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 [Repealed.]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 ed.), § 20-101), concerning real plaintiffs, was repealed by Acts 1991, ch. 273, § 2.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 to provide will not mitigate the damages recoverable for the child's death where the father's act did not contribute to the death. Heggie v. Barley, 5 Tenn. Civ. App. (5 Higgins) 78 (1914).

The fact that deceased was self-supporting and no one contributed to her support and that she did not contribute to the support of anyone else is immaterial as regards the question of damages. Potts v. Leigh, 15 Tenn. App. 1, — S.W.2d —, 1931 Tenn. App. LEXIS 115 (Tenn. Ct. App. 1931).

The fact of estrangement of deceased and her husband is immaterial in determining the amount of damages. Potts v. Leigh, 15 Tenn. App. 1, — S.W.2d —, 1931 Tenn. App. LEXIS 115 (Tenn. Ct. App. 1931).

13. Excessive Damages.

Judgment for $10,000 for death of woman, 34 years of age, in good health, earning from eight to ten dollars weekly, will not be disturbed on appeal on ground that it is excessive, her expectance being over 31 years. Potts v. Leigh, 15 Tenn. App. 1, — S.W.2d —, 1931 Tenn. App. LEXIS 115 (Tenn. Ct. App. 1931).

Verdict of $10,000 was reduced to $6,500 in the death of a five and a half year old child who suffered for two hours before death. Garis v. Eberling, 18 Tenn. App. 1, 71 S.W.2d 215, 1934 Tenn. App. LEXIS 9 (Tenn. Ct. App. 1934).

In actions against railroad, verdict of $22,500 for death of 11-year-old child, and verdict for death of 13-year-old child was not excessive under this statute. Southern R. Co. v. Miller, 285 F.2d 202, 1960 U.S. App. LEXIS 3074, 85 A.L.R.2d 842 (6th Cir. Tenn. 1960).

Allowance of $5,000 for wrongful death of 84 year old woman in moderately good health who suffered fractures of leg and thumb in fall and died three days later from an embolism was not excessive. Interstate Life & Acci. Co. v. Cox, 55 Tenn. App. 40, 396 S.W.2d 80, 1965 Tenn. App. LEXIS 238 (Tenn. Ct. App. 1965).

Verdict of $76,105, remitted by $26,105 to $50,000, was not excessive for wrongful death of 9-year-old boy who was industrious in nature with good personal habits and life expectancy of 60.8 years. Southern R. Co. v. Sloan, 56 Tenn. App. 380, 407 S.W.2d 205, 1965 Tenn. App. LEXIS 232 (Tenn. Ct. App. 1965).

Award of $103,923 was not excessive for wrongful death of 41-year-old female school teacher who was in good health, sober in habits, very industrious with a life expectancy of 36.4 years and estimated future earnings of $133,199, the present value of which was $88,520 using six percent discount factor. Southern R. Co. v. Sloan, 56 Tenn. App. 380, 407 S.W.2d 205, 1965 Tenn. App. LEXIS 232 (Tenn. Ct. App. 1965).

For the death of a soya company employee, killed by the falling upon him of the door of a box car from which he and a fellow employee were attempting to unload soybeans, who was 45 years old, lived 18 days in intense and excruciating pain, had an income of $5,000 per year, and left surviving him a widow and three minor children, a verdict of $140,000 was not so excessive as to require remittitur. Smith v. Illinois C. R. Co., 394 F.2d 254, 1968 U.S. App. LEXIS 6843 (6th Cir. Tenn. 1968).

A jury award of $75,000 for the death of an 11-year-old boy whom the jury had found guilty of remote contributory negligence and who never regained consciousness before his death was not excessive. Strother v. Lane, 554 S.W.2d 631, 1976 Tenn. App. LEXIS 266 (Tenn. Ct. App. 1977).

Child's award of $260,000 for the deaths of the child's 70 and 79 year-old parents was reduced to $150,000 where no proof was offered as to the pecuniary value of the domestic services the parents had provided for their child. Hutton v. City of Savannah, 968 S.W.2d 808, 1997 Tenn. App. LEXIS 565 (Tenn. Ct. App. 1997).

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).

14. Interest.

Interest will be allowed from the date of the rendition of a judgment by the circuit court in an action for personal injuries or wrongful death, upon its affirmance in the Supreme Court. Chesapeake, O. & S. W. R. Co. v. Higgins, 85 Tenn. 620, 4 S.W. 47, 1887 Tenn. LEXIS 3 (1887); Louisville & N. R. Co. v. Wallace, 91 Tenn. 35, 17 S.W. 882, 1981 Tenn. LEXIS 74 (1891).

Interest cannot be allowed, as part of the verdict, and it is reversible error for the trial judge to instruct the jury that they may, in their discretion, allow interest upon the amount of damages awarded. Louisville & N. R. Co. v. Wallace, 91 Tenn. 35, 17 S.W. 882, 1981 Tenn. LEXIS 74 (1891); Young v. Cowden, 98 Tenn. 577, 40 S.W. 1088, 1897 Tenn. LEXIS 147 (1897); Louisville & N. R. Co. v. Fort, 112 Tenn. 432, 80 S.W. 429, 1903 Tenn. LEXIS 114 (1903).

Remittitur of the interest as a separate item in the verdict, made in the Supreme Court in a case where interest was allowed as part of the verdict, cures the error in the verdict. Louisville & N. R. Co. v. Wallace, 91 Tenn. 35, 17 S.W. 882, 1981 Tenn. LEXIS 74 (1891); Young v. Cowden, 98 Tenn. 577, 40 S.W. 1088, 1897 Tenn. LEXIS 147 (1897); Alabama G. S. R. Co. v. Roberts, 113 Tenn. 488, 82 S.W. 314, 1904 Tenn. LEXIS 39, 67 L.R.A. 495, 3 Ann. Cas. 937 (1904).

15. Proof.

In an action for wrongful death, it is competent to show the deceased person's ability and capacity for labor, as well as his skill in any particular art or profession, and that his habits were good, regular, and temperate, in order to show what he was capable of earning; but what money in fact he made the year previous is not pertinent, and is not strictly competent. E. T. V. & G. R.R. v. White, 73 Tenn. 540, 1880 Tenn. LEXIS 178 (1880); East T., V. & G. R.R. Co. v. Gurley, 80 Tenn. 46, 1883 Tenn. LEXIS 138 (1883); Louisville & N. R. Co. v. Howard, 90 Tenn. 144, 19 S.W. 116, 1891 Tenn. LEXIS 4 (1891); Bridge Co. v. Barnes, 98 Tenn. 401, 39 S.W. 714, 1896 Tenn. LEXIS 234 (Tenn. Dec. 1896).

Evidence of the minimum value of the crops raised by the deceased for the past years and the value of the same crops raised by others is incompetent and inadmissible. Louisville & N. R. Co. v. Howard, 90 Tenn. 144, 19 S.W. 116, 1891 Tenn. LEXIS 4 (1891).

Under a declaration based on this section, it is competent to show the circumstances relating to the condition and treatment of the deceased from the time of the injury until his death. Wabash Screen Door Co. v. Black, 126 F. 721, 1903 U.S. App. LEXIS 4358 (6th Cir. Tenn. 1903).

So far as the right of action is that of the deceased, his personal representative and next of kin are bound by his admissions made while yet alive. Middle T. R. Co. v. McMillan, 134 Tenn. 490, 184 S.W. 20, 1915 Tenn. LEXIS 174 (1916).

In an action by a husband to recover damages for the wrongful death of his wife, the burden of proof on the issue of the contributory negligence of the husband is upon the defendant. Hines v. Partridge, 144 Tenn. 219, 231 S.W. 16, 1920 Tenn. LEXIS 75 (1921).

Proof that a deceased daughter aided in the support of the plaintiff mother is not competent, but the error in its admission is not reversible where the charge to the jury did not refer to that proof as an element of damages, showing same allowable. Johnson v. Maury County Trust Co., 15 Tenn. App. 326, — S.W.2d —, 1932 Tenn. App. LEXIS 100 (Tenn. Ct. App. 1932).

Proof of life expectancy, state of health, and earning capacity are necessary in fixing damages for wrongful death. An instruction to the jury that age, earning capacity, and character of citizenship of the deceased should be looked to in fixing damages was erroneous in the absence of proof on the subject. Tennessee C. R. Co. v. Dial, 16 Tenn. App. 646, 65 S.W.2d 610, 1933 Tenn. App. LEXIS 38 (Tenn. Ct. App. 1933).

Where error in jury instructions results in damages being awarded on behalf of decedent without evidence being adduced as to pecuniary value of that life, the award will not be overturned where there is ample evidence at trial of other grounds for jury's verdict. Scott v. Jones Bros. Constr., 960 S.W.2d 589, 1997 Tenn. App. LEXIS 438 (Tenn. Ct. App. 1997).

16. Instructions.

In an action for the wrongful death of a wife, an instruction, “If you find in favor of the plaintiff, it will be your duty to fix the amount of his recovery. The measure of the recovery would be reasonable compensation for the life of the deceased. In determining that, take into consideration her age, the state of her health, her expectancy of life, of a person of her state of health and age, and let your verdict be for reasonable compensation,” was held not to be prejudicially erroneous against the defendant, although the trial court should have charged the jury that the measure of damages was the pecuniary value of the life of the deceased, and not any sentimental value which the jury might place on the deceased's life, and, further, in arriving at the value of the life, it should be taken into consideration that at best the duration of life is uncertain. Hines v. Partridge, 144 Tenn. 219, 231 S.W. 16, 1920 Tenn. LEXIS 75 (1921).

In death action it was error to charge the jury that it might look to the age of deceased and his earning capacity where there was no evidence as to his earning capacity, state of health, life expectancy, or amount of wages earned. Tennessee C. R. Co. v. Dial, 16 Tenn. App. 646, 65 S.W.2d 610, 1933 Tenn. App. LEXIS 38 (Tenn. Ct. App. 1933).

Alleged error of trial court in action for death of 5½ year old boy in charging that loss of services during the child's minority was an element to consider in arriving at damages was not prejudicial where the amount of the award was $5,000 and the child was physically and mentally normal as the value of the life of such child was not less than that amount regardless of the alleged erroneous charge. Bradshaw v. Holt, 200 Tenn. 249, 292 S.W.2d 30, 1956 Tenn. LEXIS 403 (1956).

Instructions in wrongful death action that jury could consider circumstances and condition of decedent's wife, the services he would have performed for his wife, the portion of his earnings he would have in the future applied to care and support of his wife and the life expectancy of his wife constituted reversible error. Newman v. Simmons, 62 Tenn. App. 610, 466 S.W.2d 506, 1970 Tenn. App. LEXIS 289 (Tenn. Ct. App. 1970).

17. Husband and Wife.

Wife's administrator may not maintain action for wrongful death of wife as result of unlawful assault of her husband. There is no new cause of action created, and deceased had none. Wilson v. Barton, 153 Tenn. 250, 283 S.W. 71, 1925 Tenn. LEXIS 25 (1926); 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).

If there are no children or descendants of children, the surviving husband alone, to the exclusion of the wife' next of kin, is entitled to the recovery, although the action must be by an administrator. Potts v. Leigh, 15 Tenn. App. 1, — S.W.2d —, 1931 Tenn. App. LEXIS 115 (Tenn. Ct. App. 1931).

It is not material that the deceased wife and her husband had been estranged and lived apart, since it does not affect the pecuniary value of the wife's life. Potts v. Leigh, 15 Tenn. App. 1, — S.W.2d —, 1931 Tenn. App. LEXIS 115 (Tenn. Ct. App. 1931).

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. 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).

18. —Loss of Consortium.

Wrongful Death Act does not provide for recovery for grief or loss of consortium by the decedent's children. Still v. Baptist Hospital, Inc., 755 S.W.2d 807, 1988 Tenn. App. LEXIS 315 (Tenn. Ct. App. 1988), questioned, Taylor v. Beard, 104 S.W.3d 507, 2003 Tenn. LEXIS 165 (2003).

Depending on the facts of the relationship, a parent may recover loss of consortium damages as an element of the pecuniary value of the child's life. Alexander v. Beale St. Blues Co., 108 F. Supp. 2d 934, 1999 U.S. Dist. LEXIS 22251 (W.D. Tenn. 1999).

Loss of consortium may be considered when calculating the pecuniary value of a deceased's life. 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).

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).

Trial court erred in refusing to instruct the jury on a decedent's parents' claim for loss of filial consortium in a wrongful death action; a new trial was necessary only as to consortium damages as it was clear that the jury's damages award was limited to the decedent's pain and suffering. Rothstein v. Orange Grove Ctr., 60 S.W.3d 807, 2001 Tenn. LEXIS 808 (Tenn. 2001).

Because the term “pecuniary value” includes consortium-like damages, children of the deceased were not limited in their recovery to medical and funeral expenses and loss of earning capacity; their award could include incidental damages, including loss of consortium, and therefore, the court's award of $300,000 to the decedent's children was not excessive. Knowles v. State, 49 S.W.3d 330, 2001 Tenn. App. LEXIS 120 (Tenn. Ct. App. 2001), review or rehearing denied, — S.W.3d —, 2001 Tenn. LEXIS 549 (Tenn. July 2, 2001).

19. —Divorced Spouses.

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).

20. Children of Deceased.

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 age of the child does not, in and of itself, preclude consideration of parental consortium damages, and the adult child inquiry shall take into consideration factors such as closeness of the relationship and dependence (i.e., of a handicapped adult child, assistance with day care, etc.). 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; 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 suit, in spite of the diminished probative value of the decedent's prior drug conviction evidence, the appellate court declined to find error in its admission because the complaint demanded damages for, among other things, the pecuniary value of the decedent's life as well as lost income and loss of earning capacity; the sole basis for recovery was the decedent's daughter's loss of parental consortium, and the exclusion of that evidence would not have more probably than not changed the jury's award. Hall v. Stewart, — S.W.3d —, 2007 Tenn. App. LEXIS 60 (Tenn. Ct. App. Jan. 31, 2007).

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).

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).

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, absent death, against the wrongdoer; therefore, 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).

21. Conflict of Law.

The “most significant relationship” approach of §§ 6, 145, 146, and 175 of the Restatement (Second) of Conflict of Laws (1971) was adopted by the state supreme court in place of the doctrine of lex loci delecti to resolve conflict of law questions in tort cases. Hataway v. McKinley, 830 S.W.2d 53, 1992 Tenn. LEXIS 313 (Tenn. 1992).

22. Hedonic Damages.

T.C.A. § 20-5-113 does not allow claims for hedonic damages; thus, it was proper for the trial court to refuse plaintiff's requested instruction on that issue. Spencer v. A-1 Crane Serv., 880 S.W.2d 938, 1994 Tenn. LEXIS 174 (Tenn. 1994).

23. Prior Medical History.

In a wrongful death suit, the trial court did not err in admitting, inter alia, a pathologist's evidence about the decedent's prior medical history because the doctor's training as a medical doctor and a general pathologist qualified him to opine on the diseases'  general effects on life expectancy, it was competent evidence of the decedent's health relating to his probable life expectancy, and provided a means by which the jury could weigh the evidence of the decedent's state of health with the information in the life expectancy charts. Hall v. Stewart, — S.W.3d —, 2007 Tenn. App. LEXIS 60 (Tenn. Ct. App. Jan. 31, 2007).

In a wrongful death suit, even if the trial court had erred in admitting a pathologist's evidence about the decedent's prior medical history, it was harmless error because the application for disability benefits the decedent's companion submitted on behalf of the decedent prior to his death communicated virtually the same information and painted a dim picture of his health prior to the accident and her testimony confirmed that the decedent had diabetes and high blood pressure at a minimum. Hall v. Stewart, — S.W.3d —, 2007 Tenn. App. LEXIS 60 (Tenn. Ct. App. Jan. 31, 2007).

In a wrongful death suit, the trial court did not err in admitting, inter alia, a pathologist's evidence about the decedent's prior medical history because the admission did not invited the jury to speculate as to whether the decedent blacked out just prior to the incident; the cross-examination of the doctor left open by implication only the possibility for defendant company to make a causation argument, but beyond that suggestion the appellate court could find no evidence of the company's advancement of that causation argument. Hall v. Stewart, — S.W.3d —, 2007 Tenn. App. LEXIS 60 (Tenn. Ct. App. Jan. 31, 2007).

24. Prior Conviction.

In a wrongful death suit, Tenn. R. Evid. 609 did not apply to the trial court's admission of the decedent's prior drug conviction because the case involved evidence of the decedent's prior conviction, not of the witness's; more importantly, the evidence of conviction was never offered through the decedent's daughter but was instead offered by plaintiff's counsel through decedent's companion on direct. Hall v. Stewart, — S.W.3d —, 2007 Tenn. App. LEXIS 60 (Tenn. Ct. App. Jan. 31, 2007).

In a wrongful death suit, because defendant company never cast the decedent as a rulebreaker and certainly never implied such in connection with his cocaine conviction, the appellate court could not find that on that basis, the trial court erred in admitting evidence of the decedent's prior drug conviction. Hall v. Stewart, — S.W.3d —, 2007 Tenn. App. LEXIS 60 (Tenn. Ct. App. Jan. 31, 2007).

In a wrongful death suit, the decedent's companion's testimony regarding the decedent's nice character, family involvements, and devotion to his loved ones did not open the door for the admission of prior convictions through the testimony of the decedent's daughter; even more, the appellate court did not perceive the conviction evidence as having been offered to prove that the decedent acted in similar fashion on a particular occasion, thus bringing it outside the scope of Tenn. R. Evid. 404(a). Hall v. Stewart, — S.W.3d —, 2007 Tenn. App. LEXIS 60 (Tenn. Ct. App. Jan. 31, 2007).

Collateral References. 22 Am. Jur. 2d Death §§ 115-145, 234, 236, 272.

1 C.J.S. Abatement and Revival § 186; 25A C.J.S. Death §§ 95-129.

Admissibility and sufficiency of proof of value of housewife's services, in wrongful death action. 77 A.L.R.3d 1175.

Admissibility, as against objection of remoteness, of evidence as to past earnings, upon issue as to amount of damages in an action for personal injury or death. 81 A.L.R.2d 733.

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.

Admissibility of evidence of plaintiff's or decedent's drawings from partnership or other business as evidence of earning capacity, in action for personal injury or death. 82 A.L.R.2d 679.

Adult child's right of action for loss of parental consortium. 12 A.L.R.6th 241.

Counsel's use, in trial of personal injury or wrongful death case, of blackboard, chart, diagram, or placard, not introduced in evidence, relating to damages. 86 A.L.R.2d 239.

Damages for wrongful death of husband or father as affected by receipt of social security benefits. 84 A.L.R.2d 764.

Death action by or in favor of parent against unemancipated child. 62 A.L.R.3d 1299.

Parent's desertion, abandonment, or failure to support minor child as affecting right or measure of recovery from wrongful death of child. 53 A.L.R.3d 566.

Pension, retirement income, social security payments, and the like, of deceased, as affecting recovery in wrongful death action. 81 A.L.R.2d 949.

Propriety and prejudicial effect of reference by plaintiff's counsel, in trial of personal injuries or death action, to amount of damages claimed or expected by his client. 14 A.L.R.3d 541.

Recovery for mental or emotional distress resulting from injury to, or death of, member of plaintiff's family arising from physician's or hospital's wrongful conduct. 77 A.L.R.3d 447.

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.

Recovery of nominal damages in wrongful death action. 69 A.L.R.2d 628.

Recovery of prejudgment interest on wrongful death damages. 96 A.L.R.2d 1104.

Remarriage of surviving spouse, or possibility thereof, as affecting action for wrongful death of deceased spouse. 87 A.L.R.2d 252, 88 A.L.R.3d 926.

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.

Valuing damages in personal injury actions awarded for gratuitously rendered nursing and medical care. 49 A.L.R.5th 685.

Who, other than parent, may recover for loss of consortium on death of minor child. 84 A.L.R.5th 687.

Death 78-101.

20-5-114. Death of executor or administrator.

When any sole executor or administrator is plaintiff or defendant and dies, the suit may be revived by or against the executor, administrator de bonis non or other successor in the interest of the decedent.

Code 1858, § 2853 (deriv. Acts 1825, ch. 65, §§ 4, 5); Shan., § 4574; Code 1932, § 8699; T.C.A. (orig. ed.), § 20-616.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 709.

Cited: Timmins v. Lindsey, 310 S.W.3d 834, 2009 Tenn. App. LEXIS 731 (Tenn. Ct. App. Oct. 28, 2009).

NOTES TO DECISIONS

1. Scire Facias.

The scire facias is the statutory mode of reviving suits, in the inferior and Supreme Courts, against the heir, representative, assign, or “other successor” of a deceased party, or against a new municipal corporation succeeding the old one. O'Connor v. Memphis, 74 Tenn. 730, 1881 Tenn. LEXIS 204 (1881).

Collateral References. 1 Am. Jur. 2d Abatement, Survival and Revival §§ 120-123.

1 C.J.S. Abatement and Revival §§ 120, 168; 25A C.J.S. Death §§ 41, 57, 58.

Executors and administrators 440.

20-5-115. [Repealed.]

Compiler's Notes. Former § 20-5-115 (Code 1858, § 2854 (deriv. Acts 1794, ch. 1, § 64); Shan., § 4575; Code 1932, § 8700; T.C.A. (orig. ed.), § 20-617), concerning revival of appeal or error was repealed by Acts 1981, ch. 449, § 1(2). For present provisions, see T.R.A.P. 19.

20-5-116. Party substituted in revivor.

Suit abated by the death of either party may be revived by or against the heir, personal representative, guardian or assign, as the case may be, who may be legally entitled to the decedent's place in the subject matter of the litigation.

Code 1858, § 2859 (deriv. Acts 1786, ch. 14, § 1; 1794, ch. 1, § 64; 1809 (Sept.), ch. 121, § 3); Shan., § 4579; Code 1932, § 8704; T.C.A. (orig. ed.), § 20-618.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 51.

Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 709.

Tennessee Jurisprudence, 1 Tenn. Juris., Abatement, Survival and Revival, §§ 27, 32; 2 Tenn. Juris., Appeal and Error, § 50.

Cited: Timmins v. Lindsey, 310 S.W.3d 834, 2009 Tenn. App. LEXIS 731 (Tenn. Ct. App. Oct. 28, 2009).

NOTES TO DECISIONS

1. Administrator's Right.

Where the administrator may sue for an act done in the intestate's lifetime, he may revive an action commenced by his intestate for the same act. Douglass v. Morford, 15 Tenn. 78, 15 Tenn. 79, 1834 Tenn. LEXIS 15 (1834).

The revivor of a case in the name of the plaintiff's personal representatives was justified where case was in judgment before the death of the plaintiff. Lenoir Car Works v. Trinkle, 228 F. 634, 1915 U.S. App. LEXIS 2050, 3 A.L.R. 1394 (6th Cir. Tenn. 1915).

2. Scire Facias Without Formal Order.

Scire facias to revive, without a formal order to revive, does not render the judgment invalid, where the parties appeared, demurred, and pleaded. Rhinehart, Ballard & Co. v. Murray, 83 Tenn. 469, 1885 Tenn. LEXIS 68 (1885).

3. Decree Without Revivor.

A decree without a revivor will not be reversed, where all the parties succeeding to the interest of the decedent were already parties to the suit. Gilchrist v. Cannon, 41 Tenn. 581, 1860 Tenn. LEXIS 111 (1860); Rhodes v. Crutchfield, 75 Tenn. 518, 1881 Tenn. LEXIS 150 (1881); Allen v. Shanks, 90 Tenn. 359, 16 S.W. 715, 1891 Tenn. LEXIS 25 (1891).

4. Death of Defendant.

As to death of principal obligor on a note, see Reams v. McNail, 28 Tenn. 542, 1848 Tenn. LEXIS 119 (1848).

5. Personal Representative.

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).

6. Submission to Jury Without Revivor.

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).

Collateral References. 1 C.J.S. Abatement and Revival § 161; 25A C.J.S. Death §§ 16, 65.

Abatement and revival 72.

20-5-117. Death of nominal plaintiff.

Where a suit is commenced in the name of one person for the use of another and the nominal plaintiff dies, the suit may be prosecuted without a revivor, as if the death had not happened.

Code 1858, § 2858 (deriv. Acts 1825, ch. 29, § 3); Shan., § 4578; Code 1932, § 8703; T.C.A. (orig. ed.), § 20-621.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 319.

Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 708.

Tennessee Jurisprudence, 1 Tenn. Juris., Abatement, Survival and Revival, § 29; 3 Tenn. Juris., Assignments, §§ 51, 53.

Cited: Timmins v. Lindsey, 310 S.W.3d 834, 2009 Tenn. App. LEXIS 731 (Tenn. Ct. App. Oct. 28, 2009).

NOTES TO DECISIONS

1. General Rule.

A revivor is unnecessary where the nominal plaintiff dies pending the suit. Wolfe v. Tyler, 48 Tenn. 313, 1870 Tenn. LEXIS 55 (1870); Kyle v. Ewing, 73 Tenn. 580, 1880 Tenn. LEXIS 187 (1880).

2. Rule Applied to Defunct Corporation.

The beneficiaries of a fund assigned by a corporation, afterwards becoming dissolved by expiration of its charter, may in chancery enforce their rights, on the principle that the death of the nominal plaintiff suing for the use of another will not abate the latter's suit. Ingraham v. Terry, 30 Tenn. 572, 1851 Tenn. LEXIS 107 (1851); State v. Bank of Tennessee, 62 Tenn. 395, 1874 Tenn. LEXIS 67 (1874); Kyle v. Ewing, 73 Tenn. 580, 1880 Tenn. LEXIS 187 (1880).

By the express provision of the statute, upon the death of the nominal plaintiff, the suit may be prosecuted without revivor, as if death had not happened; and there could be no good reason why the same rule should not apply where the nominal plaintiff is a corporation, and becomes defunct pending the action. Kyle v. Ewing, 73 Tenn. 580, 1880 Tenn. LEXIS 187 (1880).

Even though corporation ceased to exist before action was brought the unnecessary use of the name of the defunct corporation may be rejected as surplusage. Kyle v. Ewing, 73 Tenn. 580, 1880 Tenn. LEXIS 187 (1880).

3. Suits in Chancery.

This statute does not apply to courts of equity, and such suits must be revived in the name of the personal representative of the nominal plaintiff, when he dies pending the suit. Morrison v. Deaderick, 29 Tenn. 342, 1849 Tenn. LEXIS 80 (1849); East Tenn., G. & V.R.R. v. Henderson ex rel. Mathis, 69 Tenn. 1, 1878 Tenn. LEXIS 30 (1878).

Collateral References. 1 Am. Jur. 2d Abatement, Survival and Revival §§ 50, 143.

1 C.J.S. Abatement and Revival § 166.

20-5-118. [Repealed.]

Compiler's Notes. Former §§ 20-5-118, 20-5-119  (Code 1858, §§ 2860, 2861 (deriv. Acts 1819, ch. 16, §§ 1, 2); Shan., §§ 4580, 4581; mod. Code 1932, §§ 8705, 8706; T.C.A. (orig. ed.), §§ 20-622, 20-623), concerning marriage of party and intervention of husband of party, were repealed by Acts 2001, ch. 71, §§ 1, 2, effective July 1, 2001.

20-5-119. [Repealed.]

