from cause other than the injury sued for, and without widow or next of kin, the action cannot be prosecuted without revivor, and it seems that such action may be revived in the name of the personal representative, and prosecuted for the benefit of the plaintiff's estate, after his death. Daniel v. East Tennessee Coal Co., 105 Tenn. 470, 58 S.W. 859, 1900 Tenn. LEXIS 94 (1900); McDonald v. Nashville, 114 Tenn. 540, 86 S.W. 317, 1904 Tenn. LEXIS 109 (1904); Memphis St. Ry. v. Prince, 2 Tenn. Civ. App. (2 Higgins) 688 (1912).

Revivor of deceased plaintiff's suit is not authorized where either of the elements of death from wrongful act or existence of designated beneficiary are wanting. Stewart v. Crook Sanatorium, 17 Tenn. App. 589, 69 S.W.2d 259, 1933 Tenn. App. LEXIS 93 (Tenn. Ct. App. 1933).

5. —By Whom Filed.

The suit for personal injuries cannot be revived in the name of the heirs at law or next of kin of the deceased plaintiff, unless it is shown that no one will administer on the estate of the deceased. McDonald v. Nashville, 114 Tenn. 540, 86 S.W. 317, 1904 Tenn. LEXIS 109 (1904).

Where the injured party brought suit for personal injuries, and thereafter died from other supervening causes, the suit may be revived by the personal representative, during the trial and after a motion to dismiss the suit. Memphis St. Ry. v. Prince, 2 Tenn. Civ. App. (2 Higgins) 688 (1912).

An action for malpractice does not abate upon the plaintiff's death resulting from a cause other than such malpractice of the defendant; and the action may be revived in the name of the plaintiff's personal representative, but not in the name of his widow or next of kin. Burnett v. Layman, 130 Tenn. 423, 171 S.W. 76, 1914 Tenn. LEXIS 41 (1914); Burnett v. Layman, 133 Tenn. 323, 181 S.W. 157, 1915 Tenn. LEXIS 95 (1915).

6. Suit Filed After Death.

Where no suit was brought in decedent's lifetime, an action to recover damages for the use of the widow and minor children of decedent must be predicated upon the injuries sustained, which caused the death, and cannot be based upon physical pain and suffering of decedent caused by a trip to a hospital for the insane, in an ambulance, on being refused treatment at defendant's hospital. Stewart v. Crook Sanatorium, 17 Tenn. App. 589, 69 S.W.2d 259, 1933 Tenn. App. LEXIS 93 (Tenn. Ct. App. 1933).

If deceased received injuries at the hands of a wrongdoer, but which injuries did not produce death, and for which suit was not brought while living, the action could not survive in favor of the personal representative or of the widow and minor children. Stewart v. Crook Sanatorium, 17 Tenn. App. 589, 69 S.W.2d 259, 1933 Tenn. App. LEXIS 93 (Tenn. Ct. App. 1933).

7. Settlement by Injured Person.

Where the injured person in his lifetime compromised and settled his right of action, nothing will, upon his death, pass to his personal representative or beneficiaries under the statute, though his death results from such injuries. Trafford v. Adams Express Co., 76 Tenn. 96, 1881 Tenn. LEXIS 14 (1881); Brown v. Chattanooga E. R. Co., 101 Tenn. 252, 47 S.W. 415, 1898 Tenn. LEXIS 58, 70 Am. St. Rep. 666 (1898).

8. Assignment by Injured Person.

Where the injured person in his lifetime assigned the expected recovery for his personal injuries, the recovery obtained will inure to the benefit of the assignee, and nothing will pass upon his death to his personal representative or the beneficiaries under the statute. Trafford v. Adams Express Co., 76 Tenn. 96, 1881 Tenn. LEXIS 14 (1881) (dictum).

9. Abatement of Suit.

From a judgment abating an action for personal injuries on account of the plaintiff's death, and appeal or writ of error will lie, without revivor, in the name of the deceased plaintiff, upon a bond bearing his name, executed after his death. Daniel v. East Tennessee Coal Co., 105 Tenn. 470, 58 S.W. 859, 1900 Tenn. LEXIS 94 (1900).

A suit brought by the injured party may be abated at the third or any subsequent term of the court after the suggestion and proof or admission of the death of the plaintiff, where it is not affirmatively shown that the plaintiff died of the injuries for which he sued. McDonald v. Nashville, 114 Tenn. 540, 86 S.W. 317, 1904 Tenn. LEXIS 109 (1904).

10. Dismissal of Suit.

The suit of a husband for personal injuries wrongfully inflicted, upon his death, becomes the suit of his widow to all intents and purposes, without revivor; and upon dismissal of such suit, upon a ground not concluding the right of action, a new suit may be commenced by her within one year thereafter. Stuber v. Louisville & N. R. Co., 113 Tenn. 305, 87 S.W. 411, 1904 Tenn. LEXIS 28 (1904).

11. Judgment.

In an action for personal injuries prosecuted after the plaintiff's death resulting from such injuries, a form of verdict and judgment thereon, naming the widow and children as the beneficiaries, and pronouncing judgment in their favor in the name of the deceased plaintiff, is stated as made in the lower court, and seems to be approved by the Supreme Court. Chambers v. Porter, 45 Tenn. 273, 1868 Tenn. LEXIS 9 (1868).

12. Recovery.

The expenses incurred by a widow in supporting her children cannot be charged against their interest in the recovery obtained by the widow for the wrongful death of her husband. Throgmorton v. Oliver, 144 Tenn. 282, 230 S.W. 967, 1921 Tenn. LEXIS 37 (1921).

Damages recovered for a husband's death are not assets of his estate, proper; nor are same subject to widow's yearly allowance, nor for funeral expenses. Throgmorton v. Oliver, 144 Tenn. 282, 230 S.W. 967, 1921 Tenn. LEXIS 37 (1921); Powell v. Blake, 161 Tenn. 516, 33 S.W.2d 78, 1930 Tenn. LEXIS 37 (1930); Cunningham v. Hutcherson, 14 Tenn. App. 173, — S.W.2d —, 1931 Tenn. App. LEXIS 25 (Tenn. Ct. App. 1931).

13. —Distribution.

The fund recoverable for a wrongful death does not occupy the same status as the proceeds of a life insurance policy payable to the assured, which he may dispose of while he lives; but it passes by operation of the statutes, and according to their provisions. Haynes v. Walker, 111 Tenn. 106, 76 S.W. 902, 1903 Tenn. LEXIS 7 (1903).

The recovery for a wrongful death cannot pass under the will of the deceased. Haynes v. Walker, 111 Tenn. 106, 76 S.W. 902, 1903 Tenn. LEXIS 7 (1903).

Where the recovery of damages goes to the children of the decedent, the children of a deceased child of the decedent will take the share that their parent would have taken if alive. Haynes v. Walker, 111 Tenn. 106, 76 S.W. 902, 1903 Tenn. LEXIS 7 (1903).

Any recovery passes immediately to the statutory beneficiaries free from all claims of decedent's creditors. Whitson v. Tennessee C. R. Co., 163 Tenn. 35, 40 S.W.2d 396, 1930 Tenn. LEXIS 136 (1931).

Where the father and mother of a child were divorced and the exclusive custody of such child awarded to the mother the mother was entitled to the proceeds of a recovery for the wrongful death of such child to the exclusion of the father since such proceeds follow the usual course for the distribution of personalty and under the provisions of § 31-201 (repealed) the mother is entitled to distribution of the personal estate of the child to the exclusion of the father under the above circumstances. Black v. Roberts, 172 Tenn. 20, 108 S.W.2d 1097, 1937 Tenn. LEXIS 45 (1937).

The recovery from the wrongful death of a child while not an asset of her estate in the sense that it was liable for her debts or could pass under her will or in other respects be treated as a legal asset nevertheless is to be distributed as surplus personal property. Black v. Roberts, 172 Tenn. 20, 108 S.W.2d 1097, 1937 Tenn. LEXIS 45 (1937).

Recovery for wrongful death when realized becomes personal property and follows the distribution as such. Anderson v. Anderson, 211 Tenn. 566, 366 S.W.2d 755, 1963 Tenn. LEXIS 381 (1963).

Father who had abandoned minor child prior to death of child was entitled to share in proceeds of recovery for wrongful death of child. Anderson v. Anderson, 211 Tenn. 566, 366 S.W.2d 755, 1963 Tenn. LEXIS 381 (1963).

Divorce decree committed custody of child to mother to the exclusion of father within the meaning of § 31-201(4) (since repealed) so as to entitle mother to entirety of proceeds from recovery for wrongful death of such child where decree committed custody of such child with visitation rights to father. Damron v. Damron, 212 Tenn. 14, 367 S.W.2d 476, 1963 Tenn. LEXIS 394 (1963).

The father and mother are the next of kin of their deceased child and share equally in the distribution of proceeds of a wrongful death action, and mother is a necessary party plaintiff. Jamison v. Memphis Transit Management Co., 381 F.2d 670, 1967 U.S. App. LEXIS 5416 (6th Cir. Tenn. 1967).

Divorced father was entitled to share with his ex-wife in the proceeds of a judgment for the wrongful death of their minor daughter, subject to a lien on any funds recovered to satisfy any arrearage that may be owed as child support. Spurling v. Johnson, 747 S.W.2d 350, 1987 Tenn. App. LEXIS 3138 (Tenn. Ct. App. 1987).

14. — —Widow's Share.

A fund received by a widow, as administratrix for the wrongful death of her husband, is not subject to her year's support, for only the assets of a deceased husband going into the hands of his personal representative and subject to the payment of debts is subject to be appropriated to the year's support of the widow. Throgmorton v. Oliver, 144 Tenn. 282, 230 S.W. 967, 1921 Tenn. LEXIS 37 (1921); Powell v. Blake, 161 Tenn. 516, 33 S.W.2d 78, 1930 Tenn. LEXIS 37 (1930).

The widow is not entitled to the whole of the fund received by her as administratrix for the wrongful death of her husband, but such fund goes to her and the children in equal parts. Throgmorton v. Oliver, 144 Tenn. 282, 230 S.W. 967, 1921 Tenn. LEXIS 37 (1921); Powell v. Blake, 161 Tenn. 516, 33 S.W.2d 78, 1930 Tenn. LEXIS 37 (1930).

The widow's recovery is distributed as the personal estate of the deceased, free from the claims of creditors. Jackson v. Dobbs, 154 Tenn. 602, 290 S.W. 402, 1926 Tenn. LEXIS 158 (1926).

Action by a child for his distributable share brought against widow who received entire recovery must be brought within six years after he attains his majority, the widow not being an express trustee. Jackson v. Dobbs, 154 Tenn. 602, 290 S.W. 402, 1926 Tenn. LEXIS 158 (1926).

Widow, recovering judgment for wrongful death of husband, cannot rightfully appropriate children's portion to payment of husband's debts. Powell v. Blake, 161 Tenn. 516, 33 S.W.2d 78, 1930 Tenn. LEXIS 37 (1930).

15. Applicability.

In a declaratory judgment case in which a jury found that the deceased did not die of her injuries, T.C.A. §§ 20-5-108 and 20-5-111 did not apply. Moreover, § 20-5-111 should be read in conjunction with T.C.A. § 20-5-112 and the purpose of the two statutes, read together, is to provide that causes of action vested or suits instituted to recover for wrongful death are not abated by the death of a beneficiary as enumerated in T.C.A. § 20-5-106, i.e., the widow and next of kin. Timmins v. Lindsey, 310 S.W.3d 834, 2009 Tenn. App. LEXIS 731 (Tenn. Ct. App. Oct. 28, 2009), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 238 (Tenn. Mar. 15, 2010).

Collateral References. 22 Am. Jur. 2d Death §§ 90, 91.

1 C.J.S. Abatement and Revival §§ 138, 186; 25A C.J.S. Death § 40.

Judgment in death action as precluding subsequent personal injury action by potential beneficiary of death action, or vice versa. 94 A.L.R.3d 676.

Abatement and revival 71-77.

20-5-109. [Repealed.]

Compiler's Notes. Former § 20-5-109 (Acts 1897, ch. 86, § 1; Shan., § 4029a1; Code 1932, § 8241; T.C.A. (orig. ed.), § 20-610), concerning wrongful death of married women and succession to cause of action, was repealed by Acts 1985, ch. 140, § 1.

20-5-110. Action for death of spouse.

  1. A suit for the wrongful killing of the spouse may be brought in the name of the surviving spouse for the benefit of the surviving spouse and the children of the deceased, in the name of the administrator of the deceased spouse or in the name of the next of kin of the spouse.
  2. The surviving spouse may effect a bona fide compromise in such a suit or right of action and may execute a valid release that shall be binding upon all the children of the deceased or next of kin of the deceased.
    1. Notwithstanding any other law to the contrary, the right to institute and the right to collect any proceeds from a wrongful death action granted by this section to a surviving spouse shall be waived, if the children or next of kin establish the surviving spouse has abandoned the deceased spouse as described in § 36-4-101(a)(13) or otherwise willfully withdrawn for a period of two (2) years.
    2. If the period of two (2) years has passed since the time of abandonment or willful withdrawal then there is created a rebuttable presumption that the surviving spouse abandoned the deceased spouse for purposes of this section.
    3. In an action under this section, the child or next of kin shall serve the surviving spouse with process as provided in the Tennessee Rules of Civil Procedure or by constructive service as may otherwise be provided by law.
    4. A release entered into pursuant to this section by the surviving spouse shall be binding as provided in subsection (b), unless a copy of an order finding waiver of rights pursuant to this section was served or delivered to the released parties prior to the execution of the release or distribution of funds, whichever occurs first. However, a court of competent jurisdiction, upon motion of the children or next of kin, may grant injunctive relief after notice to the released parties and to the surviving spouse. The party or parties seeking the release shall not be required to answer or otherwise defend any such action.

Acts 1897, ch. 86, § 2; Shan., § 4029a2; mod. Code 1932, § 8239; Acts 1953, ch. 210, § 2; 1975, ch. 284, § 4; T.C.A. (orig. ed.), § 20-611; Acts 1981, ch. 250, § 1; 2011, ch. 366, § 3.

Amendments. The 2011 amendment added (c).

Effective Dates. Acts 2011, ch. 366, § 4. May 30, 2011.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 637.

Law Reviews.

Professional Responsibility — Kline v. Eyrich: Use of the Common Fund Doctrine in Wrongful Death Actions in Tennessee: Preventing Unjust Enrichment or Simply Unjust?, 34 U. Mem. L. Rev. 233 (2003).

Loss of filial consortium (John A. Day), 37 No. 5 Tenn. B.J. 26 (2001).

Wrongful Death in Tennessee — New Solutions to Recurring Problems, 9 Mem. St. U.L. Rev. 85.

Cited: Weathers v. Pilkinton, 754 S.W.2d 75, 1988 Tenn. App. LEXIS 119 (Tenn. Ct. App. 1988); Estate of Baker v. Maples, 995 S.W.2d 114, 1999 Tenn. App. LEXIS 33 (Tenn. Ct. App. 1999); Rains v. Bend of the River, 124 S.W.3d 580, 2003 Tenn. App. LEXIS 537 (Tenn. Ct. App. 2003); Bowman v. City of Memphis, 329 S.W.3d 766, 2010 Tenn. App. LEXIS 47 (Tenn. Ct. App. Jan. 27, 2010).