Compiler's Notes. Former §§ 20-5-118, 20-5-119  (Code 1858, §§ 2860, 2861 (deriv. Acts 1819, ch. 16, §§ 1, 2); Shan., §§ 4580, 4581; mod. Code 1932, §§ 8705, 8706; T.C.A. (orig. ed.), §§ 20-622, 20-623), concerning marriage of party and  intervention of husband of party, were repealed by Acts 2001, ch. 71, §§ 1, 2, effective July 1, 2001.

20-5-120. Automobile liability insurance carrier negligent in failing to settle claim against insured — Survival of action — Assignment of right of action for benefit of creditors.

  1. Any cause of action belonging to an insured person against the insured's automobile liability insurance carrier, based upon the negligence or bad faith of the insurance carrier in failing or refusing to settle any claim against the insured person within the limits of the insured's automobile liability insurance policy, shall survive the death of the insured person and shall pass to the insured's personal representative.
  2. Any cause of action within the purview of subsection (a) shall by operation of law be assigned to and be an asset belonging to any trustee in bankruptcy, receiver or other person acting in a representative capacity for the creditors of the insured person, and the cause of action may be filed and maintained by the trustee, receiver or other person acting in a representative capacity for the creditors of the insured person in the trustee's, receiver's or representative's own name as the representative in any court having jurisdiction and venue of the cause of action against the automobile liability insurance carrier of the insured person.
  3. No action within the purview of subsection (a) now pending or hereafter filed in any court of this state shall be abated or dismissed by any court upon the grounds that the action is or was not assignable by the insured person to one (1) of the persons or class of persons as set out in subsections (a) and (b).

Acts 1967, ch. 381, §§ 1-3; T.C.A., §§ 20-624 — 20-626; modified.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 691.

Tennessee Jurisprudence, 3 Tenn. Juris., Assignments, § 12; 4 Tenn. Juris., Bankruptcy, § 26.

Law Reviews.

Excess Liability of Insurers in Tennessee (Phillip A. Fleissner), 38 Tenn. L. Rev. 82.

Insurance — Insurer's Liability for Excess Judgment When Policy Has a Per Person Maximum, 38 Tenn. L. Rev. 289.

Cited: Can Do Pension & Profit Sharing Plan & Successor Plans v. Manier, Herod, Hollabaugh & Smith, 922 S.W.2d 865, 1996 Tenn. LEXIS 304 (Tenn. 1996); Timmins v. Lindsey, 310 S.W.3d 834, 2009 Tenn. App. LEXIS 731 (Tenn. Ct. App. Oct. 28, 2009).

Collateral References.

Excess carrier's right to maintain action against primary liability insurer for wrongful failure to settle claim against insured. 10 A.L.R.4th 879.

Liability insurer's potential liability for failure to settle claim against insured as subject to garnishment by insured's judgment creditors. 60 A.L.R.3d 1190.

Abatement and revival 41-47, 72(8, 9).

Chapter 6
Pleadings

Part 1
General Provisions

20-6-101. Scope of chapter.

The pleadings described in this chapter apply to all actions at law and to all legal proceedings for the redress of civil injuries in which pleadings are necessary and not otherwise expressly prescribed.

Code 1858, § 2880; Shan., § 4601; Code 1932, § 8725; T.C.A. (orig. ed.), § 20-701.

Cross-References. Clerk's fees, § 8-21-401.

Effect of failure to deny instrument under oath, § 24-5-105.

Signing of pleadings, Tenn. R. Civ. P. 11.

Textbooks. Tennessee Jurisprudence, 20 Tenn. Juris., Pleading, § 2.

Law Reviews.

Procedure — Counterclaim Statute Amended to Apply in Chancery, 6 Vand. L. Rev. 797.

Cited: Jack Strader Tire Co. v. Manufacturers Acceptance Corp., 221 Tenn. 631, 429 S.W.2d 428, 1968 Tenn. LEXIS 491 (1968).

NOTES TO DECISIONS

1. Application.

This chapter (now part) is intended to apply to common law courts only and not to chancery. Hood Lumber Co. v. Five Points Lumber Co., 193 Tenn. 681, 249 S.W.2d 896, 1952 Tenn. LEXIS 342 (1952).

Collateral References. 61 Am. Jur. 2d Pleading §§ 338-347.

71 C.J.S. Pleading §§ 343-366.

Evidence, effect of verification or absence thereof on pleading containing self-serving declarations as. 1 A.L.R. 42.

Evidence, effect of verification or its lack on admissibility of pleadings as containing admissions against interest. 52 A.L.R.2d 516.

Injunction pendente lite in action for divorce or separation, verification of allegations. 164 A.L.R. 352.

Liability insurance: refusal to verify pleading as breach of clause requiring assured's cooperation, aid, and (or) assistance. 139 A.L.R. 799.

Waiver of benefit of statute or rule by which allegation in pleading of execution or consideration of written instrument must be taken as true unless met by verified denial. 67 A.L.R. 1283.

Waiver of verification necessary to make pleadings containing self-serving declarations evidence. 1 A.L.R. 59.

Pleading 289-294.

20-6-102. Use of identifying information in electronic or paper filing.

  1. Unless otherwise required by statute, court rule, or court order, in an electronic or paper filing with the court that contains an individual's social security number, taxpayer identification number, or birth date; the name of an individual known to be a minor; or a financial account number, a party or nonparty making the filing shall include only:
    1. The last four (4) digits of the social security number and taxpayer identification number;
    2. The year of the individual's birth;
    3. The minor's initials; and
    4. The last four (4) digits of the financial account number.
  2. This section does not apply to filings in juvenile court.

Acts 2019, ch. 151, § 1.

Compiler's Notes. Former § 20-6-102 (Code 1932, §§ 10337, 10338; T.C.A. (orig. ed.), § 20-703), concerning verified pleadings, was repealed by Acts 1991, ch. 273, § 3.

Effective Dates. Acts 2019, ch. 151, § 2. April 17,  2019.

20-6-103. Use of recycled paper.

  1. The general assembly finds and declares that there is a need to expand upon existing laws that foster the effective and efficient management of solid waste by requiring that certain documents submitted by attorneys to courts of record be submitted on recycled paper. The general assembly further finds that the expanded use of recycled paper will protect and enhance the environment and the health and safety of the citizens of this state.
  2. As used in this section, unless the context otherwise requires:
    1. “Document” means a pleading or other paper submitted as an appendix to a pleading by an attorney, if the document is required or permitted to be filed with a clerk of a court of record concerning an action to be commenced or that is pending before a court of record;
    2. “Post-consumer waste” includes a product generated by a business or consumer that has served its intended end use and that has been separated from solid waste for the purpose of collection, recycling and disposition; and
    3. “Recycled paper” means paper with not less than fifty percent (50%) of its total weight consisting of secondary and post-consumer waste and with no less than ten percent (10%) of the total weight consisting of post-consumer waste.
  3. An attorney may not submit a document to a court of record after January 1, 1995, unless the document is submitted on recycled paper. This section applies to all papers appended to each document.
  4. The procedures adopted to implement this section shall not impede the conduct of court business or create grounds for an additional cause of action or sanction.
  5. A court of record may not refuse a document solely because of a failure to use recycled paper.
  6. Nothing in this section may be construed to apply to:
    1. Photographs;
    2. An original document that was prepared or printed prior to January 1, 1995;
    3. A document that was not created at the direction or under the control of the submitting attorney; or
    4. A facsimile copy otherwise permitted to be filed with a court of record instead of an original document; provided, that if the original is also required to be filed, the original shall be submitted in compliance with this section.
  7. This section is not applicable if recycled paper is not readily available.

Acts 1994, ch. 900, §§ 2, 3.

Cross-References. Use of alkaline paper in state records and documents, title 12. ch. 7, part 2.

Attorney General Opinions. Constitutionality, OAG 94-016 (2/15/94).

Part 2
Declarations

20-6-201. Successive actions.

Successive actions may be maintained on the same contract or transaction whenever, after the former action, a new cause of action arises therefrom.

Code 1858, § 2899; Shan., § 4620; Code 1932, § 8743; T.C.A. (orig. ed.), § 20-804.

Textbooks. Tennessee Jurisprudence, 1 Tenn. Juris., Actions, § 26.

Law Reviews.

Actions — Splitting a Cause of Action, 15 Tenn. L. Rev. 636.

Cited: Loudenback Fertilizer Co. v. Tennessee Phosphate Co., 121 F. 298, 1903 U.S. App. LEXIS 4608, 61 L.R.A. 402 (6th Cir. Tenn. 1903).

NOTES TO DECISIONS

1. Applicability.

Where appellees' three prior suits were all based on the inter vivos actions which decedent took with regard to her property, but the present claim, to the contrary, was founded on her testamentary actions, these claims were distinct and separate both in character and in time and were to be governed not by Tenn. R. Civ. P. 41.01(2) but by this section. Wright v. Wright, 832 S.W.2d 542, 1991 Tenn. App. LEXIS 748 (Tenn. Ct. App. 1991).

2. Suit on All Breaches Accrued.

Where several breaches have occurred at the time the suit is brought, they must all be sued on together, otherwise those omitted cannot be subsequently sued on. Matheny v. Preston Hotel Co., 140 Tenn. 41, 203 S.W. 327, 1918 Tenn. LEXIS 17 (1918).

3. Contract of Employment.

A contract for services for a certain time for stipulated installments payable periodically is an entire contract, and a suit for the installment for one of the periods after the employer's breach, and a recovery therein, operates as res judicata against other suits for the subsequent periodical installments. E. D. Tarbox & Bro. v. Hartenstein, 63 Tenn. 78, 1874 Tenn. LEXIS 210 (1874); E. T., V. & G. R.R. Co. v. Staub, 75 Tenn. 397, 1881 Tenn. LEXIS 132 (1881); Barnes v. Black Diamond Coal Co., 101 Tenn. 354, 47 S.W. 498, 1898 Tenn. LEXIS 73 (1898).

4. Guaranty Notes.

Where church executed series of notes secured by deed of trust and also by guaranty of individual church members to repurchase notes on default, holders of unmatured notes were not necessary parties to suit by holders of matured notes to enforce guaranty against such individual church members since the holders of unmatured notes did not have the right under the acceleration clause contained in the deed of trust to declare their notes matured and consequently full relief could be granted holders of matured notes without prejudicing rights of holders of unmatured notes who under this section would have a right to maintain an action for breach of covenant to repurchase if and when their notes should be in default. S. M. Williamson & Co. v. Ragsdale, 170 Tenn. 439, 95 S.W.2d 922, 1935 Tenn. LEXIS 150 (1936).

5. Rent Installments.

The recovery for past due installments of rent accruing at a specified monthly rental constitutes no bar to the recovery in another action for installments that subsequently fall due, as the lease contract in such case is separable, and not entire, and the provision of this section is applicable to such cases. Barnes v. Black Diamond Coal Co., 101 Tenn. 354, 47 S.W. 498, 1898 Tenn. LEXIS 73 (1898).

Collateral References. 1 Am. Jur. 2d Actions §§ 130, 131.

20-6-202. Actions on bonds.

In actions upon penal bonds or other writings for the nonperformance of any covenant or agreement contained in the penal bonds or other writings, the plaintiff may assign as many breaches as the plaintiff deems proper, and verdict and judgment may be rendered for such of the breaches as the plaintiff may prove; or, if judgment is rendered for the plaintiff on demurrer or by default, a writ of inquiry of damages shall be awarded.

Code 1858, § 2898; Shan., § 4619; Code 1932, § 8742; T.C.A. (orig. ed.), § 20-805.

NOTES TO DECISIONS

1. Allegations of Breach.

In action on official bond against constable and his sureties it was sufficient to allege generally that from time to time the constable received divers sums of money amounting to a certain sum for which he had not accounted and it was not necessary to state on what particular day or from named persons. Smith v. Wilkinson, 45 Tenn. 157, 1867 Tenn. LEXIS 110 (1867).

2. Several Breaches Assigned in Justice's Warrant.

In a suit upon an official bond, commenced before a justice, the warrant could assign several breaches, and a recovery on any one of the sustained breaches was good. Emmett v. Crawford, 78 Tenn. 21, 1882 Tenn. LEXIS 134 (1882).

Decisions Under Prior Law

1. Allegation of Execution of Bond Sued On.

Allegation that on a named date defendants by their writing obligatory sealed with their seals bound themselves to pay the plaintiff a named sum was a sufficient allegation of the execution of the bond sued on. Britton v. Thompson, 14 Tenn. 324, 14 Tenn. 325, 1834 Tenn. LEXIS 86 (1834).

Collateral References. 12 Am. Jur. 2d Bonds § 41; 61 Am. Jur. 2d Pleading § 93.

71 C.J.S. Pleading § 88.

Official bond, pleading in action on, for acts or defaults occurring after termination of office. 81 A.L.R. 68.

Part 3
Defensive Pleas

20-6-301. [Repealed.]

Compiler's Notes. Former § 20-6-301 (Code 1858, §§ 2902, 2903 (deriv. Acts 1777 (Nov.), ch. 8, § 6; 1827, ch. 74, § 2; 1849-1850, ch. 60, § 2); Shan., §§ 4623, 4624; mod. Code 1932, §§ 8751, 8752; T.C.A. (orig. ed.), § 20-903), concerning grounds for pleas in abatement, was repealed by Acts 1986, ch. 538, § 1.

20-6-302. [Obsolete.]

Compiler's Notes. Former § 20-6-302 (Code 1858, § 2904 (deriv. Acts 1849-1850, ch. 60, § 2); Shan., § 4625; Code 1932, § 8753; T.C.A. (orig. ed.), § 20-904), concerning the applicability of former § 20-6-301, was deleted as obsolete by the code commission in 2009.

20-6-303. [Repealed.]

Compiler's Notes. Former § 20-6-303 (Code 1858, § 2901 (deriv. Acts 1794, ch. 1, § 26); Shan., § 4622; Code 1932, § 8750; T.C.A. (orig. ed.), § 20-905), concerning verification of pleas in abatement, was repealed by Acts 1986, ch. 538, § 1.

20-6-304. [Repealed.]

Compiler's Notes. Former § 20-6-304 (Code 1858, § 2909 (deriv. Acts 1819, ch. 27, § 4; 1819, ch. 42, § 1); Shan., § 4630; Code 1932, § 8761; T.C.A. (orig. ed.), § 20-924), concerning sworn pleas, was repealed by Acts 1991, ch. 273, § 4.

20-6-305. [Repealed.]

Compiler's Notes. Former § 20-6-305 (Code 1858, § 2911; Shan., § 4632; Code 1932, § 8763; T.C.A. (orig. ed.), § 20-925), concerning denial on want of knowledge, was repealed by Acts 1986, ch. 538, § 1.

20-6-306. Claims for contractual attorney fees.

  1. If a plaintiff voluntarily dismisses an action while a counterclaim is pending for contractual attorney fees, and if the plaintiff does not timely recommence the action, the court, upon proper showing, may order that the counterclaimant is the prevailing party for the purpose of recovering contractual attorney fees.
  2. This section shall only apply if the contract clause providing for attorney fees applies equally to all parties to the contract.

Acts 2004, ch. 853, § 1.

Part 4
Setoff

20-6-401. Setoff by co-maker or surety.

A co-maker or surety, when sued alone, may, with the consent of the co-maker's or surety's co-maker or principal, use, by way of setoff, any of the debts or demands, held by the co-maker or principal against the plaintiff at the commencement of the action, and matured when offered in setoff, but the plaintiff may meet it in the same way as if made by the co-maker or principal who originally held the debts or demands.

Code 1858, § 2920; Shan., § 4641; mod. Code 1932, § 8770; T.C.A. (orig. ed.), § 20-1003; modified.

Cross-References. Counterclaim and cross-claim, Tenn. R. Civ. P. 13.

Textbooks. Tennessee Jurisprudence, 22 Tenn. Juris., Setoff, Recoupment and Counterclaim, §§ 2, 7.

Law Reviews.

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

NOTES TO DECISIONS

1. Debt to Principal Against Debt of Principal and Surety.

In an action against the principal and surety, a debt due to the principal alone may be set off against the plaintiff's suit. Guggenheim v. Rosenfeld, 68 Tenn. 533, 1877 Tenn. LEXIS 44 (1877).

2. Breach of Warranty to Principal Against Suit Against Surety Alone.

A surety sued alone upon a note, without joining his principal, cannot set off or recoup a claim for damages for breach of a warranty, made by the payee with the principal, without the consent of the latter. This rule is applicable at law and in equity. Phoenix Iron-Works Co. v. Rhea, 98 Tenn. 461, 40 S.W. 482, 1896 Tenn. LEXIS 240 (1897).

Collateral References. 20 Am. Jur. 2d Counterclaim, Recoupment and Setoff §§ 76-78.

71 C.J.S. Pleading §§ 168, 169.

Pleading 149.

20-6-402. Costs on equal demands.

On a plea of setoff or recoupment, if the demand of defendant equals the demand of the plaintiff, judgment for all costs is to be rendered for defendant.

Code 1932, § 8771; T.C.A. (orig. ed.), § 20-1005.

Cross-References. Costs, Tenn. R. Civ. P. 54.

Textbooks. Tennessee Jurisprudence, 22 Tenn. Juris., Setoff, Recoupment and Counterclaim, §§ 2, 11.

Collateral References. 20 Am. Jur. 2d Costs §§ 16, 20, 61.

20 C.J.S. Costs § 12; 49 C.J.S. Judgments § 568.

Costs 270.

20-6-403. Judgment molded to facts.

When there are several defendants, the verdicts and judgments, whether the pleadings by them are joint or several, shall be molded according to the facts and to meet the exigencies of the case.

Code 1858, § 2923 (deriv. Acts 1855-1856, ch. 71, § 1); Shan., § 4644; Code 1932, § 8773; T.C.A. (orig. ed.), § 20-1006.

Cross-References. Judgment according to rights of parties, § 25-1-105.

Judgments, Tenn. R. Civ. P. 54.

Textbooks. Tennessee Jurisprudence, 16 Tenn. Juris., Judgments and Decrees, § 21; 22 Tenn. Juris., Setoff, Recoupment and Counterclaim, § 13.

NOTES TO DECISIONS

1. Molding to Suit Process and Facts.

The court will so mold its judgments as to make them consistent with the leading process, and to reach the merits of the case. Cheatham v. Hodges, 7 Tenn. 177, 1823 Tenn. LEXIS 30 (1823).

2. Conflicting Liens.

In replevin suit by finance company against deputy sheriff and garage operator to recover possession of car owned by debtor the trial court properly awarded possession of car to garage owner who claimed a lien where car was in possession of garage owner though garage owner had obtained possession by means of an attachment. Securities Inv. Co. v. Armstrong, 168 Tenn. 462, 79 S.W.2d 570, 1934 Tenn. LEXIS 78 (1935).

Collateral References. 49 C.J.S. Judgments § 440.

Judgment 253(4).

Chapter 7
Continuances

20-7-101. Grounds — Timing.

Continuances are regulated by this chapter, and may always be granted by the court, upon good cause shown, in any stage of the action.

Code 1858, § 4245 (deriv. Acts 1794, ch. 1, § 26); Shan., § 6083; mod. Code 1932, § 10341; T.C.A. (orig. ed.), § 20-1101.

Cross-References. Arbitration, § 29-5-107.

Circuit courts, absence of judge, § 16-10-207.

Clerk's fee, § 8-21-401.

Court of Criminal Appeals, Tenn. R. Crim. App. 7, 15.

Textbooks. Tennessee Forms (Robinson, Ramsey and Harwell), No. 1-40-3.

Law Reviews.

Tennessee Criminal Law: An Overview of the Courts and a Compendium of Tennessee Criminal Procedure (Michael R. Tilley), 5 Mem. St. U.L. Rev. 90.

The Tennessee Court System (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 189.

The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 281.

Comparative Legislation. Continuances:

Ark.  Code § 16-63-401 et seq.

Ga. O.C.G.A. § 9-10-150 et seq.; § 17-8-20 et seq.

Ky. Rev. Stat. Ann. §§ 453.020, 453.070.

Miss.  Code Ann. §§ 9-1-9.

Mo. Rev. Stat. § 510.080 et seq.

N.C.  Gen. Stat. § 1A-1, Rule 40.

Va. Code §§ 17-25, 17-26.

Cited: Dendy v. Dendy, — S.W.3d —, 2012 Tenn. App. LEXIS 44 (Tenn. Ct. App. Jan. 20, 2012); Dendy v. Dendy, — S.W.3d —, 2012 Tenn. App. LEXIS 168 (Tenn. Ct. App. Mar. 5, 2012).

NOTES TO DECISIONS

1. Judicial Discretion.

Where the trial judge refused to allow a continuance for the purpose of securing other counsel and defendant was already represented by counsel, the judge did not abuse his discretion. Jones v. State, 548 S.W.2d 329, 1976 Tenn. Crim. App. LEXIS 329 (Tenn. Crim. App. 1976).

In divorce proceedings, denial of a wife's motion for a continuance that was supported by a doctor's affidavit was not an abuse of discretion as a medical excuse did not entitle the wife to a continuance as a matter of right. Naantaanbuu v. Naantaanbuu, — S.W.3d —, 2011 Tenn. App. LEXIS 58 (Tenn. Ct. App. Feb. 14, 2011).

Trial court erred by not granting a continuance and instead proceeding with a trial on the merits because the counsel for one of the litigants did not appear in court, as the counsel had been recently suspended from the practice of law, a fact unknown to the litigant whom counsel represented until the litigant appeared for trial. The court's decision not to continue the case caused an injustice to the litigant, who was unaware of the trial date until the morning of the trial and was surprised to proceed without counsel at the trial. Tidwell v. Burkes, — S.W.3d —, 2016 Tenn. App. LEXIS 486 (Tenn. Ct. App. July 8, 2016).

2. Request Properly Denied.

Plaintiff's third motion for a continuance under Conn. Gen. Stat. § 20-7-101 was properly denied as: (1) Plaintiff's inaction had delayed the trial; (2) Continuances were not required for medical excuses; (3) The note from a physician's assistant was insufficient as it was not signed by plaintiff's physician, and did not explain the type of testing plaintiff was undergoing, how invasive that testing was, or when he would be able to attend the trial; and (4) Plaintiff had not diligently prosecuted the case. Howell v. Ryerkerk, 372 S.W.3d 576, 2012 Tenn. App. LEXIS 156 (Tenn. Ct. App. Mar. 9, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 430 (Tenn. June 19, 2012).

While there were logistical difficulties for counsel in Tennessee to consult with the father, who was incarcerated in Florida, the record did not show any basis upon which to conclude that the trial court abused its discretion in denying a continuance of the second hearing, particularly because there was a hearing held on a third day and the father filed no motion or sought any relief or specific accommodation between the second and third hearing days; the father was not deprived of his right to due process of law. In re Elizabeth D., — S.W.3d —, 2016 Tenn. App. LEXIS 706 (Tenn. Ct. App. Sept. 23, 2016).

In a termination of parental rights case, the trial court did not err in denying the father's motion to continue the trial because the transcript reflected that the proceedings were transmitted via telephone to the father, who was in prison; the court instructed the father to let the court know if for any reason he could not hear; the father participated and was able to respond to questions as they were asked; the father's counsel was present and participated fully in the proceeding; and the father was able to communicate with the court when he was unable to hear so that the witnesses or the attorneys could repeat what they had said, reposition the telephone, and/or speak more loudly. In re Lydia N.-S., — S.W.3d —, 2017 Tenn. App. LEXIS 55 (Tenn. Ct. App. Jan. 31, 2017).

In a case concerning a mother's petition to modify an agreed order granting custody of her children to their maternal grandparents, the trial court's decision to deny the grandparents'  motion for a continuance to secure counsel did not constitute an abuse of discretion. The appellate court's review of the record did not leave it convinced that the grandparents, if granted the continuance, would have been able to produce additional evidence or witnesses to disprove the mother's claims. Holley v. Ortiz, — S.W.3d —, 2017 Tenn. App. LEXIS 126 (Tenn. Ct. App. Feb. 24, 2017).

Denial of the mother's motion for a continuance was not an abuse of discretion; the documents that she claimed necessitated a continuance were not germane to the issues in question and were only relevant to the one ground that was reversed on appeal, making the documents irrelevant. In re Charles A., — S.W.3d —, 2017 Tenn. App. LEXIS 194 (Tenn. Ct. App. Mar. 24, 2017).

Collateral References. 17 Am. Jur. 2d Continuances §§ 1-46.

17 C.J.S. Continuances §§ 46-55.

Admissions to prevent continuance sought to secure testimony of absent witness in civil case. 15 A.L.R.3d 1272.

Admissions to prevent continuance sought to secure testimony of absent witness in criminal case. 9 A.L.R.3d 1180.

Amendment of pleading before trial with respect to amount or nature of relief sought as ground for continuance. 56 A.L.R.2d 650.

Amendment of pleading with respect to parties or their capacity as ground for continuance. 67 A.L.R.2d 477.

Appearance to make application for continuance, or order in that regard, as waiver of objection to jurisdiction for lack of personal service. 81 A.L.R. 166.

Continuance of Case Because of Illness of Expert Witness. 18 A.L.R.6th 509.

Continuance of civil case because of illness or death of counsel. 67 A.L.R.2d 497.

Continuance of civil case because of illness or death of party. 68 A.L.R.2d 470.

Continuance of criminal case because of illness of accused. 66 A.L.R.2d 232.

Continuance of criminal case because of illness or death of counsel. 66 A.L.R.2d 267.

Counsel's absence because of attendance on legislature, as ground for continuance. 49 A.L.R.2d 1073.

Federal control of public utilities as ground for postponement of trial. 4 A.L.R. 1684, 8 A.L.R. 969, 10 A.L.R. 956, 11 A.L.R. 1450, 14 A.L.R. 234, 19 A.L.R. 678, 52 A.L.R. 296.

Hostile sentiment or prejudice as ground for continuance in civil case. 68 A.L.R.2d 540.

Pendency of criminal prosecution as ground for continuance or postponement of civil action involving facts or transactions upon which prosecution is predicated. 123 A.L.R. 1453.

Pendency of criminal prosecution as ground for continuance or postponement of civil action involving facts or transactions upon which prosecution is predicated — State cases. 37 A.L.R.6th 511.

Physical condition or conduct of party, his family, friends, or witnesses during trial, tending to arouse sympathy of jury, as ground for continuance. 131 A.L.R. 323.

Prejudicial effect, in civil case, of denial of continuance to call nonappearing witness whom adversary had been expected to call. 39 A.L.R.2d 1314.

Time during or after civil trial at which court may entertain or properly grant or deny motion for continuance of trial. 112 A.L.R. 395.

Typewriting, evidence on question of continuity of. 106 A.L.R. 733.

Waiver of right to dismissal because of plaintiff's failure to furnish security for costs by application for continuance. 8 A.L.R. 1528.

War conditions as ground for continuance of pending litigation. 137 A.L.R. 1343, 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.

Withdrawal, discharge, or substitution of counsel in criminal case as ground for continuance. 73 A.L.R.3d 725.

Withdrawal or discharge of counsel in criminal case as ground for continuance. 73 A.L.R.3d 725.

Pretrial procedure 714-721.

20-7-102. Consent of parties.

Any cause may be continued by mutual consent of the parties when approved by the court, or on sufficient cause shown by affidavit.

Acts 1933, ch. 137, § 2; C. Supp. 1950, § 8790.1; T.C.A. (orig. ed.), § 20-1102.

Law Reviews.

The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 281.

Cited: Dendy v. Dendy, — S.W.3d —, 2012 Tenn. App. LEXIS 168 (Tenn. Ct. App. Mar. 5, 2012).

NOTES TO DECISIONS

Decisions Under Prior Law

1. Discretion of Trial Court.

The granting or refusing of continuances, both in criminal and civil cases, and in the chancery and circuit courts, rests largely in the sound discretion of the trial court, a discretion which the appellate or Supreme Court will not readily revise or interfere with, except in a clear case of great abuse of the discretion. Hammonds v. Kemer, 4 Tenn. 145, 1816 Tenn. LEXIS 42 (1816); Cornwell v. State, 8 Tenn. 147, 1827 Tenn. LEXIS 26 (1827); Rhea v. State, 18 Tenn. 258, 1837 Tenn. LEXIS 16 (1837); Goodman v. State, 19 Tenn. 195, 1838 Tenn. LEXIS 47 (1838); Todd v. Wiley, 22 Tenn. 576, 1842 Tenn. LEXIS 149 (1842); Jarnagin v. Atkinson, 23 Tenn. 470, 1844 Tenn. LEXIS 140 (1844); Knight v. State, 24 Tenn. 599, 1845 Tenn. LEXIS 143 (1845); Nelson v. State, 32 Tenn. 482, 1852 Tenn. LEXIS 100 (1852); Pitts v. Gilliam, 38 Tenn. 549, 1858 Tenn. LEXIS 224 (Tenn. Dec. 1858); Garber v. State, 44 Tenn. 161, 1867 Tenn. LEXIS 25 (1867); Cheek v. Merchants Nat'l Bank, 56 Tenn. 489, 1872 Tenn. LEXIS 165 (1872); Walt v. Walsh, 57 Tenn. 314, 1872 Tenn. LEXIS 427 (1872); Douglass v. Blakemore, 59 Tenn. 564, 1873 Tenn. LEXIS 112 (1873); Rexford v. Pulley, 63 Tenn. 364, 1874 Tenn. LEXIS 264 (1874); Porter v. State, 71 Tenn. 496, 1879 Tenn. LEXIS 105 (1879); Womack v. State, 74 Tenn. 146, 1880 Tenn. LEXIS 221 (1880); State v. Rigsby, 74 Tenn. 554, 1880 Tenn. LEXIS 291 (1880); State v. Poe, 76 Tenn. 647, 1881 Tenn. LEXIS 57 (1881); Jones v. State, 78 Tenn. 585, 1882 Tenn. LEXIS 228 (1882); Fox v. State, 111 Tenn. 154, 76 S.W. 815, 1903 Tenn. LEXIS 15 (1903); Shoun v. State, 111 Tenn. 166, 78 S.W. 91, 1903 Tenn. LEXIS 16 (1903); Stockley v. Cissna, 119 Tenn. 135, 104 S.W. 792, 1907 Tenn. LEXIS 5 (1907).

Under the practice existing prior to the adoption of this section, the reception of an answer, after a bill had been taken pro confesso, and the giving of further delay for the hearing, were discretionary and allowable upon good cause shown, and the court could allow the one and refuse the other. Scales v. Nichols, 4 Tenn. 228, 4 Tenn. 229, 1817 Tenn. LEXIS 16 (1817).

The Supreme Court will interfere with the exercise of judicial discretion by the inferior court, when it is not properly employed, and when, without interference, injustice will be done. Cheek v. Merchants Nat'l Bank, 56 Tenn. 489, 1872 Tenn. LEXIS 165 (1872).

Continuances rest in the sound discretion of the trial judge, and that discretion should always be exercised so as to secure as speedy a settlement of the litigation as may be consistent with the orderly and correct disposition of business and administration of justice; and no continuance ought to be allowed unless it be made clearly to appear to the court that it is necessary for the attainment of justice. Fox v. State, 111 Tenn. 154, 76 S.W. 815, 1903 Tenn. LEXIS 15 (1903); Stockley v. Cissna, 119 Tenn. 135, 104 S.W. 792, 1907 Tenn. LEXIS 5 (1907).

2. Sufficient Cause by Affidavits.

3. —Affidavit — Necessity.

Application for a continuance on behalf of the state must be supported by an affidavit showing cause. State v. Markham, 1 Tenn. 66, 1884 Tenn. LEXIS 1 (1884).

A continuance will not be granted, except upon affidavit showing good cause, and then only upon terms. Hart v. Scruggs, 1 Cooper's Tenn. Ch. 1 (1872).

There is no error in refusing to continue the hearing or argument on a motion for a new trial, upon the application of the defendants in a capital case, without affidavit showing cause, and there is no error in refusing an hour's time to prepare such affidavit, unless some good ground is stated for so long a time. Barnard v. State, 88 Tenn. 183, 12 S.W. 431, 1889 Tenn. LEXIS 41 (1889).

An application for a continuance by the defendant in a criminal case is properly disallowed, when not supported by an affidavit. Mitchell v. State, 92 Tenn. 668, 23 S.W. 68, 1893 Tenn. LEXIS 22 (1893).

Where the defendant, when the cause was called for trial, asked for a continuance because no issue had been taken on his plea of the statute of limitations, it was not error for the court to direct a formal joinder of issue upon the plea, which was done, and to refuse a continuance without affidavit showing cause, especially where it does not appear, either by affidavit for a continuance or for a new trial, that any injury resulted from the court's action. Morgan v. Duffy, 94 Tenn. 686, 30 S.W. 735, 1895 Tenn. LEXIS 53 (1895).

4. —Contents of Affidavits.

The absence of the defendant in a civil suit, on account of sickness, is a ground for a continuance, where it appears from the affidavit of his attorney that he is a material witness for his own defense, and it is not necessary that he be subpoenaed as a witness. Douglass v. Blakemore, 59 Tenn. 564, 1873 Tenn. LEXIS 112 (1873).

There is no error in refusing the defendant, in a felony case, a continuance upon affidavit for the absence of witnesses whose testimony he desired, when he does not deny his guilt or indicate any defense to the charge, either in his affidavit or upon the trial. Crane v. State, 94 Tenn. 86, 28 S.W. 317, 1894 Tenn. LEXIS 28 (1894); Fox v. State, 111 Tenn. 154, 76 S.W. 815, 1903 Tenn. LEXIS 15 (1903).

An application for continuance of a murder case is properly denied, although at a special term, where the affidavit fails to disclose the facts that the absent witness is expected to prove. Leach v. State, 99 Tenn. 584, 42 S.W. 195, 1897 Tenn. LEXIS 69 (1897).

An affidavit in support of an application for a continuance on account of absent witnesses, whether offered at the first or a subsequent trial term, should be special and state the names and residences of the witnesses, and the facts expected to be proved by each of them, in addition to the usual requisites of such affidavits, so that the court may judge whether the evidence desired is relevant, competent, and material. Fox v. State, 111 Tenn. 154, 76 S.W. 815, 1903 Tenn. LEXIS 15 (1903); Shoun v. State, 111 Tenn. 166, 78 S.W. 91, 1903 Tenn. LEXIS 16 (1903).

Where a continuance was sought on the ground of absence of a witness, but according to the affidavit his testimony would only have been cumulative, the court was justified in refusing the continuance. Franer v. English, 8 Tenn. App. 121, — S.W.2d —, 1928 Tenn. App. LEXIS 117 (Tenn. Ct. App. 1928).

5. —Affidavit by Whom.

Affidavit for continuance may be made by any one, without stating that he is the agent of the applicant, so that the court is satisfied. Guyer v. Cox, 1 Tenn. 184, 1805 Tenn. LEXIS 24 (1805).

6. —Popular Prejudice.

Rules as to continuance on ground of popular excitement or prejudice. Caldwell v. State, 164 Tenn. 325, 48 S.W.2d 1087, 1931 Tenn. LEXIS 37 (1932); Reagan v. McBroom, 164 Tenn. 476, 51 S.W.2d 995, 1931 Tenn. LEXIS 46 (1931).

7. —False Affidavit.

If a continuance is refused upon an affidavit alleging sufficient grounds for a continuance, but upon the trial it is made to appear that the affidavit was false and fabricated, the appellate court will not reverse the case. Porter v. State, 71 Tenn. 496, 1879 Tenn. LEXIS 105 (1879); Womack v. State, 74 Tenn. 146, 1880 Tenn. LEXIS 221 (1880).

8. Continuance Denied — Applicant Withdrawing.

Where the court properly refused to grant a second continuance, on account of the absence of a certain witness, neither the party applying therefor, nor his counsel, could prevent a trial of the case by withdrawing from the courtroom and refusing to introduce any testimony. Larus v. Bank of Commerce & Trust Co., 149 Tenn. 126, 257 S.W. 94, 1923 Tenn. LEXIS 87 (1923).

Where attorney in criminal case for defendant asked continuance, and, same being refused, withdrew from the case and the court appointed another who proceeded to trial without asking for continuance, there was no error in not granting a continuance. Smith v. State, 159 Tenn. 674, 21 S.W.2d 400, 1929 Tenn. LEXIS 29 (1929), overruled, State v. Irvin, 603 S.W.2d 121, 1980 Tenn. LEXIS 475 (Tenn. 1980), overruled in part, State v. Irvin, 603 S.W.2d 121, 1980 Tenn. LEXIS 475 (Tenn. 1980).

Collateral References. 17 Am. Jur. 2d Continuances § 1.

17 C.J.S. Continuances § 11.

20-7-103. Terms on which granted.

The court, in so entering or in granting continuances, may impose terms upon the party at whose instance the cause has been continued, by making the party pay costs, or otherwise, as may best further the progress of the cause and the ends of justice.

Code 1858, § 2942 (deriv. Acts 1779 (Apr.), ch. 4, § 5); Shan., § 4663; Code 1932, § 8791; T.C.A. (orig. ed.), § 20-1103.

Textbooks. Tennessee Jurisprudence, 7 Tenn. Juris., Continuances, § 16.

NOTES TO DECISIONS

1. Continuances by Consent.

Continuances, whether by consent or otherwise, are subject to such terms in regard to the payment of costs. Where causes are continued by consent, a much greater latitude will be allowed than where either party is pressing for trial. Berger v. Harrison, 1 Tenn. 483, 1809 Tenn. LEXIS 38 (1809); Hart v. Scruggs, 1 Cooper's Tenn. Ch. 1 (1872).

2. Attorney Fees.

In a divorce proceeding, the trial court's award of the husband's attorney fees related to granting the wife a continuance of trial was permitted by T.C.A. § 20-7-103; the attorney filed an affidavit setting forth the time spent preparing for the previously scheduled trial and included the court reporter's attendance fee incurred on that date. Armstrong v. Armstrong, — S.W.3d —, 2008 Tenn. App. LEXIS 132 (Tenn. Ct. App. Mar. 5, 2008).

Collateral References. 17 Am. Jur. 2d Continuances § 50.

17 C.J.S. Continuances § 104.

Pretrial procedure 725.

20-7-104. Judgment for costs.

If a continuance is granted on payment of costs, the court shall enter judgment and award execution for the costs.

Code 1858, § 2943 (deriv. Acts 1829, ch. 33, § 4); Shan., § 4664; Code 1932, § 8792; T.C.A. (orig. ed.), § 20-1104.

NOTES TO DECISIONS

1. Nature of Judgment for Costs.

The incidental judgment rendered for the costs, as the terms of a continuance, when once rendered, is necessarily final and distinct from the main judgment. Ross v. McCarty, 22 Tenn. 169, 1842 Tenn. LEXIS 58 (1842).

Collateral References. 17 C.J.S. Continuances § 105.

Costs 156.

20-7-105. Death of party during continuance.

The death of a party shall not prevent a trial at the term at which the cause is revived.

Code 1858, § 2944; Shan., § 4665; mod. Code 1932, § 8793; T.C.A. (orig. ed.), § 20-1105.

20-7-106. Member of general assembly as attorney, party or witness in case.

Upon the motion of a member of the general assembly qualified to make such motion under this section, or the member's attorney or representative, any court, constituted under the laws of this state, any administrative board or commission or other agency authorized to conduct hearings shall grant a continuance or postponement of the proceedings, at any stage of the action, if it is shown that an attorney, party or material witness is a member of the general assembly and that:

  1. The general assembly is in annual regular session or special session; or
  2. The attorney, party or material witness would be required to be absent from any meeting of a legislative committee while the general assembly is not in session if a continuance is not granted.

Acts 1971, ch. 333, § 1; T.C.A., § 20-1106; Acts 1981, ch. 62, § 2.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 24.90.

Law Reviews.

Tennessee Criminal Law: An Overview of the Courts and a Compendium of Tennessee Criminal Procedure (Michael R. Tilley), 5 Mem. St. U.L. Rev. 90.

Attorney General Opinions. The department of labor is not prevented by T.C.A. § 20-7-106 from scheduling a benefit review conference on a case where the attorney is a legislator and the general assembly is in session, OAG 02-134 (12/19/02).

NOTES TO DECISIONS

1. Judicial Discretion.

Where general assembly member as counsel for defendant in suit for specific performance did appear and did argue his motion for post-trial relief despite the filing of a motion to stay all proceedings in the action, and where counsel took no steps to seek appellate review of the trial court's order overruling the motion for a new trial, the trial court did not abuse its discretion in refusing to grant a stay or continuance of a hearing on the post-trial motion. McGhee v. Moore, 537 S.W.2d 697, 1976 Tenn. LEXIS 495 (Tenn. 1976).

2. Invocation of Privilege.

The statutory privilege set forth in this section is not self-effectuating. It must be properly raised by the one who relies upon it, who must establish that he qualifies under the terms and conditions that are set forth in the statute itself. Ecoff v. Murphy, 652 S.W.2d 901, 1982 Tenn. App. LEXIS 456 (Tenn. Ct. App. 1982).

3. Motion Insufficient.

Defendant's statement in written motion, to the effect that he was a member of the legislature, was unable to try case in one day, and that he needed a continuance, fell short of the statutory minimum which would be necessary to bring defendant within the terms of this section. Ecoff v. Murphy, 652 S.W.2d 901, 1982 Tenn. App. LEXIS 456 (Tenn. Ct. App. 1982).

Collateral References. Pretrial Procedure 717, 718.

Chapter 8
Trial Dockets

20-8-101. Priority of causes.

  1. The clerk shall enter causes upon the clerk's trial docket in the order in which they become ready for trial, giving the cause first ready for trial, either by due course of law or consent of parties, priority of position on the docket.
  2. If a number of causes become ready for trial at the same time, they shall be entered on the docket in the order of their commencement.

Code 1858, §§ 2945, 2946; Shan., §§ 4666, 4667; Code 1932, §§ 8794, 8795; T.C.A. (orig. ed.), § 20-1207.

Cross-References. Setting cases for trial, Tenn. R. Civ. P. 40.

Textbooks. Tennessee Forms (Robinson, Ramsey and Harwell), No. 1-40-2.

Tennessee Jurisprudence, 24 Tenn. Juris., Trial, § 2.

Law Reviews.

Judicial Reform at the Lowest Level: A Model Statute for Small Claims Courts, Part III, 28 Vand. L. Rev. 747.

The Tennessee Court System (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 189.

The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 281.

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 241.

Trial, 4 Mem. St. U.L. Rev. 335.

Comparative Legislation. Dockets:

Ala. R.C.P. 79.

Ga. O.C.G.A. § 17-8-1 et seq.

Mo. Rev. Stat. § 510.070.

N.C. Gen. Stat. § 7A-42.

Va. Code §§ 8.01-331 — 8.01-335.

Cited: Louisville & N. R. Co. v. Timmons, 116 Tenn. 29, 91 S.W. 1116, 1905 Tenn. LEXIS 3 (1906).

NOTES TO DECISIONS

1. Unlitigated Cases.

The court may call the docket on the first day of the term for the disposal of unlitigated and undefended causes, and the exercise of such discretion and practice cannot be assigned as error in the supreme court. Chrisman v. Curle, 18 Tenn. 488, 1837 Tenn. LEXIS 63 (1837); Lynn v. Polk, 76 Tenn. 328, 1881 Tenn. LEXIS 17 (1881).

2. Time Until Next Term to File Declaration — Effect.

Where, at the instance of the plaintiff, time to file declaration was granted until the second term, such term is the return term, and not the trial term, as to defendant, and there cannot be a trial at that term, without his consent. Elliot v. Solzkotter, 36 Tenn. 581, 1857 Tenn. LEXIS 60 (1857).

3. Special Term.

4. —Writ of Inquiry as to Damages.

Where judgment was taken by default, and a writ of inquiry of damages ordered to be executed at the next term, without more, it may be properly executed at an intervening special term. Hall v. Mount, Hall & Co., 43 Tenn. 73, 1860 Tenn. LEXIS 1 (1866); Memphis & O. R. R. Co. v. Dowd, 56 Tenn. 179, 1872 Tenn. LEXIS 123 (1872).

5. —Jurisdiction.

A special term of the circuit court, held between the appearance term of a cause and the next regular term, is not the trial term thereof; and a verdict and judgment rendered at such special term, without consent, is reversible error, for which a new trial will be granted. McKinley v. Beasley, 37 Tenn. 170, 1857 Tenn. LEXIS 100 (1857).

6. Appearance Term by Agreement.

Where, by the agreement of the parties, a certain term was made the appearance term, the cause did not stand for trial until the next regular term thereafter. McKinley v. Beasley, 37 Tenn. 170, 1857 Tenn. LEXIS 100 (1857).

7. Special Term After General Continuance.

A general continuance, or a continuance to the next term, makes the cause triable at an intervening special term; but this result may be obviated by a special continuance to the regular term. Hall v. Mount, Hall & Co., 43 Tenn. 73, 1860 Tenn. LEXIS 1 (1866).

Collateral References. 75 Am. Jur. 2d Trial § 25.

21 C.J.S. Courts § 172; 88 C.J.S. Trial § 31.

Trial 13.1-13.5.

20-8-102. Style of case not to be changed by clerk.

The clerk of the court shall not change the style of any cause, or papers in the cause, without permission of the chancellor or judge presiding, after the cause has been docketed.

Acts 1879, ch. 114, § 1; Shan., § 4675; Code 1932, § 8801; T.C.A. (orig. ed.), § 20-1208.

20-8-103. Order of trial.

Causes, except those given preference by law, thus docketed shall be tried and disposed of in their order, unless the parties consent to a different arrangement or rules of practice otherwise provide.

Code 1858, § 2947; Shan., § 4668; mod. Code 1932, § 8796; T.C.A. (orig. ed.), § 20-1209.

Cross-References. Setting cases for trial, Tenn. R. Civ. P. 40.

Textbooks. Tennessee Jurisprudence, 24 Tenn. Juris., Trial, § 2.

Law Reviews.

The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 281.

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 241.

NOTES TO DECISIONS

1. Provisions Directory.

The provision that the causes should be tried and disposed of in their order on the docket is not imperative, but directory. Van Brocklin v. Wolcott, Smith & Co., 52 Tenn. 743, 1871 Tenn. LEXIS 306 (1871).

While this provision is not imperative, but leaves the judge to exercise a proper discretion, yet it is so far obligatory that an arbitrary departure from it resulting in the defeat of justice is error. Memphis & O. R. R. Co. v. Dowd, 56 Tenn. 179, 1872 Tenn. LEXIS 123 (1872).

2. Consolidation of Cases — Discretion.

Question as to whether two actions arising from same collision should be tried together was matter within sound discretion of circuit court. Herstein v. Kemker, 19 Tenn. App. 681, 94 S.W.2d 76, 1936 Tenn. App. LEXIS 64 (Tenn. Ct. App. 1936).

Collateral References. 75 Am. Jur. 2d Trial § 25.

88 C.J.S. Trial § 31.

Trial 15.

20-8-104. Apportionment of causes.

The court may, in its discretion, direct the clerk to apportion the causes for as many days of the term as may be deemed necessary for their trial and disposition. This apportionment shall not affect legal priority.

Code 1858, § 2948; Shan., § 4672; mod. Code 1932, § 8800; T.C.A. (orig. ed.), § 20-1210.

Law Reviews.

The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 281.

NOTES TO DECISIONS

1. Disposing of Case Out of Order — Effect.

Where, by an established practice, the causes on the trial docket are apportioned, and set for certain days or weeks, and, contrary to such apportionment, a cause is called up out of its order, and a writ of inquiry executed, against the protest of the defendant, who was taken by surprise, and in consequence failed to have his witnesses present, the supreme court will reverse for this error. Fanning v. Fly, 42 Tenn. 486, 1865 Tenn. LEXIS 91 (1865); Memphis & O. R. R. Co. v. Dowd, 56 Tenn. 179, 1872 Tenn. LEXIS 123 (1872).

Collateral References. 88 C.J.S. Trial § 32.

20-8-105. Public causes advanced on docket.

It is the duty of the court to advance upon the docket causes the decision of which directly involves questions concerning the public revenues, whether of state, county or municipality, questions concerning the boundaries of counties, towns or cities, or concerning public officers as to their eligibility, qualifications or appointment, or their lawful functions, so that such cause may be heard and determined with the least delay consistent with the proper investigation of such causes upon their merits.

Acts 1871, ch. 125, § 1; 1879, ch. 79, § 4; Shan., § 4671; mod. Code 1932, § 8799; T.C.A. (orig. ed.), § 20-1211.

Textbooks. Tennessee Jurisprudence, 18 Tenn. Juris., Mandamus, § 25.

Law Reviews.

The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 281.

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 241.

Trial, 4 Mem. St. U.L. Rev. 335.

Collateral References. 75 Am. Jur. 2d Trial §§ 25, 26.

88 C.J.S. Trial § 33.

Appeal and Error 811.

20-8-106. Time for trial of cases involving state.

The trial judge of any of the courts of law or equity shall appoint any time that the judge deems proper for the trial of any civil cause in which the state is a party in interest, directly or in any other way. The cause may be so specifically set for trial, without reference to its relative position on the docket.

Acts 1867-1868, ch. 67, §§ 6, 7; Shan., §§ 4669, 4670; mod. Code 1932, §§ 8797, 8798; T.C.A. (orig. ed.), § 20-1212.

Cross-References. Setting cases for trial, Tenn. R. Civ. P. 40.

Law Reviews.

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 241.

The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 281.

Trial, 4 Mem. St. U.L. Rev. 335.

NOTES TO DECISIONS

1. Nature and Scope of Section.

This section is mandatory, and makes that a duty of the court, which was before but a matter of discretion in the class of cases provided for; but it does not affect the inherent power of the court to regulate its business and to advance on its dockets causes of public interest not named in it. This section applies to the supreme court as well as to the lower court. Lynn v. Polk, 76 Tenn. 328, 1881 Tenn. LEXIS 17 (1881).

Chapter 9
Trial

Part 1
Recording

20-9-101. Appointment of court reporter.

Upon the trial of any cause or proceeding in any court of record, upon the request of either party, the judge of such court shall appoint a competent court reporter, who shall first be duly sworn to make a true, impartial and complete stenographic report of all the oral testimony given in trial of the cause or proceeding, as well as the rulings of the judge.

Acts 1887, ch. 217, § 1; Shan., § 4695; Code 1932, § 8825; T.C.A. (orig. ed.), § 20-1304; Acts 1994, ch. 897, § 1.

Textbooks. Tennessee Jurisprudence, 8 Tenn. Juris., Costs, § 32; 11 Tenn. Juris., Equity, § 71.

Cited: Burns v. Nashville, 142 Tenn. 541, 221 S.W. 828, 1919 Tenn. LEXIS 80 (1920); Slaughter v. Slaughter, 922 S.W.2d 115, 1995 Tenn. App. LEXIS 806 (Tenn. Ct. App. 1995); Joelton Planning & Zoning Comm. v. Metro. Gov't of Nashville & Davidson County, — S.W.3d —, 2009 Tenn. App. LEXIS 867 (Tenn. Ct. App. Dec. 21, 2009).

NOTES TO DECISIONS

1. Chambers Conferences.

Where a court reporter was not permitted to take down all of the proceedings of this case including the in chambers conference the appellate court has no way of knowing what is lacking in the record because of the absence of the court reporter during part of the proceedings, and is compelled to reverse the judgment and remand for a new trial. Warren v. Warren, 731 S.W.2d 908, 1985 Tenn. App. LEXIS 3308 (Tenn. Ct. App. 1985), superseded by statute as stated in, Kent v. Kent, — S.W.2d —, 1993 Tenn. App. LEXIS 678 (Tenn. Ct. App. Oct. 27, 1993).

Collateral References.

Right to have reporter's notes read to jury. 50 A.L.R.2d 176.

Trial 23.

20-9-102. [Repealed.]

Compiler's Notes. Former § 20-9-102 (Acts 1887, ch. 217, §§ 1, 3; Shan., § 4696; Code 1932, § 8826; T.C.A. (orig. ed.), § 20-1305), concerning stenographer's report as bill of exceptions, was repealed by Acts 1986, ch. 538, § 1. See T.R.A.P. 24.

20-9-103. Compensation of court reporter.

The party alone at whose instance the court reporter was employed shall be responsible for the court reporter's compensation for the work done by the court reporter.

Acts 1887, ch. 217, § 2; Shan., § 4697; Code 1932, § 8827; T.C.A. (orig. ed.), § 20-1306; Acts 1994, ch. 897, § 1.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 24.33.

Tennessee Jurisprudence, 8 Tenn. Juris., Costs, § 32.

Cited: State v. Hurley, 712 S.W.2d 493, 1986 Tenn. Crim. App. LEXIS 2601 (Tenn. Crim. App. 1986); Slaughter v. Slaughter, 922 S.W.2d 115, 1995 Tenn. App. LEXIS 806 (Tenn. Ct. App. 1995).

NOTES TO DECISIONS

1. Mistrial — Cost of Transcribing Notes.

Where a stenographer is employed at the request of a party, and there is a mistrial, the opposite party is not entitled to a transcription of the stenographer's notes at the cost of the party at whose instance he was employed, and the court has no authority to tax such cost to the party so employing. Railroad v. Ray, 101 Tenn. 1, 46 S.W. 554, 1898 Tenn. LEXIS 26 (1898).

2. Chancellor Ordering Transcript.

The chancellor erred in rendering decrees against all the defendants for the cost of a transcript of a portion of the testimony furnished by the court reporter to the chancellor, over exception of defendants, and in taxing the cost of the same as part of the cost of the cause. Burns v. Nashville, 142 Tenn. 541, 221 S.W. 828, 1919 Tenn. LEXIS 80 (1920).

Collateral References. Costs 254(5).

20-9-104. Tape recording of proceedings.

It is lawful for attorneys representing parties in proceedings in any of the courts of this state to use tape recorders as an aid in making notes of the proceedings.

Acts 1972, ch. 684, § 1; T.C.A., § 20-1331.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 7.11, 7.15, 24.33.

Law Reviews.

Criminal Law in Tennessee in 1972 — A Critical Survey — IV. Procedure (Joseph G. Cook), 40 Tenn. L. Rev. 583.

Cited: Houston v. Scott, — S.W.3d —, 2012 Tenn. App. LEXIS 33 (Tenn. Ct. App. Jan. 17, 2012).

Collateral References.

Use in state court by counsel or party of tape recorder or other electronic device to make transcript of criminal trial proceedings. 67 A.L.R.3d 1013.