NOTES TO DECISIONS

1. Construction.

All of the wrongful death statutes must be construed with reference to one another. Foster v. Jeffers, 813 S.W.2d 449, 1991 Tenn. App. LEXIS 8 (Tenn. Ct. App. 1991), appeal denied, 1991 Tenn. LEXIS 113 (Tenn. Mar. 18, 1991), appeal denied, 1991 Tenn. LEXIS 183 (Tenn. May 6, 1991).

This section is a legislative designation of those permissibly enabled to maintain an action in their own name. House v. Gibson, 827 S.W.2d 310, 1991 Tenn. App. LEXIS 798 (Tenn. Ct. App. 1991), rehearing denied, — S.W.2d —, 1991 Tenn. App. LEXIS 861 (Tenn. Ct. App. 1991), appeal denied, 1992 Tenn. LEXIS 259 (Tenn. Mar. 16, 1992).

2. Death From Husband's Assault.

Administrator of wife may not maintain action for her death by reason of unlawful assault of her husband, since deceased had no statutory right of action. Wilson v. Barton, 153 Tenn. 250, 283 S.W. 71, 1925 Tenn. LEXIS 25 (1926).

3. Contributory Negligence of Husband.

In action to recover for wrongful death of wife and mother, the burden of proving contributory negligence of husband is upon defendant. Husband's contributory negligence cannot prejudice rights of minor children not at fault. Hines v. Partridge, 144 Tenn. 219, 231 S.W. 16, 1920 Tenn. LEXIS 75 (1921).

4. Measure of Damages.

The measure of damages was fully discussed, and it was ruled that the husband could recover nothing for loss of the moral aid, comfort, counsel and companionship of the wife. Knoxville Ry. & Light Co. v. Davis, 3 Tenn. Civ. App. (3 Higgins) 522 (1912).

Loss of consortium may be considered when calculating the pecuniary value of a deceased's life, and such losses are not limited to spousal claims but also necessarily encompass a child's loss, whether minor or adult. Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999).

Loss of consortium consists of several elements, encompassing not only tangible services provided by a family member, but also intangible benefits each family member receives from the continued existence of other family members, including attention, guidance, care, protection, training, companionship, cooperation, affection, love and in the case of a spouse, sexual relations. Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999).

Evidence did not preponderate against the award of $15,000 for a son's loss of consortium claim under T.C.A. § 20-5-113 as the evidence showed that the father had no earning capacity at the time of his death, that he likely would have died within two years due to his deteriorating mental and physical condition, that the father was not able to provide any financial help or parental advice, that the son was not dependent on the father in any way, and that the father was only able to visit his father once or twice every six months. In re Estate of Lehman, — S.W.3d —, 2012 Tenn. App. LEXIS 344 (Tenn. Ct. App. May 25, 2012).

Evidence preponderated against a trial court's award of only $20,000 for the pain and suffering of a son's father as the evidence showed that the father struggled to survive for nearly all of the 10 days of his hospitalization and that his dementia and other mental health problems made it difficult, if not impossible, for the father to comprehend why he was hospitalized, thereby exacerbating his confusion and agitation. In re Estate of Lehman, — S.W.3d —, 2012 Tenn. App. LEXIS 344 (Tenn. Ct. App. May 25, 2012).

5. Parties.

In action for wrongful death of wife and mother children were not necessary parties but were proper parties in suit by husband. Morrow v. Drumwright, 202 Tenn. 307, 304 S.W.2d 313, 1957 Tenn. LEXIS 392 (1957).

While husband as administrator was neither a proper nor necessary party with husband individually in action for death of wife it was harmless error where same issues would have been made. Morrow v. Drumwright, 202 Tenn. 307, 304 S.W.2d 313, 1957 Tenn. LEXIS 392 (1957).

Administrator of deceased married woman's estate has legal capacity to maintain wrongful death action on behalf of estate of decedent and may do so without joining with him the party for whose benefit the action is brought under Tennessee law and Federal Rules of Civil Procedure 12(b)(6), 17(a), and 21. Lamar v. Stowers, 52 F.R.D. 490, 1971 U.S. Dist. LEXIS 12339 (D. Tenn. 1971).

Surviving husband was a proper plaintiff in wrongful death action since the right of action is given first to the surviving spouse. Cline v. Richards, 455 F. Supp. 42, 1977 U.S. Dist. LEXIS 14404 (E.D. Tenn. 1977).

In a wrongful death action, where married deceased's parents had brought the action but the complaint was dismissed on the ground that the right of action, if any, passed to deceased's husband rather than to her parents, it was proper to allow substitution of deceased's husband as plaintiff in the action under Tenn. R. Civ. P. 17.01, even though the statute of limitations of one year had run prior to the filing of the motion for substitution, since the husband was the real party in interest and he made his application for substitution within a reasonable time after objection was made by defendants to the status of the original plaintiffs as real parties in interest. Chapman v. King, 572 S.W.2d 925, 1978 Tenn. LEXIS 666 (Tenn. 1978).

The right to bring an action for damages for the wrongful death of the deceased married woman belongs to her husband, and not her parents. Chapman v. King, 572 S.W.2d 925, 1978 Tenn. LEXIS 666 (Tenn. 1978).

Where two actions were filed for one death under this section they should have been consolidated and the proper plaintiff determined before proceeding to summary judgment which resulted from the confusion of the two actions. Matthews v. Mitchell, 705 S.W.2d 657, 1985 Tenn. App. LEXIS 3423 (Tenn. Ct. App. 1985).

The substitution of the administrator for an improper plaintiff was not error although the rightful party had a superior claim but did not object to the substitution. Matthews v. Mitchell, 705 S.W.2d 657, 1985 Tenn. App. LEXIS 3423 (Tenn. Ct. App. 1985).

Because the surviving spouse's right to recover wrongful death proceeds vested prior to the enactment of this section, it could not be applied retroactively. Spires v. Simpson, — S.W.3d —, 2016 Tenn. App. LEXIS 286 (Tenn. Ct. App. Apr. 26, 2016), modified, — S.W.3d —, 2017 Tenn. LEXIS 852 (Tenn. Dec. 27, 2017).

Court of appeals properly denied a decedent's brother relief because the statute became effective well after the decedent's accident, and subsection (c)(1)(2) could not be applied retroactively. Spires v. Simpson, — S.W.3d —, 2017 Tenn. LEXIS 852 (Tenn. Dec. 27, 2017).

Trial court erred in dismissing a daughter's wrongful death action against a decedent's husband on the ground that the husband, as the surviving spouse, was granted priority to prosecute the action because the husband's conduct was alleged to have caused the decedent's death, making him a potential wrongdoer; the husband had an inherent conflict, but his complaint did not name himself as a defendant nor include the allegation that he was a wrongdoer. Nelson v. Myres, — S.W.3d —, 2017 Tenn. App. LEXIS 29 (Tenn. Ct. App. Jan. 18, 2017).

6. Settlement.

Only person authorized to effect a settlement and give a valid release is the surviving husband and therefore release obtained by insurance company from husband as administrator was void. Morrow v. Drumwright, 202 Tenn. 307, 304 S.W.2d 313, 1957 Tenn. LEXIS 392 (1957).

An automobile insurer properly paid the limits of its liability under its policy's uninsured motorist coverage to the spouse of the insured who was killed in an automobile accident, without notifying any other potential beneficiary that settlement with the spouse had been effected. Spicer v. Hilliard, 879 S.W.2d 858, 1994 Tenn. App. LEXIS 89 (Tenn. Ct. App. 1994).

Postnuptial agreement, which included a waiver by both parties of their rights to the property of the other, was broad enough to encompass proceeds flowing from a wrongful death action filed on behalf of the decedent, such that the widow was not entitled to share in the wrongful death settlement. Rickman v. Rickman, — S.W.3d —, 2013 Tenn. App. LEXIS 683 (Tenn. Ct. App. Oct. 15, 2013).