Part 2
Jurors

20-9-201. Calling names of jurors.

In all civil causes, before the jury is sworn, the clerk shall call over the names of the jury in the panel, in the presence and hearing of the parties and their counsel.

Code 1858, § 2961 (deriv. Acts 1803, ch. 2, § 5); Shan., § 4686; Code 1932, § 8813; T.C.A. (orig. ed.), § 20-1307.

Cross-References. Challenge of jurors, §§ 22-3-10222-3-105.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 25.42.

Tennessee Jurisprudence, 17 Tenn. Juris., Jury, § 36.

NOTES TO DECISIONS

1. Writ of Error Coram Nobis — Oath of Jury.

Oath of jury in a writ of error coram nobis case to try the “matters in dispute” is quite as appropriate a form as to have sworn them to try the issue joined. Sharp v. Harrison, 57 Tenn. 573, 1873 Tenn. LEXIS 265 (1873).

2. Appeal from Justice — Oath of Jury.

Oath of jury in appeal from justice of the peace (now general sessions judge) should be to try the matter in dispute instead of the issue as in other cases. M'Cutchen v. Owen, 1 Tenn. 365, 1808 Tenn. LEXIS 53 (1808).

20-9-202. Delays in trial — Other business.

Pending the trial of any cause in any court at intervals in which jurors are being summoned, or the progress of the trial is otherwise delayed, the court may proceed with the other business of the court, but so as not to delay the cause on trial.

Acts 1870, ch. 20, § 1; Shan., § 4685; Code 1932, § 8812; T.C.A. (orig. ed.), § 20-1308.

Collateral References. 88 C.J.S. Trial § 45.

Absence of judge from courtroom during trial of civil case. 25 A.L.R.3d 637.

Trial 26.

20-9-203. Disability of juror.

  1. If, after the jury is impaneled, and before verdict, a juror becomes sick or otherwise disabled so as to be unable to perform jury duty, the juror may be discharged by the court. In such case, unless otherwise arranged by the parties, the vacancy may be filled and the trial commenced anew, or the court may, in its discretion, order the jury to be discharged and a new one impaneled.
  2. In case of the disability of a juror or jurors, under this section, the cause may be tried and determined, by consent of parties, by the remaining jurors.

Code 1858, §§ 2962, 2963 (deriv. Acts 1817, ch. 99, § 1); Shan., §§ 4687, 4688; Code 1932, §§ 8814, 8815; T.C.A. (orig. ed.), § 20-1309.

Cross-References. Alternate jurors, Tenn. R. Civ. P. 47.02.

Textbooks. Tennessee Jurisprudence, 10 Tenn. Juris., Double Jeopardy, § 7.

Law Reviews.

Criminal Law and Procedure (William D. Warren), 6 Vand. L. Rev. 1179.

NOTES TO DECISIONS

1. Section Merely Directory and Cumulative.

This section authorizing substitution of a juror, is not mandatory but directory only; it is not exclusive, but merely cumulative. Etter v. State, 185 Tenn. 218, 205 S.W.2d 1, 1947 Tenn. LEXIS 323 (1947).

2. Juror Substituted.

After trial began, a juror was excused on account of illness and another was called in his place, and defendant challenged him peremptorily, which was disallowed by the court, the defendant having exhausted his peremptory challenges prior thereto. As it was a civil suit, there was no error. Bruce v. Beall, 100 Tenn. 573, 47 S.W. 204, 1898 Tenn. LEXIS 18 (1898).

Collateral References. 47 Am. Jur. 2d Jury § 176; 76 Am. Jur. 2d Trial § 1072.

50 C.J.S. Juries § 123.

Inattention of juror from sleepiness or other cause as ground for reversal or new trial. 88 A.L.R.2d 1275.

Part 3
Arguments

20-9-301. Opening statements — Right of parties to make.

In all actions of a civil or criminal nature tried before a jury, all parties to the action shall have the right prior to the presentation of any evidence in the case to make an opening statement to the court and jury setting forth their respective contentions, views of the facts and theories of the lawsuit.

Acts 1969, ch. 90, § 1; T.C.A., § 20-1329.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 26.30, 26.32.

Law Reviews.

Technology and Opening Statements: A Bridge to the Virtual Trial of the Twenty-First Century? 67 Tenn. L. Rev. 523 (2000).

The Timing of Opinion Formation by Jurors in Civil Cases: An Empirical Examination, 67 Tenn. L. Rev. 627 (2000).

NOTES TO DECISIONS

1. Waiver.

This section requires opening statements to be made prior to the presentation of any evidence. The failure of the defendant to request the opportunity to make an opening statement prior to the presentation of the state's first witness waived any right to make such statement. State v. Strange, 772 S.W.2d 440, 1989 Tenn. Crim. App. LEXIS 35 (Tenn. Crim. App. 1989).

2. Timing.

The court did not abuse its discretion by refusing to allow defendant to reserve his opening statement until the beginning of the defense's proof. State v. Harris, 839 S.W.2d 54, 1992 Tenn. LEXIS 348 (Tenn. 1992), rehearing denied, — S.W.2d —, 1992 Tenn. LEXIS 557 (Tenn. Sept. 8, 1992), cert. denied, Harris v. Tennessee, 507 U.S. 954, 113 S. Ct. 1368, 122 L. Ed. 2d 746, 1993 U.S. LEXIS 1703 (1993).

A criminal defendant has no right to make an opening statement at any other time except prior to the presentation of any evidence in the case. State v. Harris, 839 S.W.2d 54, 1992 Tenn. LEXIS 348 (Tenn. 1992), rehearing denied, — S.W.2d —, 1992 Tenn. LEXIS 557 (Tenn. Sept. 8, 1992), cert. denied, Harris v. Tennessee, 507 U.S. 954, 113 S. Ct. 1368, 122 L. Ed. 2d 746, 1993 U.S. LEXIS 1703 (1993).

Because opening statements are not evidence, the trial court did not err in holding that under this section a defendant has no right to reserve his opening statement until the close of the state's evidence. State v. Heck Van Tran, 864 S.W.2d 465, 1993 Tenn. LEXIS 343 (Tenn. 1993), rehearing denied, 1993 Tenn. LEXIS 383 (Tenn. 1993), cert. denied, Heck Van Tran v. Tennessee, 511 U.S. 1046, 114 S. Ct. 1577, 128 L. Ed. 2d 220, 1994 U.S. LEXIS 3111 (1994).

3. Restrictions on Statements.

Defendant's contention that the trial court improperly restricted his opening statement, was meritless, for the defendant's attorney injected argument into the opening statement, and while the trial court's interruption may have been premature, defense counsel was allowed to make his point. State v. Harris, 839 S.W.2d 54, 1992 Tenn. LEXIS 348 (Tenn. 1992), rehearing denied, — S.W.2d —, 1992 Tenn. LEXIS 557 (Tenn. Sept. 8, 1992), cert. denied, Harris v. Tennessee, 507 U.S. 954, 113 S. Ct. 1368, 122 L. Ed. 2d 746, 1993 U.S. LEXIS 1703 (1993).

Prosecutor made an improper opening statement in defendant's first degree murder trial because the prosecutor should not have referred to statements of child sexual abuse which were made by the alleged victim to a worker for a children's services agency, been critical of the exercise of marital privilege in regard to the testimony of defendant's spouse, and referred to defendant's refusal to take a polygraph test. State v. Sexton, — S.W.3d —, 2012 Tenn. LEXIS 739 (Tenn. May 29, 2012).

Use of the word “murder” by the prosecution during opening argument, despite the court's prohibition on use of that word, did not entitle defendant to a new trial, as the prosecutor's statement was apparently a reference to the charge against defendant and the prosecutor should not have been prohibited from using the word “murder” in that context. State v. Dowlen, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 828 (Tenn. Crim. App. Nov. 7, 2016).

4. Prosecutor's Statement Proper.

Trial court did not err in permitting the prosecutor to state during opening statements that defendant was calm and collected during the shooting at issue as the state told the jury its theory of the case and what the expected proof would establish over the course of the trial, and the evidence established that the victim's wife and his stepson said that defendant was calm during the argument and at the time of the shooting. State v. Gayden, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 862 (Tenn. Crim. App. Oct. 23, 2012), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 320 (Tenn. Mar. 18, 2013).

Defendant's petition for post-conviction relief was properly denied because counsel was not ineffective as he made no “promises” to the jury in his opening statement because counsel introduced the theory of physical impossibility during opening argument consistent with his trial strategy that the victim's size and physical state at the time of the murder was not consistent with the State's theory of how the murder occurred; and he did not promise the State's medical examiner would agree that defendant was innocent, but the medical examiner did state that the strangulation was accomplished with so much force that it had to be somebody who was extremely powerful to have done it. Cannon v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 204 (Tenn. Crim. App. Mar. 21, 2017).

5. Prosecutor's Statement Improper.

Prosecutor's statements in opening argument constituted a blatant attempt to show defendant's propensity to commit intentional, premeditated murder of the victim through manual strangulation based upon defendant's prior conduct in choking both the victim and defendant's paramour when defendant became angry. Although defense counsel erred by failing to object, the error was not prejudicial in light of the jury's rejection of the claim that the murder was intentional and premeditated and the evidence supporting second degree murder. Braswell v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 269 (Tenn. Crim. App. Apr. 9, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 595 (Tenn. Sept. 14, 2018).

Collateral References.

Power of trial court to dismiss prosecution or direct acquittal on basis of prosecutor's opening statement. 75 A.L.R.3d 649.

Propriety and prejudicial effect of prosecutor's argument giving jury impression that defense counsel believes accused guilty. 89 A.L.R.3d 263.

Propriety and prejudicial effect of prosecutor's argument to jury indicating his belief or knowledge as to guilt of accused — modern cases. 88 A.L.R.3d 449.

Trial 109.

20-9-302. Declaration may be read to jury.

In the trial of any civil suit, counsel shall be permitted to read the counsel's entire declaration, including the amount sued for, to the jury at the beginning of the lawsuit, and may refer to the declaration in argument or summation to the jury.

Acts 1963, ch. 79, § 3; T.C.A., § 20-1328.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 212.

Tennessee Criminal Practice and Procedure (Raybin), § 26.10.

Law Reviews.

Counting Angels and Weighing Anchors: Per Diem Arguments for Noneconomic Personal Injury Tort Damages (Joseph H. King, Jr.), 71 Tenn. L. Rev. 1 (2003).

Malpractice in Dealing with Medical Malpractice, 6 Mem. St. U.L. Rev. 437.

Cited: Smartt v. Fleming, 481 S.W.2d 774, 1972 Tenn. App. LEXIS 339 (Tenn. Ct. App. 1972); Elliott v. Cobb, 320 S.W.3d 246,  2010 Tenn. LEXIS 875 (Tenn. Sept. 23, 2010).

NOTES TO DECISIONS

1. Reference in Instructions.

In view of this section there was no error in the trial judge telling the jury the amount of damages claimed in each of plaintiffs' declarations in personal injury action. Flannagan v. Lee, 56 Tenn. App. 600, 409 S.W.2d 385, 1966 Tenn. App. LEXIS 239 (Tenn. Ct. App. 1966).

2. Reference to Specific Dollar Amount in Malpractice Cases.

Reference to “multi-million dollar lawsuit” in plaintiff's argument was misconduct meriting new trial of malpractice action. Guess v. Maury, 726 S.W.2d 906, 1986 Tenn. App. LEXIS 3257 (Tenn. Ct. App. 1986), overruled in part, Elliott v. Cobb, 320 S.W.3d 246,  2010 Tenn. LEXIS 875 (Tenn. Sept. 23, 2010).

20-9-303. Demonstrative evidence permitted in argument.

In the trial of any civil suit, counsel for either party shall be permitted to use a blackboard, models or similar devices, also any picture, plat or exhibit introduced in evidence, in connection with the counsel's argument to the jury for the purpose of illustrating the counsel's contentions with respect to the issues that are to be decided by the jury; provided, that counsel shall not, in writing, present any argument that could not properly be made orally.

Acts 1963, ch. 79, § 1; T.C.A., § 20-1326.

Textbooks. Tennessee Law of Evidence (2nd ed., Cohen, Paine and Sheppeard), § 401.13.

Law Reviews.

Counting Angels and Weighing Anchors: Per Diem Arguments for Noneconomic Personal Injury Tort Damages (Joseph H. King, Jr.), 71 Tenn. L. Rev. 1 (2003).

Tangible Evidence in Tennessee (Ronald L. Gilman), 22 No. 3, Tenn. B.J. 19 (1986).

Cited: State v. Wiseman, 643 S.W.2d 354, 1982 Tenn. Crim. App. LEXIS 468 (Tenn. Crim. App. 1982); Chapman v. Lewis, — S.W.3d —, 2010 Tenn. App. LEXIS 479 (Tenn. Ct. App. July 28, 2010).

NOTES TO DECISIONS

1. Presentations Appropriate.

In a medical malpractice case, the use of power point presentations in opening and closing argument was not inappropriate because counsel acted within the provisions of T.C.A. § 20-9-303 in making the presentations. Stanfield v. Neblett, 339 S.W.3d 22, 2010 Tenn. App. LEXIS 373 (Tenn. Ct. App. June 4, 2010), appeal denied, — S.W.3d —, 2011 Tenn. LEXIS 39 (Tenn. Jan. 13, 2011).

In a medical-malpractice action, the trial court did not err in allowing the doctor's counsel to use a powerpoint presentation during opening and closing statements because no specific objection was made as to any of the material contained in the presentation and because the evidence was stipulated and properly admissible during the opening statement. Further, there was no authority indicating that counsel should not be able to display portions of the transcript to the jury during closing arguments. Stanfield v. Neblett, — S.W.3d —, 2010 Tenn. App. LEXIS 467 (Tenn. Ct. App. July 23, 2010).

Collateral References.

Propriety and prejudicial effect of argument or comment by counsel as to settlement negotiations during trial of personal injury action. 99 A.L.R.2d 737.

Propriety of court's limitation of time allowed counsel for summation or argument in civil trial. 3 A.L.R.2d 1310.

Statement by counsel relating to race, nationality, or religion in civil action as prejudicial. 99 A.L.R.2d 1249.

Trial 116.

20-9-304. Monetary value of pain and suffering permitted in argument.

In the trial of a civil suit for personal injuries, counsel shall be allowed to argue the worth or monetary value of pain and suffering to the jury; provided, that the argument shall conform to the evidence or reasonable deduction from the evidence in such case.

Acts 1963, ch. 79, § 2; T.C.A., § 20-1327.

Law Reviews.

Counting Angels and Weighing Anchors: Per Diem Arguments for Noneconomic Personal Injury Tort Damages (Joseph H. King, Jr.), 71 Tenn. L. Rev. 1 (2003).

NOTES TO DECISIONS

1. Construction With Other Statutes.

T.C.A. §§ 29-26-117 and 20-9-304 are not in conflict. Interpreted in accordance with the clear and unambiguous language of each section, the statutory scheme allows a plaintiff to argue or suggest a monetary value to be placed on non-economic damages such as pain and suffering and to make an argument concerning the ultimate monetary worth of his or her action, but precludes either party from disclosing the amount of the ad damnum clause in the plaintiff's complaint. Elliott v. Cobb, 320 S.W.3d 246,  2010 Tenn. LEXIS 875 (Tenn. Sept. 23, 2010).

Part 4
Dismissal

20-9-401. Dismissal against part of defendants.

The plaintiff may, at any time during the pendency of an action, dismiss as to any one (1) or more of the defendants and proceed against the others.

Code 1858, § 4246 (deriv. Acts 1835-1836, ch. 87, § 1); Shan., § 6084; Code 1932, § 10342; T.C.A. (orig. ed.), § 20-1310.

Cross-References. Dismissal of actions, Tenn. R. Civ. P. 41.

Effect of dismissal on limitations, § 28-1-105.

Cited: Hooper v. Atlanta, K. & N.R.R., 107 Tenn. 712, 65 S.W. 405 (1901).

NOTES TO DECISIONS

1. Judgment Void as to Part of Defendants.

Where plaintiff obtained a judgment against two defendants, one of whom was not served with process, the judgment was void as to such defendant and might be considered as an automatic or informal dismissal as to such defendant. Galbraith v. Kirby, 21 Tenn. App. 303, 109 S.W.2d 1168, 1937 Tenn. App. LEXIS 35 (Tenn. Ct. App. 1937).

2. Nonsuit After Remandment for New Trial.

The reversal and remandment by the federal appellate court to the lower federal court, with directions “to grant a new trial, to sustain the plea of the statute of limitations to the declaration as amended, and to enter judgment for the defendant,” does not make a new trial compulsory, but the plaintiff may, after the mandate has been received, and orders made thereon as directed, take a voluntary nonsuit. Atlanta, K. & N. R. Co. v. Hooper, 105 F. 550, 1900 U.S. App. LEXIS 4032 (6th Cir. Tenn. 1900).

3. Dismissal With or Without Prejudice.

The common law courts of this state do not have jurisdiction, like courts of equity, to enter decrees dismissing actions “without prejudice” to plaintiff's right to sue defendant again on the same cause or “with prejudice” to such right and the decisive test as to whether or not plaintiff can bring his action again is whether or not such dismissal was on the merits. Long v. Kirby-Smith, 40 Tenn. App. 446, 292 S.W.2d 216, 1956 Tenn. App. LEXIS 155 (Tenn. Ct. App. 1956), superseded by statute as stated in, Lovelace v. State, — S.W.2d —, 1989 Tenn. Crim. App. LEXIS 167 (Tenn. Crim. App. Mar. 9, 1989).

Circuit court could order a dismissal upon motion for a nonsuit but could not decree a dismissal with prejudice under such circumstances and words “with full prejudice” contained in such an order were mere surplusage. Long v. Kirby-Smith, 40 Tenn. App. 446, 292 S.W.2d 216, 1956 Tenn. App. LEXIS 155 (Tenn. Ct. App. 1956), superseded by statute as stated in, Lovelace v. State, — S.W.2d —, 1989 Tenn. Crim. App. LEXIS 167 (Tenn. Crim. App. Mar. 9, 1989).

Where in action for personal injuries plaintiff executed a covenant not to sue as to all but one of the joint tort-feasors against whom he had brought suit and thereafter counsel for plaintiff and for those defendants with whom the covenants had been executed entered a consent order without knowledge of plaintiff purporting to dismiss the suit “with full prejudice” as to the aforementioned defendants, such order did not operate to release or discharge the remaining tort-feasor but only meant dismissal with the full prejudice as provided in such covenants. Long v. Kirby-Smith, 40 Tenn. App. 446, 292 S.W.2d 216, 1956 Tenn. App. LEXIS 155 (Tenn. Ct. App. 1956), superseded by statute as stated in, Lovelace v. State, — S.W.2d —, 1989 Tenn. Crim. App. LEXIS 167 (Tenn. Crim. App. Mar. 9, 1989).

4. Authority of Attorney.

An attorney has implied authority to agree to a dismissal or nonsuit which does not bar the right of the client to sue again but has no implied authority to release a claim or cause of action or otherwise give up the rights of the client. Long v. Kirby-Smith, 40 Tenn. App. 446, 292 S.W.2d 216, 1956 Tenn. App. LEXIS 155 (Tenn. Ct. App. 1956), superseded by statute as stated in, Lovelace v. State, — S.W.2d —, 1989 Tenn. Crim. App. LEXIS 167 (Tenn. Crim. App. Mar. 9, 1989).

5. Application.

This section was applicable to the county court in condemnation proceedings by the county board of education in which the jurisdiction of the county and circuit courts was concurrent. Ragland v. Davidson County Board of Education, 203 Tenn. 317, 312 S.W.2d 855, 1958 Tenn. LEXIS 306 (1958).

Collateral References. 24 Am. Jur. 2d Dismissal §§ 35-37.

67 C.J.S. Parties § 81.

Joint tort-feasor, dismissal after verdict as to, as requiring dismissal as to other tort-feasor. 143 A.L.R. 7.

Joint tort-feasors, dismissal or nolle prosequi as to part of. 50 A.L.R. 1091, 66 A.L.R. 206, 104 A.L.R. 846, 124 A.L.R. 1298, 148 A.L.R. 1270.

Pretrial procedure 504, 535.

Part 5
Deliberation and Verdict

20-9-501. Charge to jury in writing.

On the trial of all civil cases, it is the duty of the judge before whom the civil case is tried, at the request of either party, plaintiff or defendant, to reduce every word of the judge's charge to the jury to writing before it is delivered to the jury, and all subsequent instructions that may be asked for by the jury, or that may be given by the judge, shall, in like manner, be reduced to writing before being delivered to the jury.

Acts 1875, ch. 37, § 1; Shan., § 4683; Code 1932, § 8809; T.C.A. (orig. ed.), § 20-1315.

Cross-References. Instructions to jury, Tenn. R. Civ. P. 51, Tenn. R. Crim. P. 30.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 211.

Tennessee Jurisprudence, 11 Tenn. Juris., Equity, § 73; 15 Tenn. Juris., Instructions, §§ 6, 17.

Law Reviews.

Jury Reform in Tennessee, 34 U. Mem. L. Rev. 1 (2003).

Waiting for the Jury (George W. Jenkins III), 20 No. 4 Tenn. B.J. 31 (1984).

NOTES TO DECISIONS

1. Mandatory Nature of Section.

This statute is mandatory, and the court's failure to comply strictly with the request for a written charge constitutes reversible error, although it does not appear that any exception was taken on that account in the lower court, or that any injury thereby resulted. Equitable Fire Ins. Co. v. Trustees C. P. Church, 91 Tenn. 135, 18 S.W. 121, 1891 Tenn. LEXIS 85 (1892); Columbia Veneer & Box Co. v. Cottonwood Lumber Co., 99 Tenn. 122, 41 S.W. 351, 1897 Tenn. LEXIS 16 (1897); State v. Missio, 105 Tenn. 218, 58 S.W. 216, 1900 Tenn. LEXIS 66 (1900).

The requirements of this statute are imperative, and a failure to strictly comply with them constitutes reversible error. Phillips v. Newport, 28 Tenn. App. 187, 187 S.W.2d 965, 1945 Tenn. App. LEXIS 65 (Tenn. Ct. App. 1945).

2. —Requirements of Act.

There is nothing in this section which requires the trial judge to sign the written charge which he reads to the jury, nor to physically deliver such written charge to the jury to be taken into the jury room with them; the strict requirements of this section having been fully met when the trial judge reduces every word of his charge to the jury to writing, reads that written charge to them, and does not deliver one word of his charge to them orally. Phillips v. Newport, 28 Tenn. App. 187, 187 S.W.2d 965, 1945 Tenn. App. LEXIS 65 (Tenn. Ct. App. 1945).

While trial courts must, on request, reduce their jury charge to writing for the benefit of the attorneys in civil cases, they are not required to provide a written copy of their instructions to the jury. Ladd by Ladd v. Honda Motor Co., 939 S.W.2d 83, 1996 Tenn. App. LEXIS 445 (Tenn. Ct. App. 1996).

3. —Questions from Individual Jurors.

A trial judge responding to the questions from individual jurors could hardly be expected to take down the questions, write out his answers, and then read his answers back to the jury. In re Estate of Depriest, 733 S.W.2d 74, 1986 Tenn. App. LEXIS 3223 (Tenn. Ct. App. 1986).

4. Compared with Criminal Cases.

This section and former statute relating to charges in civil and criminal cases were separate and distinct acts; and the positive requirement of the statute relating to criminal cases that that the jury shall take the charge out with them upon their retirement could not be read into the statute relating to civil cases by judicial interpretation when that provision does not appear in the statute relating to civil cases. Phillips v. Newport, 28 Tenn. App. 187, 187 S.W.2d 965, 1945 Tenn. App. LEXIS 65 (Tenn. Ct. App. 1945).

There is nothing in this section requiring the court to permit the jury to have physical possession of the written charge and former statute requiring the written charge to be delivered to the jury in felony cases in no way amended or restricted the provisions of this section. Smith v. Steele, 44 Tenn. App. 238, 313 S.W.2d 495, 1956 Tenn. App. LEXIS 173 (Tenn. Ct. App. Aug. 23, 1956).

5. Physical Delivery of Charge After Oral Delivery.

This section does not prevent the judge from physically delivering the judge's charge to the jury after the oral delivery. Runnells v. Rogers, 596 S.W.2d 87, 1980 Tenn. LEXIS 426 (Tenn. 1980).

6. Failure to Make Timely Objection.

Trial court had not committed reversible error by not allowing appellant's counsel to review the written jury instructions and verdict form, and appellant was not denied the opportunity to fully and effectively make timely objections to the jury instructions and verdict form used; in any event, any error in the trial court's failure to provide counsel with the written versions of the instructions was deemed harmless, because counsel could have preserved any objections by raising the issues in a motion for new trial. Malibu Equestrian Estate v. Sequatchie Concrete Serv., — S.W.3d —, 2007 Tenn. App. LEXIS 493 (Tenn. Ct. App. July 30, 2007).

7. Timeliness.

In a health liability action by a patient and his wife against a doctor, although their request for jury instructions was timely, the request to have the instructions reduced to writing and given to the jury was untimely, as it was made after the jury began deliberating; Burchfield v. Renfree, — S.W.3d —, 2013 Tenn. App. LEXIS 685 (Tenn. Ct. App. Oct. 18, 2013).

8. Interpretation.

Statutory provision and civil rule that required that a request for a jury charge be put in writing were harmonized, such that the intent was not to expand the time limitation that was statutorily imposed, but to put the requested charge in writing before the charge was delivered to the jury and to provide the jury with the written instructions. Burchfield v. Renfree, — S.W.3d —, 2013 Tenn. App. LEXIS 685 (Tenn. Ct. App. Oct. 18, 2013).

Collateral References. 75 Am. Jur. 2d Trial §§ 633-637.

88 C.J.S. Trial § 266.

Instruction as to possible effect of verdict on insurance rates as prejudicial error. 100 A.L.R.2d 345.

Propriety and prejudicial effect of comment or instruction by court with respect to party's refusal to permit introduction of privileged testimony. 34 A.L.R.3d 775.

Propriety and prejudicial effect of instructions in civil case as affected by the manner in which they are written. 10 A.L.R.3d 501.

20-9-502. Verdict applied to good count.

If any counts in a declaration are good, a verdict for entire damages shall be applied to such good counts.

Code 1858, § 2969 (deriv. Acts 1801, ch. 6, § 63); Shan., § 4694; Code 1932, § 8824; T.C.A. (orig. ed.), § 20-1317.

Textbooks. Tennessee Jurisprudence, 24 Tenn. Juris., Verdict, §§ 2, 11.

Law Reviews.

General Verdicts in Multi-Claim Litigation, 21 Mem. St. U.L. Rev. 705 (1991).

Cited: Hager v. Hager, 17 Tenn. App. 143, 66 S.W.2d 250, 1933 Tenn. App. LEXIS 51 (Tenn. Ct. App. 1933); Wilson v. Moudy, 22 Tenn. App. 356, 123 S.W.2d 828, 1938 Tenn. App. LEXIS 36 (Tenn. Ct. App. 1938); Summers v. Bond-Chadwell Co., 24 Tenn. App. 357, 145 S.W.2d 7, 1939 Tenn. App. LEXIS 17 (Tenn. Ct. App. 1939); Isaacs v. Bokor, 566 S.W.2d 532, 1978 Tenn. LEXIS 555 (Tenn. 1978); Helton v. Reynolds, 640 S.W.2d 5, 1982 Tenn. App. LEXIS 385 (Tenn. Ct. App. 1982); Womack v. Gettelfinger, 808 F.2d 446, 1986 U.S. App. LEXIS 36318 (6th Cir. Tenn. 1986); West v. Media Gen. Operations, Inc., 250 F. Supp. 2d 923, 2002 U.S. Dist. LEXIS 26334 (E.D. Tenn. 2002).