7. Next of Kin.

The right of action for wrongful death of a married woman survives for her surviving husband and descendants if any and if none to her next of kin including a parent or collateral. Southeastern Aviation, Inc. v. Hurd, 209 Tenn. 639, 355 S.W.2d 436, 1962 Tenn. LEXIS 400 (1962), appeal dismissed, 371 U.S. 21, 83 S. Ct. 120, 9 L. Ed. 2d 96, 1962 U.S. LEXIS 389 (1962), dismissed, International Brotherhood, T. C. W. & H. v. Overnite Transp. Co., 9 L. Ed. 2d 100, 83 S. Ct. 120, 371 U.S. 862, 1962 U.S. LEXIS 2240 (1962).

Natural mother of decedent qualified as “next of kin” pursuant to § 20-5-106 and could maintain an action alleging that the decedent's death was brought about by the intentional act of the surviving spouse. House v. Gibson, 827 S.W.2d 310, 1991 Tenn. App. LEXIS 798 (Tenn. Ct. App. 1991), rehearing denied, — S.W.2d —, 1991 Tenn. App. LEXIS 861 (Tenn. Ct. App. 1991), appeal denied, 1992 Tenn. LEXIS 259 (Tenn. Mar. 16, 1992).

8. —Simultaneous Death.

Where husband and wife were killed in plane crash and there was no evidence other than that they had died simultaneously, cause of action for wife's wrongful death passed to her next of kin as though she had survived the husband. Southeastern Aviation, Inc. v. Hurd, 209 Tenn. 639, 355 S.W.2d 436, 1962 Tenn. LEXIS 400 (1962), appeal dismissed, 371 U.S. 21, 83 S. Ct. 120, 9 L. Ed. 2d 96, 1962 U.S. LEXIS 389 (1962), dismissed, International Brotherhood, T. C. W. & H. v. Overnite Transp. Co., 9 L. Ed. 2d 100, 83 S. Ct. 120, 371 U.S. 862, 1962 U.S. LEXIS 2240 (1962).

9. Waiver of Right of Action.

A surviving spouse, who knows that he has a right of action for wrongful death, waives his right when he fails to maintain control over it by either effecting a compromise or bringing the action to trial. Foster v. Jeffers, 813 S.W.2d 449, 1991 Tenn. App. LEXIS 8 (Tenn. Ct. App. 1991), appeal denied, 1991 Tenn. LEXIS 113 (Tenn. Mar. 18, 1991), appeal denied, 1991 Tenn. LEXIS 183 (Tenn. May 6, 1991).

Where surviving spouse knowingly waived his right of action for wrongful death, he also waived his right to collect any proceeds from the wrongful death action. Foster v. Jeffers, 813 S.W.2d 449, 1991 Tenn. App. LEXIS 8 (Tenn. Ct. App. 1991), appeal denied, 1991 Tenn. LEXIS 113 (Tenn. Mar. 18, 1991), appeal denied, 1991 Tenn. LEXIS 183 (Tenn. May 6, 1991).

In a case where the surviving spouse has knowingly waived his right to bring a wrongful death action and there are no surviving children of the deceased, the right of action as well as the right to collect the proceeds therefrom pass to the next of kin. Foster v. Jeffers, 813 S.W.2d 449, 1991 Tenn. App. LEXIS 8 (Tenn. Ct. App. 1991), appeal denied, 1991 Tenn. LEXIS 113 (Tenn. Mar. 18, 1991), appeal denied, 1991 Tenn. LEXIS 183 (Tenn. May 6, 1991).

Collateral References. 1 Am. Jur. 2d Abatement, Survival and Revival § 94; 22 Am. Jur. 2d Death §§ 47-59, 101, 102.

1 C.J.S. Abatement and Revival §§ 161, 162; 25A C.J.S. Death § 33.

Action for death of stepparent by or for benefit of stepchild. 68 A.L.R.3d 1220.

Admissibility of evidence of, or propriety of comment as to, plaintiff-spouse's remarriage, or possibility thereof, in action for damages for death of other spouse. 88 A.L.R.3d 926.

Abatement and revival 54, 55.

20-5-111. Death of beneficiary before action.

Death of a primary beneficiary, after the death of one so injured and before suit is brought, shall not work a loss of cause of action, which shall be deemed to survive in behalf of those who, after the beneficiary, are the next of kin of the decedent.

Code 1932, § 8243; T.C.A. (orig. ed.), § 20-612.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 637.

Tennessee Jurisprudence, 1 Tenn. Juris., Abatement, Survival and Revival, § 32.

Law Reviews.

Actions for Wrongful Death in Tennessee (William T. Gamble), 4 Vand. L. Rev. 289.

Wrongful Death in Tennessee — New Solutions to Recurring Problems, 9 Mem. St. U.L. Rev. 85.

NOTES TO DECISIONS

1. Construction.

This section is in effect an amendment to § 20-5-112 and upon the reading of the two sections together it becomes apparent that the legislature intended the right of recovery to survive to the next of kin of the deceased primary beneficiary and not the next of kin of the person wrongfully killed; the “decedent” referred to in the provisions for survival to the “next of kin of such decedent” refers to the primary beneficiary the word “beneficiary” being implied. Ridge v. Bright, 172 Tenn. 87, 110 S.W.2d 312, 1937 Tenn. LEXIS 54 (1937).

In a declaratory judgment case in which a jury found that the deceased did not die of her injuries, T.C.A. §§ 20-5-108 and 20-5-111 did not apply. Moreover, § 20-5-111 should be read in conjunction with T.C.A. § 20-5-112 and the purpose of the two statutes, read together, is to provide that causes of action vested or suits instituted to recover for wrongful death are not abated by the death of a beneficiary as enumerated in T.C.A. § 20-5-106, i.e., the widow and next of kin. Timmins v. Lindsey, 310 S.W.3d 834, 2009 Tenn. App. LEXIS 731 (Tenn. Ct. App. Oct. 28, 2009), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 238 (Tenn. Mar. 15, 2010).

2. Common Disaster.

Where husband, wife and children were involved in a common accident with husband and children being killed immediately and the wife dying 24 hours later the recovery for the wrongful death of the husband and children passed to the next of kin of the wife to the exclusion of the next of kin of the husband and children. Ridge v. Bright, 172 Tenn. 87, 110 S.W.2d 312, 1937 Tenn. LEXIS 54 (1937).

Collateral References. 22 Am. Jur. 2d Death §§ 70, 194-202.

1 C.J.S. Abatement and Revival § 119; 25A C.J.S. Death §§ 33, 34, 40.

Effect of death of beneficiary upon right of action under death statute. 13 A.L.R.4th 1060.

For whose benefit action for wrongful death may be maintained upon death of beneficiary. 43 A.L.R.2d 1291, 13 A.L.R.4th 1060, 73 A.L.R.4th 441.

20-5-112. Death of beneficiary during action.

No suit for personal injuries or death from a wrongful act, in any of the courts of this state, whether on appeal or otherwise, and whether in an inferior or appellate court, shall abate or be abated, because or on account of the death of the beneficiary or beneficiaries for whose use and benefit the suit was brought, and the suit shall be proceeded with to final judgment, as though the beneficiary or beneficiaries had not died, for the use and benefit of the next of kin of the deceased beneficiary.

Acts 1903, ch. 317, § 1; Shan., § 4029a3; mod. Code 1932, § 8242; T.C.A. (orig. ed.), § 20-613.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 637.

Tennessee Jurisprudence, 1 Tenn. Juris., Abatement, Survival and Revival, § 32.

Law Reviews.

Wrongful Death in Tennessee — New Solutions to Recurring Problems, 9 Mem. St. U.L. Rev. 85.

Cited: Nashville v. Reese, 138 Tenn. 471, 197 S.W. 492, 1917 Tenn. LEXIS 58 (1917); Smith v. Illinois C. R. Co., 394 F.2d 254, 1968 U.S. App. LEXIS 6843 (6th Cir. Tenn. 1968).