NOTES TO DECISIONS

1. General Verdict — Privilege of Jury.

Privilege of jury to decline finding any other than a general verdict is not restrained by this statute. Louisville & N. R. Co. v. Frakes, 11 Tenn. App. 593, — S.W.2d —, 1928 Tenn. App. LEXIS 14 (Tenn. Ct. App. 1928).

A jury may return a general verdict at the same time it responds to interrogatories submitted by the court, and if the findings on the interrogatories are insufficient to warrant a judgment, the court may act upon the general verdict and deal with it as if there had been no findings on the interrogatories. Lenoir Car Works v. Littleton, 41 Tenn. App. 323, 293 S.W.2d 585, 1956 Tenn. App. LEXIS 171 (Tenn. Ct. App. 1956).

In negligence case where jury rendered general verdict in favor of plaintiff, court held that this section has been applied in diversity cases where a general verdict was rendered on basis of at least one properly submitted issue which was supported by substantial evidence even though other claims may have been improperly submitted. Watts v. Mack Trucks, Inc., 491 F.2d 601, 1974 U.S. App. LEXIS 10179 (6th Cir. Tenn. 1974).

2. Jury Finding of All Issues — Necessity.

Where there are several issues, they must all be found by the jury before judgment can be pronounced, though the response need not be in technical or specific terms. Kennel v. Muncey, 7 Tenn. 273, 1823 Tenn. LEXIS 51 (1823); Carter v. Graves, 17 Tenn. 446 (1836); Crutcher v. Williams, 23 Tenn. 345, 1843 Tenn. LEXIS 109 (1842); Kirkpatrick v. S. W. R. Bank, 25 Tenn. 45, 1845 Tenn. LEXIS 15 (1845); Lowrey v. Brown, 35 Tenn. 17, 1855 Tenn. LEXIS 4 (1855).

Sections 20-9-502 and 20-9-503 must be read in pari materia and are not applicable in favor of a defendant whose liability was not considered by the jury because of an erroneous instruction. Wilson v. Tranbarger, 218 Tenn. 208, 402 S.W.2d 449, 1965 Tenn. LEXIS 512 (1965).

3. —Finding Supported by Evidence — Sufficiency.

By analogy to this section, if either of two findings standing alone would have invalidated a codicil, and if one of the findings was not affected by any substantial error on the trial, then that finding will support a judgment refusing probate of the codicil. Hager v. Hager, 17 Tenn. App. 143, 66 S.W.2d 250, 1933 Tenn. App. LEXIS 51 (Tenn. Ct. App. 1933).

4. Applying Verdict to Good Counts.

Verdict supported by two good counts held valid though third count was faulty. Anderson v. Read, 2 Tenn. 205, 1813 Tenn. LEXIS 5 (1812).

Where there are several counts, a general verdict will be applied to those counts sustained by the evidence, though there be no evidence to sustain the other counts. East T., V. & G. R.R. Co. v. Gurley, 80 Tenn. 46, 1883 Tenn. LEXIS 138 (1883); Tennessee Cent. Ry. v. Umenstetter, 155 Tenn. 235, 291 S.W. 452, 1926 Tenn. LEXIS 41 (1926).

Where verdict was general and not special with respect to the two separate counts of the declaration, and there was material evidence to support one count, the verdict of the jury concurred in by trial judge will not be disturbed on appeal, even though there is no evidence in the record to support the other count. Sledge & Norfleet v. Bondurant, 5 Tenn. App. 319, — S.W. —, 1927 Tenn. App. LEXIS 65 (Tenn. Ct. App. 1927).

General verdict returned by the jury may well be referred to a count which there was evidence to support. Wilson v. Moudy, 22 Tenn. App. 356, 123 S.W.2d 828, 1938 Tenn. App. LEXIS 36 (Tenn. Ct. App. 1938).

Verdicts must be applied to the good counts in declaration. Schumpert v. Moore, 24 Tenn. App. 695, 149 S.W.2d 471, 1940 Tenn. App. LEXIS 83 (Tenn. Ct. App. 1940); Tutton v. Patterson, 714 S.W.2d 268, 1986 Tenn. LEXIS 776 (Tenn. 1986).

Under this section a general verdict is not vitiated by the absence of proof on some counts of the declaration if there is evidence to sustain the averments of a single count. Taylor v. Cobble, 28 Tenn. App. 167, 187 S.W.2d 648, 1945 Tenn. App. LEXIS 64 (Tenn. Ct. App. 1945); City Transp. Corp. v. Seckler, 32 Tenn. App. 661, 225 S.W.2d 288, 1949 Tenn. App. LEXIS 115 (Tenn. Ct. App. 1949); Wesco Paving Co. v. Nash, 35 Tenn. App. 409, 245 S.W.2d 782, 1951 Tenn. App. LEXIS 82 (1951); Central Truckaway System, Inc. v. Waltner, 36 Tenn. App. 202, 253 S.W.2d 985, 1952 Tenn. App. LEXIS 108 (Tenn. Ct. App. 1952).

General verdict if supported by evidence on one or more counts is good though there is a lack of proof on other counts. White v. Seier, 37 Tenn. App. 437, 264 S.W.2d 241, 1953 Tenn. App. LEXIS 99 (Tenn. Ct. App. 1953).

Where jury returned a general verdict on two counts, Court of Appeals was bound to affirm verdict on good count about which no question was made even though it was contended that the verdict on the other count was erroneous. Lenoir Car Works v. Littleton, 41 Tenn. App. 323, 293 S.W.2d 585, 1956 Tenn. App. LEXIS 171 (Tenn. Ct. App. 1956).

In action for damages from railroad crossing accident where case was correctly submitted to jury on both statutory and common law counts there could be no reversal even if the court erred in its submission of the last clear chance doctrine to the jury. Louisville & N. R. Co. v. Rochelle, 252 F.2d 730, 1958 U.S. App. LEXIS 3759 (6th Cir. Tenn. 1958).

Where case was tried on negligence and also on breach of implied warranty, and negligence count was good, the fact that district judge found that it was improper to submit the case on breach of implied warranty was not ground to grant a new trial, since the Tennessee law must be applied in diversity cases. Tracy v. Finn Equipment Co., 290 F.2d 498, 1961 U.S. App. LEXIS 4565 (6th Cir. Tenn. 1961), cert. denied, 368 U.S. 826, 82 S. Ct. 47, 7 L. Ed. 2d 30, 1961 U.S. LEXIS 506 (1961).

Where first count was sustained by evidence and charge of the court had no relevancy to issue raised by that count, the giving of a charge applicable to second count was not prejudicial error. Flannagan v. Lee, 56 Tenn. App. 600, 409 S.W.2d 385, 1966 Tenn. App. LEXIS 239 (Tenn. Ct. App. 1966).

A general verdict is not vitiated by absence of proof on some counts of the declaration if there is evidence to sustain the averments of a single count. Clinchfield R. Co. v. Forbes, 57 Tenn. App. 174, 417 S.W.2d 210, 1966 Tenn. App. LEXIS 203 (Tenn. Ct. App. 1966).

In absence of an affirmative showing that the jury found liability under a count of the declaration unsupported by evidence, the judgment will not be reversed by the failure of the trial judge to direct a verdict upon a count not sustained by proof. Clinchfield R. Co. v. Forbes, 57 Tenn. App. 174, 417 S.W.2d 210, 1966 Tenn. App. LEXIS 203 (Tenn. Ct. App. 1966).

A general verdict in favor of plaintiff without separate verdicts on separate counts is presumed to rest upon a valid count and will not be set aside even though one count be defective. Osborne v. Frazor, 58 Tenn. App. 15, 425 S.W.2d 768, 1968 Tenn. App. LEXIS 292, 35 A.L.R.3d 338 (Tenn. Ct. App. 1968), superseded by statute as stated in, Crawford v. Family Vision Center, Inc., — S.W.2d —, 1990 Tenn. App. LEXIS 810 (Tenn. Ct. App. Nov. 16, 1990).

Even though the trial court erred by instructing the jury on a post-sale duty to warn, as such a duty was not recognized in Tennessee, because the trial court correctly instructed the jury on the parents'  remaining theories of recovery under their wrongful death claim, the error was harmless, and the court affirmed the entry of judgment for the parents as to the jury's wrongful death compensatory award. Flax v. DaimlerChrysler Corp., — S.W.3d —, 2006 Tenn. App. LEXIS 822 (Tenn. Ct. App. Dec. 27, 2006), aff'd in part, rev'd in part, 272 S.W.3d 521, 2008 Tenn. LEXIS 505 (Tenn. July 24, 2008).

5. —Verdict — Presumption as to Good Count.

In the absence of an affirmative showing that the jury found liability under a count of the declaration unsupported by evidence, the judgment would not be reversed for failure of the trial judge to direct a verdict upon the count not sustained by proof, the presumption being that the judgment appealed from is regular and correct. City Transp. Corp. v. Seckler, 32 Tenn. App. 661, 225 S.W.2d 288, 1949 Tenn. App. LEXIS 115 (Tenn. Ct. App. 1949).

6. —Damages Assessed on All Counts.

Assessment of damages on all counts does not render judgment defective though some of the counts were bad. Pursell v. Archer, 7 Tenn. 317, 1824 Tenn. LEXIS 6 (1824).

7. —Instructions to Insufficient Count — Effect.

Charge to jury on gross and willful negligence was not prejudicial to defendant where general verdict of jury in favor of plaintiff was supported by material evidence on counts charging ordinary negligence. Monday v. Millsaps, 37 Tenn. App. 371, 264 S.W.2d 6, 1953 Tenn. App. LEXIS 96 (Tenn. Ct. App. 1953).

8. Improper Instructions as to Some Counts.

Where general verdict was returned by jury and alleged erroneous charge of court could not have affected all counts in action for damages for personal injuries resulting from automobile accident, judgment would not be reversed because of alleged erroneous charge. Spence v. Carne, 40 Tenn. App. 580, 292 S.W.2d 438, 1954 Tenn. App. LEXIS 170 (Tenn. Ct. App. 1954).

Where charge of court that defendant had both a statutory duty and common law duty to maintain highway bridge over railroad was questioned by defendant and charge with respect to statutory duty was proper there can be no reversal. Atlantic C. R. Co. v. Smith, 264 F.2d 428, 1959 U.S. App. LEXIS 4318 (6th Cir. Tenn. 1959).

A trial court's erroneous instruction on one count of a multicount suit is harmless error if its instructions as to the other counts were proper. Tutton v. Patterson, 714 S.W.2d 268, 1986 Tenn. LEXIS 776 (Tenn. 1986).

In a case where the daughter of the owner of the car was involved in a car accident and the owner claimed that the daughter did not have permission to use the car and, in fact, was accused of stealing the car, the evidence as to negligent entrustment in the record was sparse; thus, the trial court properly denied the owner's motion for a directed verdict on that issue and, even if the issue was erroneously submitted to the jury, the resulting error was harmless under T.C.A. § 20-9-502. Anderson v. Mason, 141 S.W.3d 634, 2003 Tenn. App. LEXIS 528 (Tenn. Ct. App. 2003), appeal denied, — S.W.3d —, 2004 Tenn. LEXIS 73 (Tenn. Jan. 26, 2004).

Collateral References. 76 Am. Jur. 2d Trial § 1149.

49 C.J.S. Judgments § 41; 88 C.J.S. Trial §§ 501, 502.

20-9-503. Scope of general verdict.

A general verdict, although it may not in terms answer every issue joined, is nevertheless held to embrace every issue, unless exception is taken at the term at which the verdict is rendered.

Code 1858, § 4247 (deriv. Acts 1851-1852, ch. 152, § 4); Shan., § 6085; Code 1932, § 10343; T.C.A. (orig. ed.), § 20-1318.

Textbooks. Tennessee Jurisprudence, 2 Tenn. Juris., Appeal and Error, § 232; 24 Tenn. Juris., Verdict, §§ 2, 11, 13.

Law Reviews.

Procedure and Evidence — 1954 Tennessee Survey, 7 Vand. L. Rev. 895.

Cited: Osborne v. Frazor, 58 Tenn. App. 15, 425 S.W.2d 768, 1968 Tenn. App. LEXIS 292, 35 A.L.R.3d 338 (Tenn. Ct. App. 1968); Clinard v. Pennington, 59 Tenn. App. 128, 438 S.W.2d 748, 1968 Tenn. App. LEXIS 336 (Tenn. Ct. App. 1968); In re Pitner, 696 F.2d 447, 1982 U.S. App. LEXIS 23050 (6th Cir. Tenn. 1982); Hill v. Doe, — S.W.3d —, 2008 Tenn. App. LEXIS 396 (Tenn. Ct. App. June 30, 2008).

NOTES TO DECISIONS

1. Constitutional Guarantee.

The right to trial by jury guaranteed by the Constitution is the right as it was at common law with the right of the jury at their option to return a special verdict or a general verdict but with the privilege to decline to return any but a general verdict which general verdict is held to embrace every issue unless excepted to. Harbison v. Briggs Bros. Paint Mfg. Co., 209 Tenn. 534, 354 S.W.2d 464, 1962 Tenn. LEXIS 387 (1962), overruled in part, Ennix v. Clay, 703 S.W.2d 137, 1986 Tenn. LEXIS 820 (Tenn. 1986).

2. Construction and Interpretation.

This section and § 20-9-502 must be read in pari materia. Wilson v. Tranbarger, 218 Tenn. 208, 402 S.W.2d 449, 1965 Tenn. LEXIS 512 (1965).

3. —“Every Issue” — Meaning.

This section is not limited to the effect of a general verdict on two or more counts of a ration, but includes a general verdict on every issue joined, whether the issue is joined by plea to the declaration or replication to an affirmative plea and joinder of issue thereon or otherwise. Summers v. Bond-Chadwell Co., 24 Tenn. App. 357, 145 S.W.2d 7, 1939 Tenn. App. LEXIS 17 (Tenn. Ct. App. 1939).

A general verdict includes not only the counts in a declaration, but every issue joined. Stewart v. Parker, 33 Tenn. App. 316, 232 S.W.2d 57, 1950 Tenn. App. LEXIS 110 (Tenn. Ct. App. 1950).

4. —When Not Applicable to Defendant.

Where wrecker, backed into side road, was partially on west side of highway and no flares were exhibited, and driver of oil tanker proceeding south, after being flagged, stopped where road was partially blocked by wrecker, to allow north bound traffic to pass, and plaintiff's car proceeding south collided with tanker, error of trial court in directing verdict in favor of driver and owner of wrecker was not cured as a result of verdict in favor of driver and owner of oil tanker, since this section could not be extended to cause the general verdict in favor of driver and owner of wrecker as a finding of negligence on part of plaintiff with respect to the action against driver and owner of wrecker. Hammons v. Walker Hauling Co., 196 Tenn. 26, 263 S.W.2d 753, 1953 Tenn. LEXIS 402 (1953).

In personal injury action by pedestrian against automobile driver and bus company where trial court directed verdict for bus company and jury returned verdict in favor of automobile driver, bus company was not entitled to presumption that verdict embraced a finding on every issue against plaintiff. Woody v. Cope, 207 Tenn. 78, 338 S.W.2d 551, 1960 Tenn. LEXIS 429, 4 A.L.R.3d 314 (1960).

There is nothing in this section to indicate a legislative intent to make a general verdict applicable in favor of a defendant whose liability was not being considered by the jury in returning a general verdict or to deprive a party of his day in court. Wilson v. Tranbarger, 218 Tenn. 208, 402 S.W.2d 449, 1965 Tenn. LEXIS 512 (1965).

5. General Verdict.

6. —Presumptions.

In the absence of a contrary showing, appellate court must assume there was a general verdict. Stewart v. Parker, 33 Tenn. App. 316, 232 S.W.2d 57, 1950 Tenn. App. LEXIS 110 (Tenn. Ct. App. 1950).

In a defamation case based on defendant media organizations' television news magazine “expose,” the court properly exercised its discretion to have the jury consider plaintiff criminal justice correction systems' defamation claims in the context of the offending television broadcast as a whole; the court did not err in utilizing a general verdict form and the jury's verdict was supported by the great weight of the evidence. West v. Media Gen. Operations, Inc., 250 F. Supp. 2d 923, 2002 U.S. Dist. LEXIS 26334 (E.D. Tenn. 2002).

7. —Effect.

The effect of a general verdict for a plaintiff is to decide each issue in favor of plaintiff if there is material evidence to support such verdict. Thoni v. Hayborn, 37 Tenn. App. 56, 260 S.W.2d 376, 1953 Tenn. App. LEXIS 156 (Tenn. Ct. App. 1953).

A judgment based on a general verdict in a will contest will support the determinative issues in favor of the proponent if there is material evidence to support the verdict. Davidson v. Gilreath, 38 Tenn. App. 291, 273 S.W.2d 717, 1954 Tenn. App. LEXIS 120 (Tenn. Ct. App. 1954).

Under a general verdict finding all issues for plaintiff the court of appeals cannot weigh the evidence to determine its preponderance but can only determine whether there is any substantial evidence to support the verdict, and this rule applies not only as to liability but also to injuries on which the amount of damages is based. Columbia v. Lentz, 39 Tenn. App. 350, 282 S.W.2d 787, 1955 Tenn. App. LEXIS 73 (Tenn. Ct. App. 1955); Treece v. Hamilton, 53 Tenn. App. 13, 378 S.W.2d 194, 1963 Tenn. App. LEXIS 126 (Tenn. Ct. App. 1963).

In negligence suit where allegation of negligent entrustment of vehicle was made but issue was not submitted to jury, scope of general verdict could not include finding of negligence on part of party so entrusting vehicle. Reliance Ins. Co. v. Liberty Mut. Ins. Co., 497 S.W.2d 885, 1973 Tenn. LEXIS 467 (Tenn. 1973).

8. —Defendant After Directed Verdict.

A general verdict in favor of defendant whose liability is being considered by the jury determines issues as to that defendant but does not determine issues as to another defendant whose case is not before the jury. Hammons v. Walker Hauling Co., 196 Tenn. 26, 263 S.W.2d 753, 1953 Tenn. LEXIS 402 (1953).

9. Variance Between Issue and Verdict.

Liberal construction will not embrace a case where the issue was the existence of usury in a note and the verdict was that defendant had not paid the debt in the declaration mentioned. Boon v. Planters' Bank, 22 Tenn. 84, 1842 Tenn. LEXIS 33 (1842).

10. Polling Jury Under General Verdict.

Since under this section all issues joined are embraced in a general verdict in absence of a showing to the contrary, failure of trial judge to poll the jury on a cross action in action for personal injuries arising out of automobile accident did not constitute reversible error under §§ 20-9-508, 20-9-509 where jury returned general verdict for plaintiff. Dixon Stave & Heading Co. v. Archer, 40 Tenn. App. 327, 291 S.W.2d 603, 1956 Tenn. App. LEXIS 153 (Tenn. Ct. App. 1956).

Collateral References. 75 Am. Jur. 2d Trial § 1111.

49 C.J.S. Judgments § 102; 88 C.J.S. Trial § 501.

20-9-504. Value omitted from verdict.

If the verdict in an action for specific personal property omits to find the value of the articles, the court may award a writ of inquiry to ascertain the value.

Code 1858, § 4248 (deriv. Acts 1801, ch. 6, § 62); Shan., § 6086; Code 1932, § 10344; T.C.A. (orig. ed.), § 20-1319.

20-9-505. Verdict for part of property.

If, on an issue embracing several articles, the verdict is for part only, it is not error, but the title or claim to those articles omitted is barred.

Code 1858, § 4249; Shan., § 6087; Code 1932, § 10345; T.C.A. (orig. ed.), § 20-1320.

20-9-506. Time for decision in nonjury cases.

When any judge of any district tries a case without the intervention of a jury, whether the judge is required to reduce the judge's finding of facts to writing or not, the judge shall be required to render the judge's decision and have judgment entered in the case within sixty (60) days from the completion of the trial.

Acts 1903, ch. 441, § 1; Shan., § 6087a1; Code 1932, § 10347; mod. C. Supp. 1950, § 10347; T.C.A. (orig. ed.), § 20-1322.

Cross-References. Findings and judgment, Tenn. R. Civ. P. 52, 54, 58.

Rule Reference. This section is referred to in Rule 11, § III of the Rules of the Supreme Court of Tennessee.

Textbooks. Tennessee Jurisprudence, 16 Tenn. Juris., Judgments and Decrees, § 45.

Law Reviews.

Changes in Procedure Under the Proposed Supplement to the 1932 Code of Tennessee, 21 Tenn. L. Rev. 589.

Ethical Obligations of Judges (Joe G. Riley), 23 Mem. St. U.L. Rev. 507 (1993).

Cited: Bennett v. Stutts, 521 S.W.2d 575, 1975 Tenn. LEXIS 689 (Tenn. 1975); Justice v. Sovran Bank, 918 S.W.2d 428, 1995 Tenn. App. LEXIS 754 (Tenn. Ct. App. 1995).

NOTES TO DECISIONS

1. Construction with Other Acts.

This section and § 16-10-205 (repealed) as amended by Acts 1947, ch. 48, § 1 should be considered in pari materia insofar as they control the effect of ending of term on litigation pending in circuit court. Crane Enamel Co. v. Jamison, 188 Tenn. 211, 217 S.W.2d 945, 1948 Tenn. LEXIS 497 (1948).

2. —Order Extending Term.

Acts 1947, ch. 48, § 1 amending § 16-10-205 (repealed) by implication amended this section so it is no longer necessary to enter an order extending term to take care of any case, or any question relating to it, either where such case has been concluded at end of term, or where it was concluded but no judgment entered. Crane Enamel Co. v. Jamison, 188 Tenn. 211, 217 S.W.2d 945, 1948 Tenn. LEXIS 497 (1948).

Effect of Acts 1947, ch. 48, § 1 amending § 16-10-205 (repealed) was to make cases decided prior to amendment relative to entering judgment after end of term a dead letter and no longer controlling. Crane Enamel Co. v. Jamison, 188 Tenn. 211, 217 S.W.2d 945, 1948 Tenn. LEXIS 497 (1948).

Case finished four days prior to end of term was a pending case and judgment could be entered in following term pursuant to Acts 1947, ch. 48, § 1, amending § 16-10-205 (repealed). Crane Enamel Co. v. Jamison, 188 Tenn. 211, 217 S.W.2d 945, 1948 Tenn. LEXIS 497 (1948).

3. Failure of Judge to Enter Judgment in Term.

Where the case was tried by judge without jury, and all the evidence was heard as much as four days previous to the end of the term, and the judgment was not entered at such term, the case was automatically continued to the next term. Kyle v. Goulette, 9 Tenn. App. 203, — S.W.2d —, 1928 Tenn. App. LEXIS 224 (Tenn. Ct. App. 1928).

Where judge failed to enter judgment at term at which case was tried, the case could not be tried on same evidence at next term without consent of parties. Kyle v. Goulette, 9 Tenn. App. 203, — S.W.2d —, 1928 Tenn. App. LEXIS 224 (Tenn. Ct. App. 1928).

Where case was tried by court without jury, and all evidence was heard as much as four days previous to the end of the term, there was no duty on litigants to ask for entry of judgment before expiration of the term. Kyle v. Goulette, 9 Tenn. App. 203, — S.W.2d —, 1928 Tenn. App. LEXIS 224 (Tenn. Ct. App. 1928).

Where court did not enter judgment at term at which case was tried, but at next term entered judgment without retrial of the case, over the objection of the plaintiff, the plaintiff was not estopped to urge the error because he thereafter filed motion for additional finding of facts. Kyle v. Goulette, 9 Tenn. App. 203, — S.W.2d —, 1928 Tenn. App. LEXIS 224 (Tenn. Ct. App. 1928).

4. Directory Provision.

This section prescribing the time for entry of judgment is directory and not mandatory. Schaeffer v. Richard, 43 Tenn. App. 205, 306 S.W.2d 340, 1956 Tenn. App. LEXIS 149 (Tenn. Ct. App. 1956).

5. Illustrative Cases.

Delay in the trial judge's rendering of a decision was not itself grounds for reversal; nothing suggested that the trial court's recollection of the trial proceedings was faulty, one exhibit the employee claimed was lost was in fact available to the trial judge, and the employee's assertion of prejudice was without merit. Gamble v. Mid-State Indus. Supply, — S.W.3d —, 2015 Tenn. LEXIS 733 (Tenn. Sept. 3, 2015), aff'd, Gamble v. Mid-State Indus. Supply, — S.W.3d —, 2015 Tenn. LEXIS 732 (Tenn. Sept. 3, 2015).

Collateral References. 49 C.J.S. Judgments § 113; 88 C.J.S. Trial § 604.

Trial 387(2).

20-9-507. [Repealed.]

Compiler's Notes. Former § 20-9-507 (Acts 1903, ch. 441, § 2; Shan., § 6087a2; Code 1932, § 10348; mod. C. Supp. 1950, § 10348; T.C.A. (orig. ed.), § 20-1323), concerning appeals from nonjury cases was repealed by Acts 1981, ch. 449, § 1(3). For present provisions, see T.R.A.P. 21.

20-9-508. Poll of jury on request.

The trial judges in all courts of record in which suits are tried by juries, in both criminal and civil cases, shall be required to poll the jury on application of either the state or the defendant in criminal cases and either the plaintiff or the defendant in civil cases, without exception.

Acts 1955, ch. 239, § 1; T.C.A., § 20-1324.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 31.36.

Law Reviews.

Civil Procedure — Polling the Jury — Harmless Error, 37 Tenn. L. Rev. 96.

Cited: State v. Stephens, 264 S.W.3d 719, 2007 Tenn. Crim. App. LEXIS 748 (Tenn. Crim. App. Sept. 21, 2007).

NOTES TO DECISIONS

1. “Polling Jury” Defined.

To poll the jury means to ascertain by questions to jurors, individually, whether each assents to the verdict. Dixon Stave & Heading Co. v. Archer, 40 Tenn. App. 327, 291 S.W.2d 603, 1956 Tenn. App. LEXIS 153 (Tenn. Ct. App. 1956).

2. Purpose of Polling Jury.

The object of polling the jury is for the purpose of ascertaining for a certainty the individual juror's verdict and it is not to determine the mode in which they arrived at the verdict. Dixon Stave & Heading Co. v. Archer, 40 Tenn. App. 327, 291 S.W.2d 603, 1956 Tenn. App. LEXIS 153 (Tenn. Ct. App. 1956).

3. Method and Form.

Since the statute does not provide a method of polling the jury, the method of conducting the poll is entirely within the discretion of the trial judge and his judgment will not be disturbed unless it clearly appears that there was an abuse of discretion. Dixon Stave & Heading Co. v. Archer, 40 Tenn. App. 327, 291 S.W.2d 603, 1956 Tenn. App. LEXIS 153 (Tenn. Ct. App. 1956); Lovell v. McCullough, 222 Tenn. 567, 439 S.W.2d 105, 1969 Tenn. LEXIS 463 (1969).

Where in polling jury the trial judge instead of calling the names of the last nine jurors pointed to each and asked, “Is it or not yours?” and each juror replied, “Yes,” the polling of the jury met the requirements of the statute. Dixon Stave & Heading Co. v. Archer, 40 Tenn. App. 327, 291 S.W.2d 603, 1956 Tenn. App. LEXIS 153 (Tenn. Ct. App. 1956).

No particular form of answer is essential on the polling of the jury, it being sufficient if the answer of the jury indicates with reasonable certainty that the verdict is his own. Dixon Stave & Heading Co. v. Archer, 40 Tenn. App. 327, 291 S.W.2d 603, 1956 Tenn. App. LEXIS 153 (Tenn. Ct. App. 1956); Lovell v. McCullough, 222 Tenn. 567, 439 S.W.2d 105, 1969 Tenn. LEXIS 463 (1969).

The poll of each member of the jury on the question of whether the verdict rendered is the verdict of each juror represents the extent to which the court may go in inquiring of the jurors as to the method of reaching their verdict. Lovell v. McCullough, 222 Tenn. 567, 439 S.W.2d 105, 1969 Tenn. LEXIS 463 (1969).

Where jury returned general verdict against three alleged tort-feasors in action for personal injuries and wrongful death arising out of motor vehicle accident, polling jury by asking in substance whether verdict against automobile driver was verdict of each juror was error. Lovell v. McCullough, 222 Tenn. 567, 439 S.W.2d 105, 1969 Tenn. LEXIS 463 (1969).

4. Conduct of Trial Court in Determining Verdict.

It was the duty of the trial judge to ascertain if the verdict returned was that of each individual juror and the asking by the trial judge of leading questions to obtain this fact was not reversible error. Dixon Stave & Heading Co. v. Archer, 40 Tenn. App. 327, 291 S.W.2d 603, 1956 Tenn. App. LEXIS 153 (Tenn. Ct. App. 1956).

5. Statements of Jurors.

Where juror upon being polled stated, “We figured they both was at fault,” but upon being questioned by the trial judge stated that the finding of the juror for the plaintiff was his verdict the statement of the juror was not grounds for a mistrial. Dixon Stave & Heading Co. v. Archer, 40 Tenn. App. 327, 291 S.W.2d 603, 1956 Tenn. App. LEXIS 153 (Tenn. Ct. App. 1956).

Refusal of trial judge during the polling of the jury to permit juror to address court after inquiring if he could “say something” did not constitute reversible error even though according to juror's affidavit he would have informed court that the jury disregarded negligence and fault in arriving at its verdict where such juror stated twice during the polling that the verdict was his individual verdict and nothing appeared to the contrary. Dixon Stave & Heading Co. v. Archer, 40 Tenn. App. 327, 291 S.W.2d 603, 1956 Tenn. App. LEXIS 153 (Tenn. Ct. App. 1956).

Where one juror, in response to question of court after return of verdict, as to whether that was the verdict of twelve jurors stated that he was on the other side but he went along with them, and no application for a poll was made as provided by this section, it would seem that this one juror was reluctant but was persuaded by the others which is not prohibited. Donahue v. George, 46 Tenn. App. 320, 329 S.W.2d 836, 1959 Tenn. App. LEXIS 103 (Tenn. Ct. App. 1959).

6. —Effect of General Verdict.

Since under § 20-9-503 all issues joined are embraced in a general verdict in absence of a showing to the contrary, failure of trial judge to poll the jury on cross action in action for personal injuries arising from automobile accident did not constitute reversible error where jury returned a general verdict for plaintiff and were polled as to such verdict. Dixon Stave & Heading Co. v. Archer, 40 Tenn. App. 327, 291 S.W.2d 603, 1956 Tenn. App. LEXIS 153 (Tenn. Ct. App. 1956).

7. Impeaching Verdict.

A juror will not be permitted to impeach his verdict by later making affidavit the substance of which shows that he did not fairly try the case as he had taken oath to do. Dixon Stave & Heading Co. v. Archer, 40 Tenn. App. 327, 291 S.W.2d 603, 1956 Tenn. App. LEXIS 153 (Tenn. Ct. App. 1956).

Trial court did not err in refusing to order jurors into court for questioning based on juror's affidavit that the jury disregarded negligence and fault in arriving at its verdict. Dixon Stave & Heading Co. v. Archer, 40 Tenn. App. 327, 291 S.W.2d 603, 1956 Tenn. App. LEXIS 153 (Tenn. Ct. App. 1956).

8. Duty to Poll Jury.

The trial judge is only required to poll the jury upon application of one of the parties. Nance v. State, 210 Tenn. 328, 358 S.W.2d 327, 1962 Tenn. LEXIS 443 (1962).

Where state failed to request that jury be polled it lost standing to complain as to lack of certainty or form of the verdict. Whitwell v. State, 520 S.W.2d 338, 1975 Tenn. LEXIS 701 (Tenn. 1975).

9. Waiver of Right.

Right to poll jury verdict was waived where no request was made when jury reported verdict in principal suit but was only made when jury subsequently brought in verdict in dependent suit. Ball v. Mallinkrodt Chemical Works, 53 Tenn. App. 218, 381 S.W.2d 563, 1964 Tenn. App. LEXIS 96, 19 A.L.R.3d 813 (Tenn. Ct. App. 1964).

The right to have the jury polled is not a constitutional right but one conferred by statute and will be considered waived unless requested at time verdict is returned. Ball v. Mallinkrodt Chemical Works, 53 Tenn. App. 218, 381 S.W.2d 563, 1964 Tenn. App. LEXIS 96, 19 A.L.R.3d 813 (Tenn. Ct. App. 1964).

Defendant waived any question about the verdict of the jury by his failure to object and demand that the jury be polled at the time of the verdict. Rice v. State, 4 Tenn. Crim. App. 600, 475 S.W.2d 178, 1971 Tenn. Crim. App. LEXIS 430 (Tenn. Crim. App. 1971).

Collateral References.

Competency of juror's statements or affidavits to show that they never agreed to purported verdict. 40 A.L.R.2d 1119.

Criminal Law 874.

Trial 325.

20-9-509. Poll of jury in open court — Persons present.

  1. The juries shall not be polled otherwise than in open court.
    1. In felony cases they shall not be polled unless the defendant is present in open court.
    2. In all other cases, the respective parties, either the state or the defendant in criminal cases or the plaintiff or the defendant in civil cases, may waive their presence at the time the jury is polled.

Acts 1955, ch. 239, § 2; T.C.A., § 20-1325.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 31.36.

Tennessee Jurisprudence, 24 Tenn. Juris., Verdict, § 26.

Cited: Nance v. State, 210 Tenn. 328, 358 S.W.2d 327, 1962 Tenn. LEXIS 443 (1962); Lovell v. McCullough, 222 Tenn. 567, 439 S.W.2d 105, 1969 Tenn. LEXIS 463 (1969).

20-9-510. Submission of exhibits to jury.

The trial judge in civil cases may, in the judge's discretion, on motion of either party, upon the judge's own motion or on request by the jury, submit all exhibits admitted in evidence to the jury for the jury's consideration during deliberations on the jury's verdict.

Acts 1976, ch. 792, § 1; T.C.A., § 20-1332.

Rule Reference. This section is referred to in the Advisory Commission Comments under Tenn. R. Evid. 803.

This section is referred to in the Advisory Commission Comments under Tenn. R. Crim. P. 30.1.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 24.51, 31.14.

Tennessee Jurisprudence, 11 Tenn. Juris., Evidence, § 82.

Tennessee Law of Evidence (2nd ed., Cohen, Paine and Sheppeard), § 401.15; Rule 803(5); § 803(5).3.

Law Reviews.

The Federal Influence on the Tennessee Hearsay Rule (Alfred H. Knight, III), 57 Tenn. L. Rev. 117 (1989).

NOTES TO DECISIONS

1. No Abuse of Discretion.

Trial judge did not abuse his discretion in refusing jury's request for exhibits reflecting medical expenses in negligence action. Newsom v. Markus, 588 S.W.2d 883, 1979 Tenn. App. LEXIS 349 (Tenn. Ct. App. 1979).

Where the total expert evidence on a subject was in the form of depositions which were read to the jury, there was no error in letting the jury take that total evidence into the jury room where the depositions were material to the issue of damages. Duvall v. Jones, 671 S.W.2d 851, 1984 Tenn. App. LEXIS 2814 (Tenn. Ct. App. 1984).

2. Discretion of Court.

This section does not impose upon a trial judge in a civil case the absolute duty of submitting the exhibits to the jury during deliberation; the matter is discretionary with the trial judge. Fletcher v. Coffee County Farmers Cooperative, 618 S.W.2d 490, 1981 Tenn. App. LEXIS 502 (Tenn. Ct. App. 1981).

Part 6
Tennessee Court Reporter Act of 2009

20-9-601. Short title — Legislative findings and declarations.

  1. This part shall be known and may be cited as the “Tennessee Court Reporter Act of 2009.”
  2. The general assembly finds and declares that it is the policy of the state to promote the skill, art and practice of court reporting in order to assure that court reporters possess the necessary skills and qualifications and that a board be established to prescribe the qualifications of court reporters and to issue licenses to persons who demonstrate their ability and fitness for the licenses. This part is intended to establish and maintain a standard of competency for individuals engaged in the practice of court reporting and for the protection of the public, in general, and for the litigants whose rights to personal freedom and property are affected by the competency of court reporters. The examination, licensing and supervision of the conduct and proficiency of court reporters are integrally related to the effective, impartial and prompt operation of the judicial system of the state.

Acts 2009, ch. 450, § 1.

Effective Dates. Acts 2009, ch. 450, § 3. July 1, 2010; provided, that for the purpose of promulgating rules and regulations and appointment of board members, the act shall take effect June 23, 2009.

20-9-602. Part definitions.

As used in this part, unless the context otherwise requires:

  1. “Board” means the Tennessee board of court reporting;
  2. “Court reporting” means the making of a verbatim record by means of manual shorthand, machine shorthand, closed microphone voice dictation silencer or by electronic recording of any testimony given under oath before or for submission to, any court, referee or court examiner, by any board, commission or other body or in any other proceeding where a verbatim record is required. The taking of a deposition is the making of a verbatim record. “Court reporting” does not include the following:
    1. Tape recordings made by attorneys or their agents under § 20-9-104, or use of video equipment and recordings by attorneys or their agents representing parties in any court proceeding, administrative law proceeding, deposition or any other proceeding;
    2. Use of tape recorders and video equipment and recordings by judges, court officers and employees, administrative agency officials and employees, and officials and employees of any board, commission or other body; and
    3. Attorneys conducting discovery in compliance with Rules 28, 29 and 30 of the Tennessee Rules of Civil Procedure. The written stipulation pursuant to Rule 29 shall state the licensure status, as prescribed by this part, of the person before whom the deposition is taken; and
  3. “Licensed court reporter” or “LCR” means any person licensed pursuant to this part to practice court reporting. Licenses shall indicate the method or methods in which the applicant has successfully passed examination of the organization or organizations approved by the Tennessee board of court reporting.

Acts 2009, ch. 450, § 1.

Effective Dates. Acts 2009, ch. 450, § 3. July 1, 2010; provided, that for the purpose of promulgating rules and regulations and appointment of board members, the act shall take effect June 23, 2009.

20-9-603. Licensure requirement — Court reporter not required at all proceedings — Exceptions.

  1. No person, except as otherwise provided by law, shall practice or attempt to practice court reporting in this state or hold the person out as a court reporter unless the person is a licensed court reporter.
  2. Nothing in this part shall be construed to require a court reporter at any court proceeding, administrative proceeding, deposition or any other proceeding. In the event a court reporter is retained for a proceeding, then the court reporter shall be licensed under this part.
  3. Notwithstanding any law to the contrary, a licensed court reporter is not required to be a notary public to record any court proceeding, administrative law proceeding, deposition or any other proceeding. A transcript taken and submitted by a licensed court reporter is not required to be notarized. A licensed court reporter is authorized to administer oaths and swear in witnesses.
  4. This part shall not apply to court reporting services paid for by a federal agency or other instrumentality of the United States.
  5. This part shall not apply to court reporting services provided pursuant to title 40.

Acts 2009, ch. 450, § 1; 2010, ch. 1123, §§ 1, 2, 10.

Amendments. The 2010 amendment added (c)-(e).

Effective Dates. Acts 2009, ch. 450, § 3. July 1, 2010; provided, that for the purpose of promulgating rules and regulations and appointment of board members, the act shall take effect June 23, 2009.

Acts 2010, ch. 1123, § 13. June 29, 2010.

20-9-604. Creation of Tennessee board of court reporting.

  1. There is created the Tennessee board of court reporting, which shall be attached to the department of commerce and insurance, division of regulatory boards, which is authorized to administer all the administrative functions and duties of the board, except those discretionary regulatory duties and powers vested by law in the board members.
    1. The board shall be comprised of seven (7) members, as follows:
      1. One (1) circuit or chancery court judge;
      2. Two (2) attorneys licensed to practice in the state;
      3. Two (2) freelance court reporters who practice machine shorthand;
      4. One (1) court reporter who practices any method of court reporting; and
      5. One (1) freelance court reporter who practices electronic court reporting, closed microphone voice dictation silencer reporting or manual shorthand reporting (pen).
    2. All court reporter members shall be licensed pursuant to this part; provided, however, that the initial court reporters appointed shall not be required to be licensed pursuant to this part until July 1, 2010.
  2. All members of the board shall be citizens of the United States and this state. The initial terms shall begin July 1, 2009, and all appointments shall be made by the governor prior to July 1 of each year for which appointments are to be made. The court reporter members may be appointed from lists of qualified persons submitted by interested court reporter groups, including, but not limited to, the Tennessee Court Reporters Association. The governor shall consult with such groups before making any appointments to the board.
  3. The initial members shall serve the following terms as designated by the governor:
    1. Three (3) members shall serve for two (2) years;
    2. Two (2) members shall serve for three (3) years; and
    3. Two (2) members shall serve for four (4) years.
  4. Subsequent terms of office shall be for four (4) years. No member shall serve more than two (2) consecutive terms. In the event of a vacancy, the governor shall fill the vacancy for the unexpired term. Each member shall serve until a successor is duly appointed and qualified.
  5. At its first meeting each calendar year, the board shall elect a chair, vice chair and secretary from its membership. No member shall be elected to serve more than two (2) consecutive years in the same office.
  6. After the initial appointments have been made, the board shall meet during July 2009, or as soon thereafter as practicable, for the purpose of organizing and transacting business. Thereafter, the board shall meet not less than twice annually and as frequently as deemed necessary by the chair or a majority of the members. The board shall meet at a time and place designated by the board. A quorum shall consist of four (4) members.
  7. Board members shall receive travel expenses according to the rules promulgated by the department of finance and administration and approved by the attorney general.

Acts 2009, ch. 450, § 1; 2010, ch. 1123, § 11; 2012, ch. 698, § 3; 2015, ch. 355, § 2.

Compiler's Notes. The Tennessee board of court reporting, created by this section, terminates June 30, 2024. See §§ 4-29-112, 4-29-245.

Acts 2009, ch. 450, § 3 provided that the act, which enacted this section, shall take effect July 1, 2010; however, Acts 2009, ch. 450, § 3 further provided that, for the purpose of promulgating rules and regulations and appointment of board members, the act shall take effect June 23, 2009.

Acts 2015, ch. 355,  § 3 provided that all records of the Tennessee Board of Court Reporting in the possession of the Administrative Office of the Courts on July 1, 2015, shall be transferred to and remain in the custody of the Division of Regulatory Boards in the Department of Commerce and Insurance.

Acts 2015, ch. 355, § 4 provided The Tennessee Board of Court Reporting is directed to promulgate rules to effectuate the purposes of this act. The rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in Title 4, Chapter 5.

Amendments. The 2010 amendment substituted “One (1) court reporter” for “One (1) official court reporter employed by the state” at the beginning of (b)(1)(D).

The 2012 amendment, in (c), substituted “this state” for “the state” in the first sentence, rewrote the third sentence which read: “In making court reporter appointments to the board, the governor shall receive, but shall not be bound by, recommendations from interested court reporter groups, including, but not limited to, the Tennessee Court Reporters Association.”, and added the last sentence.

The 2015 amendment substituted “which shall be attached to the department of commerce and insurance, division of regulatory boards” for “which shall be attached to the administrative office of the courts” in (a).

Effective Dates. Acts 2009, ch. 450, § 3. July 1, 2010; provided, that for the purpose of promulgating rules and regulations and appointment of board members, the act shall take effect June 23, 2009.

Acts 2010, ch. 1123, § 13. June 29, 2010.

Acts 2012, ch. 698, § 4. April 11, 2012.

Acts 2015, ch. 355, § 5. July 1, 2015.

20-9-605. Duties and responsibilities of the board.

The board shall have the duty and responsibility to:

  1. Act on matters concerning competency licensure only and the process of granting, suspending, reinstating and revoking a license;
  2. Establish and maintain requirements for the ethical behavior of court reporters, including, but not limited to, conflict of interest provisions, inappropriate relationships with a party or a party's attorney and failure to honor a contract or commitment to furnish transcripts;
  3. Establish a procedure for the investigation of complaints against licensed court reporters;
  4. Set a fee schedule for granting licenses and renewals of licenses;
  5. Maintain a current registry of licensed court reporters and a current registry of temporarily licensed court reporters. Registries shall be matters of public record;
  6. Maintain a complete record of all proceedings of the board;
  7. Adopt continuing education requirements no later than October 1, 2010. Requirements shall be implemented no later than January 1, 2011;
  8. Determine the content of and administer examinations to be given to applicants for licensure as licensed court reporters and issue numbered licenses to applicants found qualified;
  9. Maintain records of its proceedings and a registry of all persons licensed by the board, which shall be a public record and open to inspection; and
  10. In the event funds are available to the board from fees after expenses, study and, if feasible, establish the transcript reimbursement fund to assist indigent parties in obtaining transcripts.

Acts 2009, ch. 450, § 1; 2010, ch. 1123, § 12.

Amendments. The 2010 amendment deleted “; provided, however, that official court reporters employed full-time by the state shall not be required to pay such a fee” from the end of (4).

Effective Dates. Acts 2009, ch. 450, § 3. July 1, 2010; provided, that for the purpose of promulgating rules and regulations and appointment of board members, the act shall take effect June 23, 2009.

Acts 2010, ch. 1123, § 13. June 29, 2010.

20-9-606. Complaints — Remedies.

  1. All complaints shall be in writing, signed by the person making the complaint, and addressed to the chair of the board. All complaints shall contain the name and address of the person against whom the complaint is brought and a description of the conduct giving rise to the complaint. Complaints shall be submitted within ninety (90) days of the conduct complained about, and a copy shall be provided to the licensed court reporter within five (5) business days of receipt by the board. The copy shall be sent by certified mail or by such other means of delivery to ensure that the licensed court reporter charged in the complaint receives actual notice. After investigation of the charges, the board shall determine if a hearing is warranted, dismiss the complaint, or take other action the board deems appropriate. Any hearing deemed warranted shall be conducted in accordance with the contested cases provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
  2. The board may, when it deems appropriate, seek civil remedies at law or equity to restrain or enjoin any unauthorized practice or violation of this part.

Acts 2009, ch. 450, § 1.

Effective Dates. Acts 2009, ch. 450, § 3. July 1, 2010; provided, that for the purpose of promulgating rules and regulations and appointment of board members, the act shall take effect June 23, 2009.

20-9-607. Rules and regulations.

The board shall promulgate rules and regulations necessary to implement, administer and otherwise effectuate the purposes of this part. All rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. The rules and regulations shall be published in the standards of professional practice and made available to all licensees.

Acts 2009, ch. 450, § 1.

Effective Dates. Acts 2009, ch. 450, § 3. July 1, 2010; provided, that for the purpose of promulgating rules and regulations and appointment of board members, the act shall take effect June 23, 2009.

20-9-608. Fines for practicing court reporting without a license.

After January 1, 2011, any person who undertakes or attempts to undertake the practice of court reporting for remuneration without first having procured a license, who knowingly presents or files false information with the board for the purpose of obtaining a license or who violates this part shall be subject to a civil fine not exceeding five hundred dollars ($500). Each day's violation is a separate offense. A person who is not licensed may not bring or maintain an action to recover fees for court reporting services that the person performed in violation of this part.

Acts 2009, ch. 450, § 1; 2010, ch. 1123, §§ 3, 7.

Amendments. The 2010 amendment, in the first sentence, substituted “After January 1, 2011” for “After January 1, 2010” at the beginning and substituted “five hundred dollars ($500)” for “one thousand dollars ($1,000)” at the end.

Effective Dates. Acts 2009, ch. 450, § 3. July 1, 2010; provided, that for the purpose of promulgating rules and regulations and appointment of board members, the act shall take effect June 23, 2009.

Acts 2010, ch. 1123, § 13. June 29, 2010.

20-9-609. Qualification for licensure — Use of court reporter’s license number not authorized unless transcript produced by licensee or under licensee’s supervision — Licensee suspension of revocation for violation.

  1. To be licensed as a court reporter, an applicant shall submit proof of passage of the National Court Reporters Association registered professional reporter examination, the National Verbatim Reporters Association certified verbatim reporter examination, or the American Association of Electronic Reporters and Transcribers certified electronic court reporter examination. Applications for licensure shall be signed and sworn by the applicants and submitted on forms furnished by the board. All applicants who are found qualified to engage in the practice of court reporting pursuant to this part shall be issued a license as a licensed court reporter and an identifying number. The license shall be valid for two (2) years from the date of issuance. Notwithstanding any other law to the contrary, a licensed court reporter shall not be required to be a notary public to administer oaths to witnesses in the performance of their professional duties as a court reporter.
  2. No licensed court reporter may authorize the use of the court reporter's license number on any transcript not produced through the court reporter's personal effort or supervision, or both. Violation of this subsection (b) may be grounds for license suspension or revocation.

Acts 2009, ch. 450, § 1.

Effective Dates. Acts 2009, ch. 450, § 3. July 1, 2010; provided, that for the purpose of promulgating rules and regulations and appointment of board members, the act shall take effect June 23, 2009.

20-9-610. Reciprocal agreements with other entities — Application for nonresident licenses — Fees for nonresident application.

  1. The board shall enter into reciprocal agreements with any state, agency or other entity that licenses, certifies or registers court reporters, such as the National Court Reporters Association (NCRA), the National Verbatim Reporters Association (NVRA) or the American Association of Electronic Reporters and Transcribers (AAERT), if the board finds that the state, agency or other entity has substantially the same or more stringent requirements as the board.
  2. The reciprocity agreement shall provide that the board shall license a person who is currently licensed, certified or registered in another state or by another agency or other entity if that state, agency or other entity agrees to license, certify or register any licensees licensed pursuant to this part.
  3. Nonresident court reporters desiring to make a verbatim record of any testimony of a proceeding, the jurisdiction of which is within the courts of this state or where appeal to any court of this state is allowable by law, shall make application for a nonresident license. The applicant shall make application on the same forms as required of other applicants, shall pay a fee in an amount determined by the board and shall present proof that the applicant is a competent licensed court reporter in another state or certified by NCRA, NVRA or AAERT. The board shall issue a nonresident license upon the finding the applicant has met these requirements. The license shall be valid for a period not to exceed two (2) years from the date of issuance. A nonresident court reporter shall reapply for licensure every two (2) years. A licensure fee in an amount determined by the board shall be required.
  4. The board shall establish fees appropriate for processing reciprocal licensing.

Acts 2009, ch. 450, § 1.

Effective Dates. Acts 2009, ch. 450, § 3. July 1, 2010; provided, that for the purpose of promulgating rules and regulations and appointment of board members, the act shall take effect June 23, 2009.

20-9-611. Fees for licensure.

The fees for licensure pursuant to this part shall be established by the board and shall cover a two-year period from the date of issuance or renewal of the license. All licenses shall expire June 30 in the year of expiration and all renewals will be effective July 1; provided, however, an initial license not issued on July 1 shall be valid from the date of issuance until June 30 of the second year from the June 30 preceding the date of issuance. The board shall impose a prorated fee for any license that is for a period less than twenty-four (24) months. All moneys collected pursuant to this part shall be deposited into the board of court reporting fund. All expenses incurred by the board in implementing and administering this part shall be paid out of the fund; provided, that the expenses of the board shall not be in excess of the moneys in the fund. The board may charge and collect the following fees, which shall be deposited into the fund:

  1. An application fee for a temporary or regular license;
  2. An examination fee, if applicable;
  3. A renewal fee for a temporary or regular license;
  4. A reinstatement fee for any application for reinstatement of a temporary or regular license that has been revoked or suspended; and
  5. A late renewal fee for the renewal of a license after the due date, which shall be payment of the renewal fee plus a penalty as set by the board for each month that elapses before payment is tendered; provided, however, that delinquency of more than six (6) months shall result in revocation of licensure.

Acts 2009, ch. 450, § 1; 2010, ch. 1123, § 4.

Amendments. The 2010 amendment added the second and third sentences in the introductory paragraph.

Effective Dates. Acts 2009, ch. 450, § 3. July 1, 2010; provided, that for the purpose of promulgating rules and regulations and appointment of board members, the act shall take effect June 23, 2009.

Acts 2010, ch. 1123, § 13. June 29, 2010.

20-9-612. License renewal — Continuing education — Notification of change of address.

  1. Each person licensed pursuant to this part shall apply for renewal of the license pursuant to dates established by the board. A renewal fee in an amount determined by the board shall be paid for renewal of the license for a two-year period.
  2. The board shall require specific continuing education as a condition for license renewal. In order to maintain licensure, all licensed court reporters and holders of a nonresident certificate will be required to obtain a minimum of two (2.0) continuing education credits over a two-year period in courses approved by the board or in compliance with the continuing education requirements of approved national or state associations. The two-year period will begin on July 1 of the year during which the reporter is initially licensed. No credits may be carried over to the following two-year term.
  3. The board may provide for the late renewal of a license that has lapsed and may require the payment of a late fee or an examination, or both, prior to issuing a renewal license.
  4. Licensees shall notify the board in writing of any change of address within thirty (30) days of the change.

Acts 2009, ch. 450, § 1.

Effective Dates. Acts 2009, ch. 450, § 3. July 1, 2010; provided, that for the purpose of promulgating rules and regulations and appointment of board members, the act shall take effect June 23, 2009.

20-9-613. Applications for grandfathering licensure to practice as court reporter — Automatic granting of licensure.

  1. Any person who is engaged in the practice of court reporting on or before January 1, 2010, and who:
    1. Provides to the board an affidavit setting forth past education and work experience as a court reporter and:
      1. An affidavit of a judge for whom the person has worked as an official court reporter;
      2. Affidavits of three (3) licensed attorneys; or
      3. Affidavits of two (2) licensed attorneys and one (1) court reporting firm owner, unrelated by blood or marriage to the person, and who have utilized the services of the court reporter or the affidavit of the court reporting firm owner may state that the applicant has engaged in the practice of court reporting, which attest to the court reporter's proficiency in court reporting;
    2. Provides proof of passage of the National Court Reporters Association Registered Professional Reporter examination, the National Verbatim Reporters Association Certified Verbatim Reporter examination, or the American Association of Electronic Reporters and Transcribers Certified Electronic Court Reporter examination; or
    3. Provides proof of a court reporter license issued by any state; provided, that the state has the same or more stringent requirements of this chapter;

      and upon payment of a fee in an amount determined by the board, shall be licensed to practice as a court reporter.