NOTES TO DECISIONS

1. Legislative Purpose.

This act simply provides that suits instituted for the benefit of those enumerated in § 20-5-106 shall not abate in event of their death. It was evidently passed to meet the situation created by construction of § 20-5-106 that suit did abate where the beneficiary designated died while suit was pending. Lones v. McFall, 152 Tenn. 239, 276 S.W. 866, 1925 Tenn. LEXIS 67 (1925).

2. Construction.

See note under heading “Construction,” § 20-5-111, Notes to Decisions.

In a declaratory judgment case in which a jury found that the deceased did not die of her injuries, T.C.A. §§ 20-5-108 and 20-5-111 did not apply. Moreover, § 20-5-111 should be read in conjunction with T.C.A. § 20-5-112 and the purpose of the two statutes, read together, is to provide that causes of action vested or suits instituted to recover for wrongful death are not abated by the death of a beneficiary as enumerated in T.C.A. § 20-5-106, i.e., the widow and next of kin. Timmins v. Lindsey, 310 S.W.3d 834, 2009 Tenn. App. LEXIS 731 (Tenn. Ct. App. Oct. 28, 2009), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 238 (Tenn. Mar. 15, 2010).

3. —Common Disaster.

See note under heading “Common Disaster,” § 20-5-111, Notes to Decisions.

4. Nature of Revived Right.

Action commenced by deceased and revived by and prosecuted in the name of the administrator is the same right of action which deceased would have had in case death had not ensued. Tobin v. Gelrich, 162 Tenn. 96, 34 S.W.2d 1058, 1930 Tenn. LEXIS 67 (1931), overruled in part, Davis v. Davis, 657 S.W.2d 753, 1983 Tenn. LEXIS 723 (Tenn. 1983).

5. Substitution of Parties.

Trial court improperly struck motion to substitute parties and dismissed wrongful death suit against a doctor because, pursuant to T.C.A. § 20-5-112, as the wrongful death action was brought while the beneficiary, the surviving spouse, was alive, the death of the beneficiary did not cause the action to abate; the surviving spouse's next of kin was his minor daughter, and a motion to substitute the daughter as the “real party” plaintiff, in place of her deceased father, was timely filed within 90 days of the suggestion of death pursuant to Tenn. R. Civ. P. 25.01. The amended motions filed later merely sought to have a guardian ad litem appointed as next friend of the daughter, and, all along, the goal was to have the daughter substituted for her deceased father. Holley v. Blackett, — S.W.3d —, 2012 Tenn. App. LEXIS 712 (Tenn. Ct. App. Oct. 10, 2012).

Decisions Under Prior Law

1. Death of Sole Beneficiary.

This statute was not applicable, where, under the previously existing law, it was adjudged, upon a plea in abatement, in a pending suit, before the enactment of such statute, that the right of action or suit had abated on account of the death of the sole statutory beneficiary, and could not be revived and prosecuted for the benefit of other next of kin of the first decedent, nor for the next of kin of the deceased beneficiary. St. Louis, I. M. & S. R. Co. v. Leazer, 119 Tenn. 1, 107 S.W. 684, 1907 Tenn. LEXIS 1 (1908).

20-5-113. Damages recoverable in wrongful death.

Where a person's death is caused by the wrongful act, fault or omission of another and suit is brought for damages, as provided for by §§ 20-5-106 and 20-5-107, the party suing shall, if entitled to damages, have the right to recover for the mental and physical suffering, loss of time and necessary expenses resulting to the deceased from the personal injuries, and also the damages resulting to the parties for whose use and benefit the right of action survives from the death consequent upon the injuries received.

Acts 1883, ch. 186, § 1; Shan., § 4029; Code 1932, § 8240; T.C.A. (orig. ed.), § 20-614.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 637.

Law Reviews.

“Jordan” Stew, 38 No. 5 Tenn. B.J. 26 (2002).

Loss of filial consortium (John A. Day), 37 No. 5 Tenn. B.J. 26 (2001).

Punitive Damages and Business Organizations: A Pathetic Fallacy, 67 Tenn. L. Rev. 971 (2000).

Tort Law — Loss of Consortium Damages for Spouse and Children, 67 Tenn. L. Rev. 475 (2000).

Torts — Hataway v. McKinley: Moving From Spacial Relationships to Significant Relationships, 23 Mem. St. U.L. Rev. 257 (1992).

Torts — Taylor v. Beard: The Tennessee Supreme Court Declines Adoption of a Cause of Action for Loss of Parental Consortium in Personal Injury Cases, 34 U. Mem. L. Rev. 737 (2004).

Cited: All v. John Gerber Co., 36 Tenn. App. 134, 252 S.W.2d 138, 1952 Tenn. App. LEXIS 100 (Tenn. Ct. App. 1952); Management Servs., Inc. v. Hellman, 40 Tenn. App. 127, 289 S.W.2d 711, 1955 Tenn. App. LEXIS 123 (1955); Kindellan v. Arwood Material Co., 338 F. Supp. 1210, 1972 U.S. Dist. LEXIS 14899 (E.D. Tenn. 1972); Sharpe v. Lewisburg, 677 F. Supp. 1362, 1988 U.S. Dist. LEXIS 905 (M.D. Tenn. 1988); Wilkerson v. Altizer, 845 S.W.2d 744, 1992 Tenn. App. LEXIS 325 (Tenn. Ct. App. 1992); Fye v. Kennedy, 991 S.W.2d 754, 1998 Tenn. App. LEXIS 411 (Tenn. Ct. App. 1998); Rains v. Bend of the River, 124 S.W.3d 580, 2003 Tenn. App. LEXIS 537 (Tenn. Ct. App. 2003); Necessary v. Life Care Ctrs. of Am., Inc., — S.W.3d —, 2007 Tenn. App. LEXIS 698 (Tenn. Ct. App. Nov. 16, 2007); Timmins v. Lindsey, 310 S.W.3d 834, 2009 Tenn. App. LEXIS 731 (Tenn. Ct. App. Oct. 28, 2009); Bowman v. City of Memphis, 329 S.W.3d 766, 2010 Tenn. App. LEXIS 47 (Tenn. Ct. App. Jan. 27, 2010); Taylor v. Lakeside Behavioral Health Sys., — S.W.3d —, 2010 Tenn. App. LEXIS 198 (Tenn. Ct. App. Mar. 15, 2010); Zakour v. Ut Med. Group, Inc., — S.W.3d —, 2011 Tenn. App. LEXIS 261 (Tenn. Ct. App. May 19, 2011).

NOTES TO DECISIONS

1. General Principles.

The statute embraced in this section is almost a literal transcript of the rule for the measurement of damages laid down in the case of Nashville & C. R. Co. v. Prince, 49 Tenn. 580, 1871 Tenn. LEXIS 47 (1871); Railroad v. Wyrick, 99 Tenn. 500, 42 S.W. 434, 1897 Tenn. LEXIS 59 (1897); Davidson Benedict Co. v. Severson, 109 Tenn. 572, 72 S.W. 967, 1902 Tenn. LEXIS 95 (1903), overruled, Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999).

The great fluctuation of judicial opinion as to what were the true elements of damage for the wrongful death of a person no doubt led to the passage of this section. Lougue v. Memphis & C. R. Co., 91 Tenn. 458, 19 S.W. 430 (1892); Chattanooga E. R. Co. v. Johnson, 97 Tenn. 667, 37 S.W. 558 (1896); Railroad v. Wyrick, 99 Tenn. 500, 42 S.W. 434, 1897 Tenn. LEXIS 59 (1897).

The statute created no new, additional, or independent cause of action, but enlarged and regulated the measure of damages. Lougue v. Memphis & C. R. Co., 91 Tenn. 458, 19 S.W. 430 (1892); Whaley v. Catlett, 103 Tenn. 347, 53 S.W. 131, 1899 Tenn. LEXIS 115 (1899); Elliott v. Felton, 119 F. 270, 1902 U.S. App. LEXIS 4665 (6th Cir. Tenn. 1902); Davidson Benedict Co. v. Severson, 109 Tenn. 572, 72 S.W. 967, 1902 Tenn. LEXIS 95 (1903), overruled, Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999); Stuber v. Louisville & N. R. Co., 113 Tenn. 305, 87 S.W. 411, 1904 Tenn. LEXIS 28 (1904); St. Louis, I. M. & S. R. Co. v. Leazer, 119 Tenn. 1, 107 S.W. 684, 1907 Tenn. LEXIS 1 (1908).

Provisions of Worker's Compensation Law for benefits to dependents held inapplicable to action for wrongful death of one not an employee. Potts v. Leigh, 15 Tenn. App. 1, — S.W.2d —, 1931 Tenn. App. LEXIS 115 (Tenn. Ct. App. 1931).

Despite allowance of certain damages to the beneficiaries, this statute creates no new right of action in the beneficiaries but preserves only the right of action of the deceased. Jones v. Black, 539 S.W.2d 123, 1976 Tenn. LEXIS 572 (Tenn. 1976).

The amount of damages is primarily a question for the jury and their verdict is entitled to great weight on appeal when the trial court has approved it, if there is no claim that the verdict is corrupt or dishonest. Strother v. Lane, 554 S.W.2d 631, 1976 Tenn. App. LEXIS 266 (Tenn. Ct. App. 1977).

The Tennessee wrongful death statutes, § 20-5-106 and this section, are of the survival type, which simply preserve any action which the decedent would have had. Milligan v. American Hoist & Derrick Co., 622 F. Supp. 56, 1985 U.S. Dist. LEXIS 16397 (W.D. Tenn. 1985).

The language of this section does not in any way lead to the conclusion that a plaintiff's post-judgment death converts a personal injury action into a wrongful death action. Davis v. Jellico Community Hosp., Inc., 912 F.2d 129, 1990 U.S. App. LEXIS 14589 (6th Cir. Tenn. 1990).

T.C.A. § 20-5-113 gives rise to a single cause of action vested in the representative of the decedent, under which two types of damages may be recovered: 1) Actual damages to the deceased, which include pain and suffering, medical expenses and funeral costs; and 2) Pecuniary value of the life of the deceased, based on life expectancy, age, condition of health and strength, capacity for labor and for earning money, and personal habits as to sobriety and industry. Alexander v. Beale St. Blues Co., 108 F. Supp. 2d 934, 1999 U.S. Dist. LEXIS 22251 (W.D. Tenn. 1999).

Wrongful death beneficiaries'  claims against a nursing home arising from the death of a resident were subject to an arbitration agreement between the resident and the home; the wrongful death claim belonged to the resident's estate and not to the beneficiaries, so the beneficiaries were required to seek their damages in the arbitral forum agreed to by the estate. Wood v. Greenfield Assisted Living of Memphis, LLC, — F. Supp. 2d —, 2015 U.S. Dist. LEXIS 179186 (W.D. Tenn. June 22, 2015).

2. Tests for Measuring Compensation.

The measure of damages for the wrongful killing of a person is actual compensation in all cases where the nature of the case admits of the application of the rule; and in cases involving mental and physical suffering that do not admit of being brought to an actual standard of value, some reasonable proportion between the circumstances attending the injury and the damages allowed should be observed by the jury. Louisville, N. & G. S. R.R. Co. v. Fleming, 82 Tenn. 128, 1884 Tenn. LEXIS 115 (1884).

The pecuniary value of the life is its value to deceased's estate. The amount representing this value represents also the loss which the beneficiary has suffered, because he is entitled to the money as the substitute for the life of the deceased. Potts v. Leigh, 15 Tenn. App. 1, — S.W.2d —, 1931 Tenn. App. LEXIS 115 (Tenn. Ct. App. 1931).

Damages embracing pecuniary value of life of deceased are to be determined upon consideration of life expectancy of deceased, his age, condition of health and strength, his capacity if any for labor and earning money through skill in any art, trade, profession, occupation or business and his personal habits as to sobriety and industry. Interstate Life & Acci. Co. v. Cox, 55 Tenn. App. 40, 396 S.W.2d 80, 1965 Tenn. App. LEXIS 238 (Tenn. Ct. App. 1965); Southern R. Co. v. Sloan, 56 Tenn. App. 380, 407 S.W.2d 205, 1965 Tenn. App. LEXIS 232 (Tenn. Ct. App. 1965); Hensley v. Harbin, 782 S.W.2d 480, 1989 Tenn. App. LEXIS 304 (Tenn. Ct. App. 1989); Thrailkill v. Patterson, 879 S.W.2d 836, 1994 Tenn. LEXIS 196 (Tenn. 1994).

In wrongful death action trial court should have instructed jury that for purpose of determining pecuniary value of decedent's life they should take into consideration the life expectancy of decedent, his age, the condition of his health, his strength, his capacity for work and earning money, his personal habits for sobriety and industry, all of these things to be modified by the fact that expectancy of life is at most a probability based upon experience and also modified by the fact that earnings of the same individual are not always the same and uniform. Newman v. Simmons, 62 Tenn. App. 610, 466 S.W.2d 506, 1970 Tenn. App. LEXIS 289 (Tenn. Ct. App. 1970).

One of the elements of damage in wrongful death action is pecuniary value of life of decedent on the day he died. Newman v. Simmons, 62 Tenn. App. 610, 466 S.W.2d 506, 1970 Tenn. App. LEXIS 289 (Tenn. Ct. App. 1970).

The pecuniary value of decedent's life under this section is the same as its value to his estate. Newman v. Simmons, 62 Tenn. App. 610, 466 S.W.2d 506, 1970 Tenn. App. LEXIS 289 (Tenn. Ct. App. 1970).

The sexual conduct of the deceased's mother who brought the wrongful death action had nothing to do with the deceased's capacity for work and personal habits. Tutor v. Bingham, 545 S.W.2d 944, 1976 Tenn. App. LEXIS 262 (Tenn. Ct. App. 1976).

The fact that a party is in a weakened condition at the time of the injury is not a causal defense available to the defendant in a wrongful death action. Such condition may be material to the issue of life expectancy, but is not evidence as to the cause of the injury. Fuller v. Speight, 571 S.W.2d 840, 1978 Tenn. App. LEXIS 302 (Tenn. Ct. App. 1978).

Evidence of commission of a crime by decedent is competent on the question of pecuniary value of decedent's life, and the court erred in excluding such testimony in this case. Hensley v. Harbin, 782 S.W.2d 480, 1989 Tenn. App. LEXIS 304 (Tenn. Ct. App. 1989).

3. Two Classes of Damages.

In an action for the wrongful death of a person, the damages, recoverable in the one and same action, consist of two classes: the first class consists of damages purely for the injury to the deceased himself, and embraces damages for the mental and physical suffering, loss of time, and necessary expenses resulting to the deceased from personal injury; and the second class consists of the incidental damages suffered by the widow, children, or next of kin, from the death, and embraces the pecuniary value of the life of the deceased, to be determined upon the consideration of his expectancy of life, his age, condition of health and strength, his capacity of labor; and for earning money through skill in any art, trade, profession, occupation, or business, and his personal habits as to sobriety and industry; all modified, however, by the fact that the expectancy of life is at most only a probability, based upon experience, and also by the fact that the earnings of the same individual are not always uniform. Davidson Benedict Co. v. Severson, 109 Tenn. 572, 72 S.W. 967, 1902 Tenn. LEXIS 95 (1903), overruled, Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999); Knoxville Ry. & Light Co. v. Davis, 3 Tenn. Civ. App. (3 Higgins) 522 (1912); Potts v. Leigh, 15 Tenn. App. 1, — S.W.2d —, 1931 Tenn. App. LEXIS 115 (Tenn. Ct. App. 1931).