    1. Any member in good standing of the Tennessee Court Reporters Association who holds the certified court reporter examination designation on or before January 1, 2010, upon payment of the licensure fee in an amount determined by the board, shall be automatically granted a license pursuant to this part and thereby may practice as a court reporter.
    2. Any member in good standing of the Tennessee Court Reporters Association who holds the certified court reporter designation on or before January 1, 2010, and does not apply for licensure within one (1) year of July 1, 2010, shall be required to pass the licensed court reporter examination and pay applicable licensure fees in order to become a licensed court reporter.
    3. Any member in good standing of the Tennessee Court Reporters Association who holds the registered professional reporter designation, or higher, from the NCRA, NVRA or AAERT on or before January 1, 2010, upon payment of the licensure fee in an amount determined by the board, shall be automatically granted a license pursuant to this part and thereby may practice as a court reporter.
  2. The deadline for receiving applications under subsections (a) and (b) shall be July 1, 2011.
  3. On or before October 1, 2012, any person who provides satisfactory proof that such person graduated from a court reporting program in this state prior to January 1, 2012, shall be licensed to practice as a court reporter.

Acts 2009, ch. 450, § 1; 2010, ch. 1123, §§ 5, 6; 2012, ch. 960, § 1.

Amendments. The 2010 amendment rewrote (a) which read: “Any person who is engaged in the practice of court reporting on July 1, 2009, and who provides to the board an affidavit setting forth past education and work experience as a court reporter and an affidavit of a judge for whom the person has worked as an official court reporter or affidavits of three (3) licensed attorneys, unrelated by blood or marriage to the person, and who have utilized the services of the court reporter, which attest to the court reporter's proficiency in court reporting, upon payment of a fee in an amount determined by the board, shall be licensed to practice as a court reporter. The deadline for receiving applications for grandfathering shall be July 1, 2011.”; substituted “on or before January 1, 2010” for “on July 1, 2009” throughout (b); and added (c).

The 2012 amendment added (d).

Effective Dates. Acts 2009, ch. 450, § 3. July 1, 2010; provided, that for the purpose of promulgating rules and regulations and appointment of board members, the act shall take effect June 23, 2009.

Acts 2010, ch. 1123, § 13. June 29, 2010.

Acts 2012, ch. 960, § 2. May 10, 2012.

Attorney General Opinions. T.C.A. 20-9-613 does not unconstitutionally exclude from grandfather court reporter licensure status individuals who are not members of the Tennessee Court Reporters Association (“TCRA”) and include individuals on the basis of their TCRA membership.  The statute provides a mechanism for individuals who are not TCRA members to gain grandfather court reporter licensure status and has a rational basis to include TCRA membership among the qualifications making an individual eligible for grandfathering.  OAG 10-38, 2010 Tenn. AG LEXIS 38 (3/25/10).

20-9-614. Temporary license upon proof of graduation from court reporting program.

Any person who provides to the board satisfactory proof of graduation from a court reporting program or its equivalent shall, upon application to the board on forms approved by the board and payment of a fee in an amount determined by the board, be issued a temporary license to practice as a court reporter. This temporary license shall expire sixty (60) days following the date upon which the next board-approved examination for licensure is given. No more than three (3) additional temporary licenses shall be issued to any applicant who fails to pass the scheduled examination for licensure.

Acts 2009, ch. 450, § 1.

Effective Dates. Acts 2009, ch. 450, § 3. July 1, 2010; provided, that for the purpose of promulgating rules and regulations and appointment of board members, the act shall take effect June 23, 2009.

20-9-615. Inactive status.

The board shall establish an inactive status for persons who are not actively engaged in the practice of court reporting.

Acts 2009, ch. 450, § 1.

Effective Dates. Acts 2009, ch. 450, § 3. July 1, 2010; provided, that for the purpose of promulgating rules and regulations and appointment of board members, the act shall take effect June 23, 2009.

20-9-616. Disposition and disbursement of moneys collected — Budget — Contracting for services.

  1. Notwithstanding any other law to the contrary, all moneys collected pursuant to this part shall be deposited in the state treasury in a separate fund to be known as the Tennessee board of court reporting fund.
  2. Disbursements from this fund shall be made solely for the purpose of defraying expenses incurred in the implementation and enforcement of this part.
  3. No such expenses shall be payable from the general fund of the state; except for the initial expenses of the board prior to the collection of licensure fees sufficient to defray such expenses.
  4. Any part of the Tennessee board of court reporting fund remaining at the end of a fiscal year shall not revert to the general fund of the state, but shall be carried forward until expended in accordance with this part.
  5. The board shall budget annually, in advance, its expenditures for programs, services, allocated overhead or chargebacks and other normal operating expenses as determined by the board. These expenditures so established shall be budgeted at the beginning of the fiscal year by the board, not to exceed the fees to be received by the board, including the excesses accumulated in the fund of the board. The commissioner of finance and administration shall inform the board annually, in advance for budgeting purposes, of the allocation of all overhead or chargebacks to the board.
  6. Subject to approval of the comptroller of the treasury and the commissioner of finance and administration, the board may also contract for services to carry out this part.

Acts 2009, ch. 450, § 1; 2010, ch. 1123, § 8.

Amendments. The 2010 amendment added “; except for the initial expenses of the board prior to the collection of licensure fees sufficient to defray such expenses” to the end of (c).

Effective Dates. Acts 2009, ch. 450, § 3. July 1, 2010; provided, that for the purpose of promulgating rules and regulations and appointment of board members, the act shall take effect June 23, 2009.

Acts 2010, ch. 1123, § 13. June 29, 2010.

Chapter 10
Additur and Remittitur

20-10-101. Additur.

    1. In cases where, in the opinion of the trial judge, a jury verdict is not adequate to compensate the plaintiff or plaintiffs in compensatory damages or punitive damages, the trial judge may suggest an additur in such amount or amounts as the trial judge deems proper to the compensatory or punitive damages awarded by the jury, or both such classes of damages.
    2. If the additur is accepted by the defense, it shall then be ordered by the trial judge and become the verdict, and if not accepted, the trial judge shall grant the plaintiff's motion for a new trial because of the inadequacy of the verdict upon proper motion being made by the plaintiff.
    1. In all jury trials had in civil actions, after the verdict has been rendered and on motion for a new trial, when the trial judge is of the opinion that the verdict in favor of a party should be increased and an additur is suggested by the trial judge on that account, with the proviso that in case the party against whom the verdict has been rendered refuses to make the additur, a new trial will be awarded, the party against whom such verdict has been rendered may make such additur under protest, and appeal from the action of the trial judge to the court of appeals.
    2. The court of appeals shall review the action of the trial court suggesting an additur using the standard of review provided for in T.R.A.P. 13(d) applicable to decisions of the trial court sitting without a jury. If the court of appeals is of the opinion that the verdict of the jury should not have been increased or that the amount of the additur is improper, but that the judgment of the trial court is correct in all other respects, the case shall be reversed to that extent, and the court of appeals may order remitted all or any part of the additur.

Acts 1969, ch. 137, § 1; 1970, ch. 590, § 1; T.C.A., § 20-1330; Acts 1987, ch. 232, § 1.

Textbooks. Tennessee Forms (Robinson, Ramsey and Harwell), No. 1-59.02-2.

Tennessee Jurisprudence, 2 Tenn. Juris., Appeal and Error, §§ 258, 259; 9 Tenn. Juris., Damages, §§ 25, 41, 51; 20 Tenn. Juris., New Trials, § 16.

Law Reviews.

Family Law — Alexander v. Inman: The Tennessee Court of Appeals Establishes Guidelines for Contingent Attorneys' Fees in Domestic Relation Cases, 26 U. Mem. L. Rev. 1575 (1996).

Moving to Comparative Negligence in an Era of Tort Reform: Decisions for Tennessee (Carol A. Mutter), 57 Tenn. L. Rev. 199 (1990).

Paine on Procedure: Remittitur and Additur (Donald F. Paine), 42 Tenn B.J. 25 (2006).

Torts — Hodges v. S.C. Toof & Co.: New Substantive and Procedural Changes in the Awarding of Punitive Damages in Tennessee, 23 Mem. St. U.L. Rev. 239 (1992).

A Distinction Without a Difference: Revisiting the Constitutionality of Additur in Federal Courts, 48 U. Mem. L. Rev. 625 (2017).

Comparative Legislation. Additur and remittitur:

Ala. R.C.P. 59(f).

Ark.  Code §§ 16-64-124, 16-19-802.

Ga. O.C.G.A. § 5-6-10 et seq.

Miss.  Code Ann. § 11-1-55.

Cited: Smith v. Williams, 575 S.W.2d 503, 1978 Tenn. App. LEXIS 321, 9 A.L.R.4th 1033 (Tenn. Ct. App. 1978); Owen v. Locke, 650 S.W.2d 51, 1983 Tenn. App. LEXIS 558 (Tenn. Ct. App. 1983); Long v. Mattingly, 797 S.W.2d 889, 1990 Tenn. App. LEXIS 450 (Tenn. Ct. App. 1990); Alexander v. Inman, 903 S.W.2d 686, 1995 Tenn. App. LEXIS 70 (Tenn. Ct. App. 1995); Palanki v. Vanderbilt Univ., 215 S.W.3d 380, 2006 Tenn. App. LEXIS 731 (Tenn. Ct. App. 2006); Meals v. Ford Motor Co., — S.W.3d —, 2012 Tenn. App. LEXIS 234 (Tenn. Ct. App. Apr. 13, 2012); Gaw v. Vanderbilt Univ., — S.W.3d —, 2012 Tenn. App. LEXIS 255 (Tenn. Ct. App. Apr. 19, 2012); Johnson v. Beverly Nunis & Farmer's Ins. Exch., 383 S.W.3d 122, 2012 Tenn. App. LEXIS 277 (Tenn. Ct. App. Apr. 27, 2012).

NOTES TO DECISIONS

1. Constitutionality.

Where the trial judge was allowed to increase the amount of damages awarded to the plaintiff by the jury, the defendant's constitutional rights to a trial by jury were not violated because an additur was conditioned on the consent of the defendant. McCall v. Waer, 487 S.W.2d 308, 1972 Tenn. LEXIS 324 (Tenn. 1972).

The additur statute as applied to a nonconsenting plaintiff does not violate the right to trial by jury unless the jury verdict is so low as to evince prejudice, passion, or caprice, since the plaintiff is entitled to only one fair trial not two; accordingly, where the evidence was such as could reasonably have led the jury to disbelieve plaintiff's special damages, denial of new trial conditioned upon additur did not violate plaintiff's rights. Kaiser v. Cannon, 529 S.W.2d 235, 1975 Tenn. App. LEXIS 174 (Tenn. Ct. App. 1975). See case note under § 20-10-102.

2. Failure to Suggest Additur.

In suit for damages to hoisting equipment by railroad switch engine where jury awarded owner of hoisting equipment less than the undisputed amount of damages to equipment, trial court did not err in failing to suggest additur where under the facts of the case jury could have considered remote contributory negligence as mitigating damages. Gardner's Masonry Contractors, Inc. v. St. Louis S. F. R. Co., 63 Tenn. App. 288, 470 S.W.2d 945, 1971 Tenn. App. LEXIS 221 (Tenn. Ct. App. 1971), criticized, Street v. Calvert, 541 S.W.2d 576, 1976 Tenn. LEXIS 552 (1976), questioned, Woodruff v. Tomlin, 616 F.2d 924, 1980 U.S. App. LEXIS 20316 (1980).

Where the trial judge declined to suggest an additur, the Court of Appeals was not authorized to initiate an additur for the first time on appeal. Loftis v. Finch, 491 S.W.2d 370, 1972 Tenn. App. LEXIS 279 (Tenn. Ct. App. 1972).

In eminent domain case where parties stipulated there were no incidental expenses, it was error as a matter of law for court to suggest an additur for moving expenses which are incidental expenses. State ex rel. Smith v. Huffaker, 503 S.W.2d 106, 1973 Tenn. LEXIS 435 (Tenn. 1973).

Where the jury's verdict in wrongful death action was not within the “range of reasonableness,” the trial court should have suggested an additur or granted a new trial. Wilkerson v. Altizer, 845 S.W.2d 744, 1992 Tenn. App. LEXIS 325 (Tenn. Ct. App. 1992), rehearing denied, — S.W.2d —, 1992 Tenn. App. LEXIS 613 (Tenn. Ct. App. July 20, 1992), appeal denied, 845 S.W.2d 744, 1992 Tenn. LEXIS 580 (Tenn. 1992); Buchanan v. Harris, 902 S.W.2d 941, 1995 Tenn. App. LEXIS 141 (Tenn. Ct. App. 1995).

In accord with Loftis v. Finch.Buchanan v. Harris, 902 S.W.2d 941, 1995 Tenn. App. LEXIS 141 (Tenn. Ct. App. 1995).

3. Prerequisites.

Where the trial judge was allowed to add such amounts as he deemed proper to the compensatory or punitive damages awarded by the jury, there must first have been a verdict in favor of the plaintiff. McCall v. Waer, 487 S.W.2d 308, 1972 Tenn. LEXIS 324 (Tenn. 1972).

4. Remedy Substantive.

Federal court sitting in Tennessee may apply the Tennessee additur statute, the latter having previously been determined to be substantive, not merely procedural, in nature. McCoy v. Wean United, Inc., 67 F.R.D. 495, 1975 U.S. Dist. LEXIS 13502 (D. Tenn. 1975).

5. Purpose.

The remittitur and additur statutes were enacted for the purpose of giving the plaintiff, in the case of remittiturs, and the defendant, in the case of additurs, the right to accept, under protest, and appeal, a right that had been denied those respective classes of litigants by case law prior to the enactment of such statutes. Smith v. Shelton, 569 S.W.2d 421, 1978 Tenn. LEXIS 619 (Tenn. 1978), overruled in part, Foster v. Amcon International, Inc., 621 S.W.2d 142, 1981 Tenn. LEXIS 477 (Tenn. 1981), superseded by statute as stated in, Palanki v. Vanderbilt Univ., 215 S.W.3d 380, 2006 Tenn. App. LEXIS 731 (Tenn. Ct. App. 2006).

6. Scope of Review.

If it is determined on appeal that the jury's verdict is within the range of reasonableness or that both the jury's and the trial judge's awards are within that range, the appellate court must restore the jury verdict; if only the trial judge's award is within the range, it must be affirmed; if neither are within the range of reasonableness, the court of appeals should make appropriate use of remittitur or additur and render judgment within the range of reasonableness based upon the credible proof of damages. Smith v. Shelton, 569 S.W.2d 421, 1978 Tenn. LEXIS 619 (Tenn. 1978), overruled in part, Foster v. Amcon International, Inc., 621 S.W.2d 142, 1981 Tenn. LEXIS 477 (Tenn. 1981), superseded by statute as stated in, Palanki v. Vanderbilt Univ., 215 S.W.3d 380, 2006 Tenn. App. LEXIS 731 (Tenn. Ct. App. 2006).

Where a case is tried with the intervention of a jury, the appeal is expressly governed by § 27-3-108 (repealed), being in the nature of a writ of error, and neither the trial judge's disagreement with the amount of the jury verdict, nor acceptance of a remittitur or additur rather than a new trial, provides a basis for the application of § 27-3-103 (repealed). Smith v. Shelton, 569 S.W.2d 421, 1978 Tenn. LEXIS 619 (Tenn. 1978), overruled in part, Foster v. Amcon International, Inc., 621 S.W.2d 142, 1981 Tenn. LEXIS 477 (Tenn. 1981), superseded by statute as stated in, Palanki v. Vanderbilt Univ., 215 S.W.3d 380, 2006 Tenn. App. LEXIS 731 (Tenn. Ct. App. 2006).

Appellate review of a trial judge's actions in making use of remittitur or additur resolves into a determination of whether or not the jury verdict is within the range of reasonableness established by the credible proof and throughout the review, the jury's determinations should be given primary weight and the trial judge's secondary weight. Smith v. Shelton, 569 S.W.2d 421, 1978 Tenn. LEXIS 619 (Tenn. 1978), overruled in part, Foster v. Amcon International, Inc., 621 S.W.2d 142, 1981 Tenn. LEXIS 477 (Tenn. 1981), superseded by statute as stated in, Palanki v. Vanderbilt Univ., 215 S.W.3d 380, 2006 Tenn. App. LEXIS 731 (Tenn. Ct. App. 2006).

Even though the court of appeals is not satisfied with the amount of a verdict, it has no authority to suggest an additur to correct the failure of the trial judge to do so. State ex rel. Shaw v. Shofner, 573 S.W.2d 169, 1978 Tenn. App. LEXIS 312 (Tenn. Ct. App. 1978).

Cortazzo v. Blackburn, 912 S.W.2d 735, 1995 Tenn. App. LEXIS 527 (Tenn. Ct. App. 1995).

In accord with Shaw v. Shofner. See Cortazzo v. Blackburn, 912 S.W.2d 735, 1995 Tenn. App. LEXIS 527 (Tenn. Ct. App. 1995).

Circuit court erred in suggesting an additur of over $1,000,000 because, while specific explanations were provided as to why the trial court suggested the adjustments that it did, there was a lack of precision with which some of the additur figures were discussed/computed in the order, the suggested additur was so large that the resulting judgment bore no meaningful relationship to the original jury verdict, was a significant one, and was one that was substantially and qualitatively different than a verdict for $300,000, it was simply of a different ilk, and as such, totally destroyed the integrity of the verdict returned by the jury. Walton ex rel. Walton v. Tullahoma HMA, LLC, — S.W.3d —, 2018 Tenn. App. LEXIS 317 (Tenn. Ct. App. June 7, 2018).

7. —Standard.

This section imposes no standard of review upon an appellate court reviewing the grant of an additur. Foster v. Amcon International, Inc., 621 S.W.2d 142, 1981 Tenn. LEXIS 477 (Tenn. 1981), superseded by statute as stated in, Willoughby v. Bright, — S.W.2d —, 1990 Tenn. App. LEXIS 199 (Tenn. Ct. App. Mar. 26, 1990), superseded by statute as stated in, Fergus v. Action Cartage & Distribution, Inc., — S.W.2d —, 1990 Tenn. App. LEXIS 268 (Tenn. Ct. App. Apr. 17, 1990).

Henceforth the standard of appellate review where an additur or remittitur has been used in the trial court will be to ascertain whether the trial judge's actions in increasing or decreasing a verdict were justified, giving due credit to the jury's decision on the credibility of the witnesses and that of the trial judge in his capacity as thirteenth juror. Foster v. Amcon International, Inc., 621 S.W.2d 142, 1981 Tenn. LEXIS 477 (Tenn. 1981), superseded by statute as stated in, Willoughby v. Bright, — S.W.2d —, 1990 Tenn. App. LEXIS 199 (Tenn. Ct. App. Mar. 26, 1990), superseded by statute as stated in, Fergus v. Action Cartage & Distribution, Inc., — S.W.2d —, 1990 Tenn. App. LEXIS 268 (Tenn. Ct. App. Apr. 17, 1990); Burlison v. Rose, 701 S.W.2d 609, 1985 Tenn. LEXIS 579 (Tenn. 1985).

The standard of review pertaining to questions of additur or remittitur in the court of appeals is covered by T.R.A.P. 13(d). Thrailkill v. Patterson, 879 S.W.2d 836, 1994 Tenn. LEXIS 196 (Tenn. 1994).

8. Authority of Trial Judge.

It is the exclusive province of the jury to assess damages within the range of reasonableness established by the credible proof; and trial judges are without authority to reduce or increase jury verdicts that are between the upper and lower limits of that range, but if a trial judge sitting as thirteenth juror cannot approve a jury verdict that is within the range or reasonableness established by the credible proof, he has the authority to order a new trial, but not to increase or reduce the verdict. Smith v. Shelton, 569 S.W.2d 421, 1978 Tenn. LEXIS 619 (Tenn. 1978), overruled in part, Foster v. Amcon International, Inc., 621 S.W.2d 142, 1981 Tenn. LEXIS 477 (Tenn. 1981), superseded by statute as stated in, Palanki v. Vanderbilt Univ., 215 S.W.3d 380, 2006 Tenn. App. LEXIS 731 (Tenn. Ct. App. 2006).

Trial judges may suggest adjustments when the jury verdict is within the range of reasonableness, as an alternative to the practice of granting a new trial, if they are of the opinion that the jury verdict is not adequate. Foster v. Amcon International, Inc., 621 S.W.2d 142, 1981 Tenn. LEXIS 477 (Tenn. 1981), superseded by statute as stated in, Willoughby v. Bright, — S.W.2d —, 1990 Tenn. App. LEXIS 199 (Tenn. Ct. App. Mar. 26, 1990), superseded by statute as stated in, Fergus v. Action Cartage & Distribution, Inc., — S.W.2d —, 1990 Tenn. App. LEXIS 268 (Tenn. Ct. App. Apr. 17, 1990).

When the trial court grants a motion for an additur, it is acting in its capacity as “thirteenth juror,” and the right to jury trial clauses of the federal and state constitutions — which require that the jury be allowed to determine all disputed issues of fact — mandate that the trial court obtain the consent of the party against whom the additur is to be entered. And if that party does not accept the additur, the trial court must order a new trial. Spence v. Allstate Ins. Co., 883 S.W.2d 586, 1994 Tenn. LEXIS 251 (Tenn. 1994).

Evidence did not preponderate against a trial court's suggestion of an additur of $ 10,000 to the jury's verdict of $ 3,577 because: (1) the trial court expressed its disagreement with the amount of the verdict; (2) the trial judge's adjustment, which accounted for noneconomic damages, did not destroy the jury's verdict; and (3) the driver suffered a significant injury as a result of the car accident and had pain and suffering as a result of the injury. Bonner v. Deyo, — S.W.3d —, 2014 Tenn. App. LEXIS 787 (Tenn. Ct. App. Dec. 5, 2014).

9. —Guidelines.

This section sets out no guidelines for the trial judge to follow in granting an additur. Foster v. Amcon International, Inc., 621 S.W.2d 142, 1981 Tenn. LEXIS 477 (Tenn. 1981), superseded by statute as stated in, Willoughby v. Bright, — S.W.2d —, 1990 Tenn. App. LEXIS 199 (Tenn. Ct. App. Mar. 26, 1990), superseded by statute as stated in, Fergus v. Action Cartage & Distribution, Inc., — S.W.2d —, 1990 Tenn. App. LEXIS 268 (Tenn. Ct. App. Apr. 17, 1990).

A trial judge, in suggesting additur, must set a reasonable time in which defendant may accept the suggestion, to be determined at the discretion of the trial judge, but not to exceed 30 days. The 30 day limit does not preclude the trial court from enlarging the time under Tenn. R. Civ. P. 6.02. Evans v. Wilson, 776 S.W.2d 939, 1989 Tenn. LEXIS 394 (Tenn. 1989), rehearing denied, — S.W.2d —, 1989 Tenn. LEXIS 468 (Tenn. 1989).

10. Authority of Appellate Court.

The Tennessee Court of Appeals does not have the authority to grant an additur under T.C.A. § 20-10-101. Kinnard v. Taylor, 39 S.W.3d 120, 2000 Tenn. App. LEXIS 331 (Tenn. Ct. App. 2000).

Collateral References. New Trial 161.

20-10-102. Remittitur.

  1. In all jury trials had in civil actions, after the verdict has been rendered and on motion for a new trial, when the trial judge is of the opinion that the verdict in favor of a party should be reduced and a remittitur is suggested by the trial judge on that account, with the proviso that in case the party in whose favor the verdict has been rendered refuses to make the remittitur, a new trial will be awarded, the party in whose favor such verdict has been rendered may make such remittitur under protest, and appeal from the action of the trial judge to the court of appeals.
  2. The court of appeals shall review the action of the trial court suggesting a remittitur using the standard of review provided for in T.R.A.P. 13(d) applicable to decisions of the trial court sitting without a jury. If, in the opinion of the court of appeals, the verdict of the jury should not have been reduced, but the judgment of the trial court is correct in other respects, the case shall be reversed to that extent, and judgment shall be rendered in the court of appeals for the full amount originally awarded by the jury in the trial court.

Acts 1911, ch. 29, § 1; Shan., § 4852a1; Code 1932, § 8987; Acts 1949, ch. 253, § 1; C. Supp. 1950, § 8987; T.C.A. (orig. ed.), § 27-118; Acts 1987, ch. 232, § 2.

Cross-References. Remittitur where sum found exceeds jurisdiction of general sessions court, § 16-15-726.

Textbooks. Tennessee Forms (Robinson, Ramsey and Harwell), No. 1-59.02-2.

Tennessee Jurisprudence, 2 Tenn. Juris., Appeal and Error, §§ 30, 51, 122, 238, 246-259; 9 Tenn. Juris., Damages, § 28.

Law Reviews.

Moving to Comparative Negligence in an Era of Tort Reform: Decisions for Tennessee (Carol A. Mutter), 57 Tenn. L. Rev. 199 (1990).

Paine on Procedure: Remittitur and Additur (Donald F. Paine), 42 Tenn B.J. 25 (2006).

Torts — Hodges v. S.C. Toof & Co.: New Substantive and Procedural Changes in the Awarding of Punitive Damages in Tennessee, 23 Mem. St. U.L. Rev. 239 (1992).

A Distinction Without a Difference: Revisiting the Constitutionality of Additur in Federal Courts, 48 U. Mem. L. Rev. 625 (2017).

NOTES TO DECISIONS

1. Decisions Prior to 1949 Amendment.

2. —Passion, Prejudice or Caprice.

Passion may be defined as a violent agitation of mind or a strong and deep feeling or excitement and jury verdict which is product of sympathy falls within this statute. Sutherland v. Keen, 29 Tenn. App. 303, 203 S.W.2d 917, 1947 Tenn. App. LEXIS 72 (Tenn. Ct. App. 1947).

Suggested remittitur by trial court was error where there was nothing to indicate that verdict was due to passion, prejudice or unaccountable caprice. Waller v. Skelton, 186 Tenn. 433, 211 S.W.2d 445, 1948 Tenn. LEXIS 601 (1948).

The rule that if the amount of a verdict is at variance with the decided weight of evidence, prejudice may be inferred is no way affected by this section. Board of Mayor & Aldermen v. Moore, 33 Tenn. App. 561, 232 S.W.2d 410, 1950 Tenn. App. LEXIS 116 (Tenn. Ct. App. 1950).

3. —Application.

The action of the trial judge in a federal court in requiring remittitur as a condition of denying a motion for a new trial is not reviewable under this section, since it would require a trial judge, sitting in a federal court, to decide on motion for new trial the question of fact whether the size of the verdict was such as to indicate passion, prejudice, or corruption, and it would also require a federal court of review to determine for itself such questions of fact, all of which is contrary to the settled practice in federal courts. The section does not apply to the personal conduct of the judge in discharge of his separate functions. Bristol Gas & Electric Co. v. Boy, 261 F. 297, 1919 U.S. App. LEXIS 1767 (6th Cir. Tenn. 1919).