There is but one cause of action embracing the first and second classes of damages contemplated by this section, namely, the action of the deceased, although the recovery may include damages sustained by persons to whom the statute gives the recovery. Potts v. Leigh, 15 Tenn. App. 1, — S.W.2d —, 1931 Tenn. App. LEXIS 115 (Tenn. Ct. App. 1931).

Two doctors'  post-2001 failure to diagnose the decedent's prostate cancer, which allegedly led to the decedent's increased pain and suffering, did not entitle the decedent's children to damages for pain and suffering irrespective of their success as T.C.A. § 20-5-113 set forth two classifications of damages available in successful wrongful death claims. Givens v. Josovitz, 343 S.W.3d 76, 2010 Tenn. App. LEXIS 705 (Tenn. Ct. App. Nov. 9, 2010), appeal denied, — S.W.3d —, 2011 Tenn. LEXIS 400 (Tenn. Apr. 14, 2011).

4. Mental and Physical Suffering of Deceased.

Damages for the mental and physical suffering of the deceased are recoverable by those in whose favor the right of action survives. Louisville & N. R. Co. v. Stacker, 86 Tenn. 343, 6 S.W. 737, 1887 Tenn. LEXIS 52, 6 Am. St. Rep. 840 (1887); Railroad v. Wyrick, 99 Tenn. 500, 42 S.W. 434, 1897 Tenn. LEXIS 59 (1897); Davidson Benedict Co. v. Severson, 109 Tenn. 572, 72 S.W. 967, 1902 Tenn. LEXIS 95 (1903), overruled, Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999).

Beneficiaries may recover for deceased's mental and physical suffering, though the declaration did not cover pain and suffering. Brown v. Ellison, 12 Tenn. App. 27, — S.W. —, 1926 Tenn. App. LEXIS 209 (Tenn. Ct. App. 1926).

Trial court erred in not allowing both of the estate representatives' claims for personal injuries and wrongful death to go to the jury, with the understanding that the representatives were not to have double recovery for the same damages, and to rule otherwise would have given no force and effect to the plain language of Tenn. Civ. Proc. Rule 8 and T.C.A. § 20-5-102; under T.C.A. § 20-5-113, the representatives were not able to recover pain and suffering damages under their wrongful death claim under T.C.A. § 20-5-106 and also under their personal injury claim, but this did not require that the personal injury claim be dismissed because the jury could have found that the nursing home injured the decedent but did not ultimately cause the decedent's death. Rolen v. Wood Presbyterian Home, Inc., 174 S.W.3d 158, 2005 Tenn. App. LEXIS 278 (Tenn. Ct. App. 2005), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 974 (Tenn. Oct. 24, 2005).

5. Instantaneous Death.

The action for a wrongful death lies whether the death is instantaneous and simultaneous with the injuries, or occurs after an interval. Nashville & C. R. Co. v. Prince, 49 Tenn. 580, 1871 Tenn. LEXIS 47 (1871); Fowlkes v. Nashville & D. R. Co., 56 Tenn. 829, 1872 Tenn. LEXIS 211 (1872); Louisville & N. R. Co. v. Conner, 61 Tenn. 382, 1872 Tenn. LEXIS 385 (1872); Trafford v. Adams Express Co., 76 Tenn. 96, 1881 Tenn. LEXIS 14 (1881); Davidson Benedict Co. v. Severson, 109 Tenn. 572, 72 S.W. 967, 1902 Tenn. LEXIS 95 (1903), overruled, Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999).

Where the death is instantaneous, there can be no compensation for mental and physical suffering of the deceased. Nashville & C. R. Co. v. Prince, 49 Tenn. 580, 1871 Tenn. LEXIS 47 (1871); Nashville & C.R.R. v. Smith, 53 Tenn. 174, 1871 Tenn. LEXIS 339 (Tenn. Sep. 30, 1871); Trafford v. Adams Express Co., 76 Tenn. 96, 1881 Tenn. LEXIS 14 (1881); Carolina, C. & O.R.R. v. Shewalter, 128 Tenn. 363, 161 S.W. 1136, 1913 Tenn. LEXIS 55, 1916C L.R.A. (n.s.) 964 (1913), aff'd, Shewater v Carolina, C. & O. R. Co., 239 U.S. 630, 36 S. Ct. 166, 60 L. Ed. 476, 1915 U.S. LEXIS 1419 (1915); Louisville & N.R.R. v. Johnson, 7 Tenn. Civ. App. (7 Higgins) 458 (1917).

The question whether the injured person suffered mental or physical pain, where death was instantaneous, is a question for the jury. Western & A. R. Co. v. Roberson, 61 F. 592, 1894 U.S. App. LEXIS 2210 (6th Cir. Tenn. 1894).

Where deceased was rendered unconscious immediately and did not suffer and no medical or funeral expenses are proved, the award of damages can be for only those resulting from the death consequent upon the injuries received. Potts v. Leigh, 15 Tenn. App. 1, — S.W.2d —, 1931 Tenn. App. LEXIS 115 (Tenn. Ct. App. 1931).

Where parties stipulated that one decedent in wrongful death action was killed instantly and that the other decedent died two hours later without regaining consciousness, the amount of damages recoverable would be the pecuniary value of the lives of the decedents together with any medical or burial expenses. Southern R. Co. v. Sloan, 56 Tenn. App. 380, 407 S.W.2d 205, 1965 Tenn. App. LEXIS 232 (Tenn. Ct. App. 1965).

In a wrongful death action, recovery for pain and suffering was not available because conscious injury was not shown and could not have reasonably been inferred from the evidence presented where the personal representative presented no evidence to refute testimony that the decedent was killed upon impact. Wilburn v. City of Memphis, — S.W.3d —, 2010 Tenn. App. LEXIS 260 (Tenn. Ct. App. Apr. 9, 2010).

6. Natural and Proximate Cause.

An action cannot be maintained under these statutes for the death of a person, unless the death is the natural and proximate result or consequence of the injury complained of and proved. Wagner v. Woolsey, 48 Tenn. 235, 1870 Tenn. LEXIS 42 (1870); White v. Conly, 82 Tenn. 51, 1884 Tenn. LEXIS 104, 52 Am. Rep. 154, 52 Am. Rep. 154 (1884); Nashville v. Reese, 138 Tenn. 471, 197 S.W. 492, 1917 Tenn. LEXIS 58 (1917).

7. Death of Infant.

Where death results, and the parent, as administrator of the child, sues, he is entitled to recover for the mental and physical suffering of the child, loss of the child's time, and the necessary expenses, if any, and also the damages for the wrongful death of the child. St. Louis, I. M. & S. R. Co. v. Leazer, 119 Tenn. 1, 107 S.W. 684, 1907 Tenn. LEXIS 1 (1908); Tennessee Coal, Iron & R.R. v. Watts, 1 Tenn. Civ. App. (1 Higgins) 347 (1909); Chess-Wymond Co. v. Davis, 4 Tenn. Civ. App. (4 Higgins) 197 (1913).

Mental suffering is not an element of damages in action for the death of a child. Garis v. Eberling, 18 Tenn. App. 1, 71 S.W.2d 215, 1934 Tenn. App. LEXIS 9 (Tenn. Ct. App. 1934).

In a suit prosecuted by the administratrix of an infant for the wrongful death of such infant, the amount of damages recoverable was the pecuniary value of its life. Bradshaw v. Holt, 200 Tenn. 249, 292 S.W.2d 30, 1956 Tenn. LEXIS 403 (1956).

Sum of $14,000 was allowed for the death of a five and one-half year old boy. Pickens v. Southern R. Co., 177 F. Supp. 553, 1959 U.S. Dist. LEXIS 2680 (D. Tenn. 1959).

Substantial damages may be recovered by the parents of a minor child notwithstanding the fact that such child had never been gainfully employed, such damage to be measured by the experience and judgment of the jury, enlightened by a knowledge of the age, sex, and physical and mental characteristics of the child. Strother v. Lane, 554 S.W.2d 631, 1976 Tenn. App. LEXIS 266 (Tenn. Ct. App. 1977).

T.C.A. § 20-5-110 allows recovery of filial consortium damages as part of the pecuniary value of the decedent's life. Hancock v. Chattanooga-Hamilton County Hosp. Auth., 54 S.W.3d 234, 2001 Tenn. LEXIS 628 (Tenn. 2001).

In a wrongful death action by the father who survived the deceased mother, and the mother's unborn child, it was clear that a viable fetus “resided wherever its mother resided,” and therefore, the family exclusion provision in the policy was applicable, the insurer was not required to provide coverage for bodily injury to fetus, and the trial court's grant of partial summary judgment in favor of father, was reversed. Hollis v. Doerflinger, 137 S.W.3d 625, 2003 Tenn. App. LEXIS 416 (Tenn. Ct. App. 2003).

8. Death From Other Causes.

Where the injured party brought suit for personal injuries, and thereafter died from other causes, and his personal representative revived the suit, there can be a recovery for the mental and physical suffering of the deceased up to the time of his death, but there can be no recovery for the suffering which the deceased would have undergone from the wrongs, for the time he would have lived in the ordinary course, had it not been for the other supervening causes of death. Memphis St. Ry. v. Prince, 2 Tenn. Civ. App. (2 Higgins) 688 (1912).

9. Incidental Damages.

If those entitled to the recovery, under the statute for a wrongful death, had a reasonable expectation of pecuniary advantage from the continuance of the life of the deceased, they may recover for it; and, the greater the value of the life to them, from a pecuniary point of view, the more perfect is the right of recovery. Collins v. East T., V. & G. R. Co., 56 Tenn. 841, 1872 Tenn. LEXIS 212 (1872); Davidson Benedict Co. v. Severson, 109 Tenn. 572, 72 S.W. 967, 1902 Tenn. LEXIS 95 (1903), overruled, Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999).

There can be no recovery of damages for the injured feelings, grief, or mental and physical suffering and anguish of the widow, children, or next of kin, occasioned by the death of the deceased, nor for the loss of the companionship, advice, protection, assistance, comfort, moral aid, and counsel of the deceased, called solatium. Trafford v. Adams Express Co., 76 Tenn. 96, 1881 Tenn. LEXIS 14 (1881); Nashville & C. R. Co. v. Smith, 77 Tenn. 470, 1882 Tenn. LEXIS 85 (1882); Louisville & N. R. Co. v. Conley, 78 Tenn. 531, 1882 Tenn. LEXIS 219 (1882); Freeman v. Illinois Cent. R.R., 107 Tenn. 340, 64 S.W. 1, 1901 Tenn. LEXIS 82 (1901); Railroad v. Bentz, 108 Tenn. 670, 69 S.W. 317, 1902 Tenn. LEXIS 14, 91 Am. St. Rep. 763, 58 L.R.A. 690 (1902); Davidson Benedict Co. v. Severson, 109 Tenn. 572, 72 S.W. 967, 1902 Tenn. LEXIS 95 (1903), overruled, Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999).

The incidental damages suffered by the next of kin are such as the deceased himself could have recovered had he been permanently disabled for life, and were himself prosecuting the suit. This measure of damages represents the pecuniary value of the life of the deceased, which the beneficiaries under the statute are entitled to recover as the pecuniary damages sustained by them. To allow them to recover both what the decedent might have recovered himself for permanent disability for life and what they have sustained as pecuniary damages consequent upon the death is to allow duplicate damages for the one life. There is no warrant for the allowance of duplicate damages. Davidson Benedict Co. v. Severson, 109 Tenn. 572, 72 S.W. 967, 1902 Tenn. LEXIS 95 (1903), overruled, Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 1999 Tenn. LEXIS 43 (Tenn. 1999).

10. Exemplary Damages.

In actions for personal injuries resulting in death, the measure of damages is actual compensation where the nature of the case admits of the application of the rule; but in cases where the elements of malice, gross negligence, willfulness, wantonness, or cruelty enter into the wrong done, the interest of society and that of the aggrieved party are blended, and the jury in such cases may, in its discretion, award exemplary, vindictive, or punitive damages. Haley v. Mobile & O. R. Co., 66 Tenn. 239, 1874 Tenn. LEXIS 113 (1874); Louisville & N. R.R. Co. v. Garrett, 76 Tenn. 438, 1881 Tenn. LEXIS 30, 41 Am. Rep. 640 (1881); Knoxville Traction Co. v. Lane, 103 Tenn. 376, 53 S.W. 557, 1899 Tenn. LEXIS 118, 46 L.R.A. 549 (1899); Louisville & N. R. Co. v. Satterwhite, 112 Tenn. 185, 79 S.W. 106, 1903 Tenn. LEXIS 97 (1904); Union R. Co. v. Carter, 129 Tenn. 459, 166 S.W. 592, 1914 Tenn. LEXIS 133 (1914).

Vindictive or exemplary damages may be awarded though death be instantaneous to the person injured. Haley v. Mobile & O. R. Co., 66 Tenn. 239, 1874 Tenn. LEXIS 113 (1874); Kansas C., F. S. & M. R. Co. v. Daughtry, 88 Tenn. 721, 13 S.W. 698, 1890 Tenn. LEXIS 9 (1890), aff'd, 138 U.S. 298, 11 S. Ct. 306, 34 L. Ed. 963, 1891 U.S. LEXIS 2085 (1891).

The allowance of exemplary damages, when warranted by the pleadings and the proof, is left to the sound discretion of the jury; and an instruction in such case that such damages must or should be assessed, or that it is not only the jury's right, but its duty, to do so, is erroneous. Louisville & N. R. Co. v. Satterwhite, 112 Tenn. 185, 79 S.W. 106, 1903 Tenn. LEXIS 97 (1904).

Exemplary damages may be allowed for wrongful killing by special officer employed by the defendant, while attempting to arrest the decedent for the misdemeanor of stealing a ride on defendant's train, and a judgment for $2,000 was not disturbed as excessive. Union R. Co. v. Carter, 129 Tenn. 459, 166 S.W. 592, 1914 Tenn. LEXIS 133 (1914).

11. Deduction for Living Expenses.

In challenging amount of wrongful death award, defendant could not complain of the trial court's failure to make a deduction for the decedents' living expenses where the defendant failed to offer proof on the issue at trial. Hutton v. City of Savannah, 968 S.W.2d 808, 1997 Tenn. App. LEXIS 565 (Tenn. Ct. App. 1997).

12. Mitigation of Damages.

In estimating the damages sustained by those entitled to recover it is competent for the wrongdoer (the defendant) to show, in mitigation of the damages, that the deceased was a drunken and worthless man; that he provided nothing for his family, but consumed what his family supplied. Nashville & C. R. Co. v. Prince, 49 Tenn. 580, 1871 Tenn. LEXIS 47 (1871).

Funeral expenses are an element of damage. Landrum v. Callaway, 12 Tenn. App. 150, — S.W.2d —, 1930 Tenn. App. LEXIS 48 (Tenn. Ct. App. 1930).

In suit by administrator for benefit of widow and children of a deceased person to recover for wrongful death of deceased the trial court properly refused charge by defendant that no recovery could be had for loss by widow and children of the society and companionship of father since such was a proper element to consider under the rule of compensatory damages recoverable. Landrum v. Callaway, 12 Tenn. App. 150, — S.W.2d —, 1930 Tenn. App. LEXIS 48 (Tenn. Ct. App. 1930).

Damages are not mitigated by the neglect of a physician attending injured person. Heggie v. Barley, 5 Tenn. Civ. App. (5 Higgins) 78 (1914).

The desertion of a child by the father and failure t