Application of statute prior to 1949 amendment was limited to cases where judgment was so excessive as to indicate passion, prejudice, or caprice. Southern R. Co. v. Black Diamond Collieries, Inc., 9 Tenn. App. 225, — S.W.2d —, 1928 Tenn. App. LEXIS 227 (Tenn. Ct. App. 1928); Yarbrough v. Louisville & N. R. Co., 11 Tenn. App. 456, 1930 Tenn. App. LEXIS 28 (1930); Ezell v. Post Sign Co., 30 Tenn. App. 256, 205 S.W.2d 13, 1947 Tenn. App. LEXIS 83 (1947).

4. —Requirement for Appeal.

Prior to 1949 amendment the record had to affirmatively show that a suggestion of remittitur by the court was based on the ground that the court thought the verdict was so excessive as to indicate passion, prejudice, corruption, partiality or unaccountable caprice. Rice-Stix Dry Goods Co. v. Self, 20 Tenn. App. 498, 101 S.W.2d 132, 1935 Tenn. App. LEXIS 17 (Tenn. Ct. App. 1935); Chumley v. Anderton, 20 Tenn. App. 621, 103 S.W.2d 331, 1936 Tenn. App. LEXIS 54 (Tenn. Ct. App. Oct. 10, 1936); Harrison v. Graham, 21 Tenn. App. 189, 107 S.W.2d 517, 1937 Tenn. App. LEXIS 19 (1937); Sweeney v. Carter, 24 Tenn. App. 6, 137 S.W.2d 892, 1939 Tenn. App. LEXIS 4 (1939); Rea Const. Co. v. Lane, 25 Tenn. App. 125, 152 S.W.2d 1033, 1941 Tenn. App. LEXIS 83 (1941); Ezell v. Post Sign Co., 30 Tenn. App. 256, 205 S.W.2d 13, 1947 Tenn. App. LEXIS 83 (1947).

Plaintiff was entitled to review of suggested remittitur by trial court where minute entry showed suggested remittitur was based on ground that verdict indicated passion, prejudice or unaccountable caprice on part of jury though trial court in previously passing on suggested remittitur in his comment indicated it was based on distrust of medical opinion as to permanency of injuries of plaintiff. Waller v. Skelton, 186 Tenn. 433, 211 S.W.2d 445, 1948 Tenn. LEXIS 601 (1948).

5. —Appeal.

Under this section a party accepting a remittitur under protest may appeal from such action of the trial judge to the court of appeals and have reviewed the propriety of the trial judge in suggesting the remittitur without having moved for a new trial. Jones v. Knoxville, 172 Tenn. 1, 108 S.W.2d 882, 1937 Tenn. LEXIS 42 (1937).

When trial judge overruled motion for new trial and suggested a remittitur which plaintiff accepted under protest he had authority to grant plaintiff an appeal and allow 30 days for perfecting the appeal and settling bill of exceptions. Waller v. Skeleton, 31 Tenn. App. 103, 212 S.W.2d 690, 1948 Tenn. App. LEXIS 76 (Tenn. Ct. App. 1948), cert. denied, Waller v. Skelton, 186 Tenn. 433, 211 S.W.2d 445, 1948 Tenn. LEXIS 601 (1948).

Party in whose favor adjustment is made has right to appeal adequacy of remittitur, but not right to reject it and receive new trial. City of Gatlinburg v. Fox, 962 S.W.2d 479, 1998 Tenn. LEXIS 155 (Tenn. 1998).

Trial court erred in granting new trial when party in whose favor verdict was rendered accepted remittitur but other party did not. City of Gatlinburg v. Fox, 962 S.W.2d 479, 1998 Tenn. LEXIS 155 (Tenn. 1998).

6. Decisions Since 1949 Amendment.

Statement of court disapproving the amount of damages and suggesting a remittitur did not indicate that the trial court disapproved the verdict of the jury or the finding of negligence as to the other party. Spence v. Carne, 40 Tenn. App. 580, 292 S.W.2d 438, 1954 Tenn. App. LEXIS 170 (Tenn. Ct. App. 1954).

7. —Constitutionality.

The practice of curing an excessive verdict by remittitur even when the excess is so shocking as to evince passion, prejudice, or caprice does not deprive a defendant of his constitutional rights to a jury trial, because in such cases the jury has decided the issue of liability and the court has merely adjusted the amount of the award to conform the verdict to the proof beyond which there is no evidence to support the verdict. Pitts v. Exxon Corp., 596 S.W.2d 830, 1980 Tenn. LEXIS 435 (Tenn. 1980), overruled, City of Gatlinburg v. Fox, 962 S.W.2d 479, 1998 Tenn. LEXIS 155 (Tenn. 1998).

8. —Reduction of Verdict.

It is not necessary for the court to find that a verdict is so excessive as to indicate passion, prejudice, corruption, partiality, or unaccountable caprice on the part of the jury, since the court only considers whether or not the verdict should be reduced. Streetman v. Richardson, 37 Tenn. App. 524, 266 S.W.2d 838, 1953 Tenn. App. LEXIS 106 (Tenn. Ct. App. 1953).

Where evidence showed that plaintiff's only expense for false arrest and prosecution was $300 though he did suffer humiliation and embarrassment a verdict for $7,500 was excessive and was reduced to $3,000. Streetman v. Richardson, 37 Tenn. App. 524, 266 S.W.2d 838, 1953 Tenn. App. LEXIS 106 (Tenn. Ct. App. 1953).

It is not necessary for the court to find that a verdict is so excessive as to indicate passion, prejudice, corruption, partiality, or unaccountable caprice on the part of the jury since the court only considers whether or not the verdict should be reduced. Treece v. Hamilton, 53 Tenn. App. 13, 378 S.W.2d 194, 1963 Tenn. App. LEXIS 126 (Tenn. Ct. App. 1963).

Motion for remittitur could not be used to show advance payment on judgment arising out of automobile accident, since defendant did not disagree with amount of verdict but rather claimed partial satisfaction and proper procedure would have been post-judgment motion to show proof of advance payment, but supreme court would not hold that judgment debtor was deprived of relief by suit in equity to enjoin collection of amount of advance payment a second time. Byrd v. Stuart, 224 Tenn. 46, 450 S.W.2d 11, 1969 Tenn. LEXIS 378 (1969).

Trial court did not err in determining that the amount of damages the jury awarded a married couple for injuries to one of the spouse's back and neck and for loss of consortium was excessive and in remitting the amount of damages. Miller v. Choo Choo Ptnrs., L.P., 73 S.W.3d 897, 2001 Tenn. App. LEXIS 821 (Tenn. Ct. App. 2001).

In a driver's personal injury action wherein the jury's award of damages totaled $ 116,493.22, a trial court erred in its suggestion of an overall $ 45,000 remittitur, T.C.A. § 20-10-102, because the evidence preponderated in favor of the jury's assessment of the driver's economic and non-economic damages; the evidence showed the driver sustained significant injuries and would continue to have pain and a loss of physical vigor as a result of the accident. Johnson v. Beverly Nunis & Farmer's Ins. Exch., 383 S.W.3d 122, 2012 Tenn. App. LEXIS 277 (Tenn. Ct. App. Apr. 27, 2012).

Trial court erred in suggesting a remittitur of a truck driver's loss of earning capacity award from $ 1.45 million to $ 1.1 million because a vocational economic analyst's assessment that the truck driver was unemployable was based upon the truck driver's limited credentials essentially leaving him unable to compete for the jobs which he could physically perform and not upon any medical determination the truck driver was physically unable to return to any job. Borne v. Celadon Trucking Servs., — S.W.3d —, 2014 Tenn. App. LEXIS 455 (Tenn. Ct. App. July 31, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 1089 (Tenn. Dec. 18, 2014), modified, 532 S.W.3d 274, 2017 Tenn. LEXIS 702 (Tenn. Oct. 20, 2017).

Trial court's suggested remittitur of a pain and suffering and mental anguish damages award to a thirty-year-old injured truck driver from $ 750,000 to $ 500,000 was not against the preponderance of the evidence because the truck driver was unable to return to work, a fact that led to both depression and anxiety, and the truck driver's physical limitations brought him a sense of shame. Borne v. Celadon Trucking Servs., — S.W.3d —, 2014 Tenn. App. LEXIS 455 (Tenn. Ct. App. July 31, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 1089 (Tenn. Dec. 18, 2014), modified, 532 S.W.3d 274, 2017 Tenn. LEXIS 702 (Tenn. Oct. 20, 2017).

Trial court's suggested remittitur of permanent injury damages award to a thirty-year-old injured truck driver from $ 750,000 to $ 100,000 was not against the preponderance of the evidence because the permanent injury award represented the permanent damage to the truck driver's spinal disc and the accompanying inconvenience and loss of physical vigor; the trial court may have suggested a remittitur in order to avoid a double recovery. Borne v. Celadon Trucking Servs., — S.W.3d —, 2014 Tenn. App. LEXIS 455 (Tenn. Ct. App. July 31, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 1089 (Tenn. Dec. 18, 2014), modified, 532 S.W.3d 274, 2017 Tenn. LEXIS 702 (Tenn. Oct. 20, 2017).

Trial court's suggested remittitur of loss of enjoyment of life damages award to a thirty-year-old injured truck driver from $ 750,000 to $ 400,000 was against the preponderance of the evidence because the truck driver was able to partake in some activities; the appellate court exercised its statutory authority and reduced the award to $ 50,000. Borne v. Celadon Trucking Servs., — S.W.3d —, 2014 Tenn. App. LEXIS 455 (Tenn. Ct. App. July 31, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 1089 (Tenn. Dec. 18, 2014), modified, 532 S.W.3d 274, 2017 Tenn. LEXIS 702 (Tenn. Oct. 20, 2017).

Evidence preponderated against the jury's award of $1,455,000 because there was no evidence to support any loss of earning capacity $120,353 greater than the amount calculated by the vocational analyst; thus, the jury's award for loss of earning capacity was remitted to $1,334,647. Borne v. Celadon Trucking Servs., — S.W.3d —, 2020 Tenn. App. LEXIS 48 (Tenn. Ct. App. Feb. 4, 2020).

Evidence preponderated against the trial court's remittitur of loss of earning capacity to $1,100,000 because the vocational analyst, in view of plaintiff's low level of reading comprehension, opined that plaintiff would be able to perform only about 2% of the jobs in the labor market, that employers would be reluctant to hire someone like plaintiff who had been out of work for several years, and that there were very few occupations open to plaintiff; and the trial court's finding that plaintiff desired to work and had a strong work ethic did not overcome that testimony. Borne v. Celadon Trucking Servs., — S.W.3d —, 2020 Tenn. App. LEXIS 48 (Tenn. Ct. App. Feb. 4, 2020).

9. Guidelines.

A trial judge, in suggesting remittitur, must set a reasonable time in which the party in whose favor the verdict was rendered may accept the suggestion, to be determined at the discretion of the trial judge but not to exceed 30 days. The 30 day limit does not preclude the trial court from enlarging the time under Tenn. R. Civ. P. 6.02. Evans v. Wilson, 776 S.W.2d 939, 1989 Tenn. LEXIS 394 (Tenn. 1989), rehearing denied, — S.W.2d —, 1989 Tenn. LEXIS 468 (Tenn. 1989).

Driver in an action involving an automobile accident was not entitled to a new trial because there was substantial compliance with T.C.A. § 20-10-102 and case law concerning the acceptance of a remittitur; the final judgment evidenced the other driver's acceptance of the remittitur and was an appealable final order. Webb v. Canada, — S.W.3d —, 2007 Tenn. App. LEXIS 338 (Tenn. Ct. App. May 25, 2007).

10. —Effect of Erroneous Reduction.

Where action of trial court in suggesting remittitur and reducing judgment was erroneous the supreme court reversed the trial court and reinstated judgment to full amount awarded by jury. Garner v. State, 37 Tenn. App. 510, 266 S.W.2d 358, 1953 Tenn. App. LEXIS 105 (Tenn. Ct. App. 1953).

Where jury's verdict was not excessive for the nature of plaintiff's injuries, it was the duty of the court of appeals to reverse the action of the trial court in suggesting a remittitur and to restore the full amount. Harber v. Smith, 40 Tenn. App. 648, 292 S.W.2d 468, 1956 Tenn. App. LEXIS 158 (Tenn. Ct. App. 1956).

Where, in action against insurance company to recover on policy, jury returned verdict for plaintiff for amount of policy and also for statutory penalty for failure to pay, and trial judge set aside verdict as to penalty, court of appeals, instead of remanding case for new trial, restored the penalty found by the jury. Palatine Ins. Co. v. E. K. Hardison Seed Co., 42 Tenn. App. 388, 303 S.W.2d 742, 1957 Tenn. App. LEXIS 90 (Tenn. Ct. App. 1957).

Where there was ample evidence in the record to support finding a jury as to amount of compensatory damages in ejectment proceeding and complainant accepted remittitur under protest, court of appeals had authority to reverse order of chancellor suggesting remittitur and restore full amount of award. McDonald v. Stone, 45 Tenn. App. 172, 321 S.W.2d 845, 1958 Tenn. App. LEXIS 121 (Tenn. Ct. App. 1958).

Court of appeals is authorized to require remittiturs commensurate with its judgment where it cannot conscientiously approve verdict but it cannot do so where it does not find verdict is excessive and there is nothing to indicate that jury was influenced by sympathy, passion or caprice. Williams v. Daniels, 48 Tenn. App. 112, 344 S.W.2d 555, 1960 Tenn. App. LEXIS 109 (Tenn. Ct. App. 1960).

Although this court will give great weight to the action of the trial court in ordering a remittitur, award of $25,000 for wrongful death of a 46 year old man with life expectancy of 23 years and annual earning capacity of $4,500 was not excessive, and trial court should not have suggested a remittitur. Templeton v. Quarles, 52 Tenn. App. 419, 374 S.W.2d 654, 1963 Tenn. App. LEXIS 103 (Tenn. Ct. App. 1963).

11. —Consideration by Court of Appeals.

The court of appeals will give great weight and consideration to the action of the trial court in ordering a remittitur and will not disturb the same unless there has been some abuse of the statutory discretionary authority. Spence v. Carne, 40 Tenn. App. 580, 292 S.W.2d 438, 1954 Tenn. App. LEXIS 170 (Tenn. Ct. App. 1954); Wilson v. Cook Mfg. Co., 56 Tenn. App. 129, 405 S.W.2d 584, 1966 Tenn. App. LEXIS 217 (Tenn. Ct. App. 1966).

Where verdict was a general verdict, court of appeals could not say that trial court applied remittitur to any particular item of damages or that the verdict was excessive as to that item of damages after remittitur, where substantial evidence supported the amount of the general verdict after remittitur. Treece v. Hamilton, 53 Tenn. App. 13, 378 S.W.2d 194, 1963 Tenn. App. LEXIS 126 (Tenn. Ct. App. 1963).

This section authorizes the court of appeals to restore entire verdict and judgment or such portion thereof as it may think should be restored. Wilson v. Cook Mfg. Co., 56 Tenn. App. 129, 405 S.W.2d 584, 1966 Tenn. App. LEXIS 217 (Tenn. Ct. App. 1966).

If it is determined on appeal that the jury's verdict is within the range of reasonableness or that both the jury's and the trial judge's awards are within that range, the appellate court must restore the jury verdict; if only the trial judge's award is within the range, it must be affirmed; if neither are within the range of reasonableness, the court or appeals should make appropriate use of remittitur or additur and render judgment within the range of reasonableness based upon the credible proof of damages. Smith v. Shelton, 569 S.W.2d 421, 1978 Tenn. LEXIS 619 (Tenn. 1978), overruled in part, Foster v. Amcon International, Inc., 621 S.W.2d 142, 1981 Tenn. LEXIS 477 (Tenn. 1981), superseded by statute as stated in, Palanki v. Vanderbilt Univ., 215 S.W.3d 380, 2006 Tenn. App. LEXIS 731 (Tenn. Ct. App. 2006).

Appellate review of a trial judge's actions in making use of remittitur or additur resolves into a determination of whether or not the jury verdict is within the range of reasonableness established by the credible proof and throughout the review, the jury's determinations should be given primary weight and the trial judge's secondary weight. Smith v. Shelton, 569 S.W.2d 421, 1978 Tenn. LEXIS 619 (Tenn. 1978), overruled in part, Foster v. Amcon International, Inc., 621 S.W.2d 142, 1981 Tenn. LEXIS 477 (Tenn. 1981), superseded by statute as stated in, Palanki v. Vanderbilt Univ., 215 S.W.3d 380, 2006 Tenn. App. LEXIS 731 (Tenn. Ct. App. 2006).

Appellate courts customarily conduct a three-step review of a trial court's adjustment of a jury's damage award: (1) the court will examine the reasons for the trial court's action since adjustments are proper only when the court disagrees with the amount of the verdict; (2) the court will examine the amount of the suggested adjustment since adjustments that “totally destroy” the jury's verdict are impermissible; (3) the court will review the proof of damages to determine whether the evidence preponderates against the trial court's adjustment. Long v. Mattingly, 797 S.W.2d 889, 1990 Tenn. App. LEXIS 450 (Tenn. Ct. App. 1990).

Supreme Court of Tennessee adopts the Long v. Mattingly, 797 S.W.2d 889, 1990 Tenn. App. LEXIS 450 (Tenn. Ct. App. 1990), three-prong framework for appellate review of a trial court's suggested remittitur. Borne v. Celadon Trucking Servs., — S.W.3d —, 2013 Tenn. LEXIS 1107 (Tenn. Oct. 20, 2007).

When a trial judge has approved a jury award, review by appellate court is subject to the rule that if there is any material evidence to support the award it should not be disturbed. Benson v. Tennessee Valley Elec. Coop., 868 S.W.2d 630, 1993 Tenn. App. LEXIS 325 (Tenn. Ct. App. 1993).

The standard of review pertaining to questions of additur or remittitur in the court of appeals is covered by T.R.A.P. 13(d). Thrailkill v. Patterson, 879 S.W.2d 836, 1994 Tenn. LEXIS 196 (Tenn. 1994).

When reviewing a trial court's suggestion of remittitur, the court of appeals must use the standard of review that applies to findings of a trial judge, and determine whether the evidence preponderates against the trial judge's adjustment. Grandstaff v. Hawks, 36 S.W.3d 482, 2000 Tenn. App. LEXIS 355 (Tenn. Ct. App. 2000).

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).

Remittitur was suggested after an award of future medical expenses was made to the father after he was shot by a hunter because the only material evidence in the record on the issue of future medical expense was the general surgeon's estimate, which supported an award of not more than $ 2,250 for future medical expenses. Riley v. Orr, — S.W.3d —, 2010 Tenn. App. LEXIS 279 (Tenn. Ct. App. Apr. 19, 2010).

In a negligence action arising out of a car accident, a trial court's suggested remittitur of appellant's total award for loss of earning capacity was supported by a preponderance of the evidence, as the evidence failed to establish that a decline in income of a travel agency in which appellant was a part-owner was attributable to injuries appellant sustained in the accident; there was no competent evidence, medical or otherwise, to show that appellant could not travel or otherwise sell group travel trips after the accident. Oglesby v. Riggins, — S.W.3d —, 2011 Tenn. App. LEXIS 131 (Tenn. Ct. App. Mar. 17, 2011).

Because trial courts now have expanded authority to suggest remittitur based on the preponderance of the evidence, they also have the responsibility to explain the reasons for a remittitur. This is necessary to give the appellate court the baseline information needed to determine whether the evidence preponderates against the remittitur. In some cases, the appellate court will be able to review the remittitur decision even in the absence of any meaningful insight into the trial court's reasons for reducing the jury's award. In other cases, particularly where there is sharply conflicting evidence regarding damages, an appellate court's decision to soldier on in the absence of an explanation of the basis of the trial court's suggested remittitur may effectively deprive the parties of meaningful appellate review. Borne v. Celadon Trucking Servs., — S.W.3d —, 2013 Tenn. LEXIS 1107 (Tenn. Oct. 20, 2007).

12. —Authority of Trial Judge.

It is the exclusive province of the jury to assess damages within the range of reasonableness established by the credible proof; and trial judges are without authority to reduce or increase jury verdicts that are between the upper and lower limits of that range, but if a trial judge sitting as thirteenth juror cannot approve a jury verdict that is within the range of reasonableness established by the credible proof, he has the authority to order a new trial, but not to increase or reduce the verdict. Smith v. Shelton, 569 S.W.2d 421, 1978 Tenn. LEXIS 619 (Tenn. 1978), overruled in part, Foster v. Amcon International, Inc., 621 S.W.2d 142, 1981 Tenn. LEXIS 477 (Tenn. 1981), superseded by statute as stated in, Palanki v. Vanderbilt Univ., 215 S.W.3d 380, 2006 Tenn. App. LEXIS 731 (Tenn. Ct. App. 2006).

The record established that a remittitur was justified in the trial judge's capacity as thirteenth juror. Bates v. Jackson, 639 S.W.2d 925, 1982 Tenn. LEXIS 352 (Tenn. 1982).

In a wrongful death and survivor action arising from care and treatment of a nursing home resident, upon review under T.R.A.P. 13 and T.C.A. § 20-10-102(b), a trial court's suggested remittitur of the compensatory damages awarded to plaintiff was supported by its reasons for disagreeing with the jury's compensatory damage award; the evidence did not preponderate against the trial court's decision. McLemore v. Elizabethton Med. Investors, Ltd. P'ship, 389 S.W.3d 764, 2012 Tenn. App. LEXIS 415 (Tenn. Ct. App. June 22, 2012), appeal denied, McLemore v. Elizabethton Med. Investors LP, — S.W.3d —, 2012 Tenn. LEXIS 892 (Tenn. Nov. 27, 2012).

13. —Excessive Verdict.

A trial court may suggest a remittitur in any case involving unliquidated damages where the amount of the verdict is excessive. Murphy Truck Lines v. Brown, 203 Tenn. 414, 313 S.W.2d 440, 1958 Tenn. LEXIS 320 (1958).

The court of appeals had the power to reinstate part of the original judgment where the trial court was in error in suggesting a remittitur which was excessive. Murphy Truck Lines v. Brown, 203 Tenn. 414, 313 S.W.2d 440, 1958 Tenn. LEXIS 320 (1958).

Where jury returned a verdict of $750 for damage to motorcycle when the undisputed evidence showed that such motorcycle had a value of $371 it was proper for the court to correct the matter by remittitur and it was not necessary that the entire verdict be set aside. Fitzsimmons v. Brock, 46 Tenn. App. 526, 330 S.W.2d 563, 1958 Tenn. App. LEXIS 148 (Tenn. Ct. App. 1958).

Trial court did not err in only reducing a sixteen-million-dollar verdict to six million five hundred thousand dollars and, inter alia, the court had not erred in admitting testimony from a medical expert because the patient had had the burden of showing the necessity of a yearly cystoscopy examination as a preventative measure due to the increased risk of cancer in bladder augmentation patients, the testimony was elicited on cross-examination, and the jury charge rendered any prejudice which might have resulted from the doctor's testimony harmless. Palanki v. Vanderbilt Univ., 215 S.W.3d 380, 2006 Tenn. App. LEXIS 731 (Tenn. Ct. App. 2006).

Trial court did not err in reducing a sixteen-million-dollar verdict to six million five hundred thousand dollars because, inter alia, although the physical injuries included the negligent removal of ninety percent of the minor's bladder, two additional surgeries, chronic urinary tract infections, kidney reflux, extensive testing, and daily medication, it appeared that he would experience little ongoing physical pain as a result of the admitted negligence. Palanki v. Vanderbilt Univ., 215 S.W.3d 380, 2006 Tenn. App. LEXIS 731 (Tenn. Ct. App. 2006).

In an uninsured motor vehicle claim, the jury awarded the insured more than $10,000 over and above what evidence established to be for his medical expenses; the reason the trial court opted to suggest a remittitur of $10,135.55 was to reflect the difference between the amount the jury awarded for past medical expenses and the actual past medical expenses that were proved at trial. The remittitur did not totally destroy the jury's verdict, and the evidence supported the trial court's suggestion of remittitur. Hindman v. Doe, 241 S.W.3d 464, 2007 Tenn. App. LEXIS 336 (Tenn. Ct. App. May 24, 2007), appeal denied, — S.W.3d —, 2007 Tenn. LEXIS 853 (Tenn. Sept. 17, 2007).

Evidence did not preponderate against the trial court's determination that the verdict was excessive because the record contained no evidence of plaintiff having any significant physical problems before the accident; however, the case was remanded for a new trial solely on the issue of damages because the trial court's reduction was so substantial as to totally destroy the jury's verdict since it reduced the verdict approximately 71 percent. Adams v. Leamon, — S.W.3d —, 2013 Tenn. App. LEXIS 766 (Tenn. Ct. App. Nov. 25, 2013).

There was ample material evidence on which the jury could base its award of both non-economic and economic damages to the driver, including the verdict for loss of enjoyment of life and loss of consortium, although the insurer claimed that the award was excessive and the trial court should have granted a remittitur, and the damages were affirmed given the material evidence standard. Monypeny v. Kheiv, — S.W.3d —, 2015 Tenn. App. LEXIS 187 (Tenn. Ct. App. Apr. 1, 2015).

14. —Legislative Intent.

The clear legislative intent of this section and § 20-10-103 was to confer on the appellate courts full power and authority to revise and correct all errors consistent with recognized rules of appellate practice and procedure. Murphy Truck Lines v. Brown, 203 Tenn. 414, 313 S.W.2d 440, 1958 Tenn. LEXIS 320 (1958); Jones v. Cocke County, 61 Tenn. App. 555, 456 S.W.2d 665, 1970 Tenn. App. LEXIS 302 (Tenn. Ct. App. 1970).

The clear legislative intent of this section and § 20-10-103 was to confer on appellate courts full power and authority to revise and correct all errors relating to remittiturs suggested or not suggested by the trial court consistent with recognized rules of appellate practice and procedure. Jones v. Cocke County, 61 Tenn. App. 555, 456 S.W.2d 665, 1970 Tenn. App. LEXIS 302 (Tenn. Ct. App. 1970).

15. —Purpose of Act.

The purpose of the revisory authority granted the appellate courts by this section and § 20-10-103 is to avoid repeated trials of factual issues and at the same time to do equal justice to the parties. Murphy Truck Lines v. Brown, 203 Tenn. 414, 313 S.W.2d 440, 1958 Tenn. LEXIS 320 (1958).

The remittitur and additur statutes were enacted for the purpose of giving the plaintiff, in the case of remittiturs, and the defendant, in the case of additurs, the right to accept, under protest and appeal, a right that had been denied those respective classes of litigants by case law prior to the enactment of such statutes. Smith v. Shelton, 569 S.W.2d 421, 1978 Tenn. LEXIS 619 (Tenn. 1978), overruled in part, Foster v. Amcon International, Inc., 621 S.W.2d 142, 1981 Tenn. LEXIS 477 (Tenn. 1981), superseded by statute as stated in, Palanki v. Vanderbilt Univ., 215 S.W.3d 380, 2006 Tenn. App. LEXIS 731 (Tenn. Ct. App. 2006).

16. —Authority to Suggest Remittitur.

In rejectment action brought in chancery court where issue as to compensatory damages was tried by jury as authorized by § 21-1-103, chancellor had authority to suggest remittitur as to verdict on such damages even though verdict was binding. McDonald v. Stone, 45 Tenn. App. 172, 321 S.W.2d 845, 1958 Tenn. App. LEXIS 121 (Tenn. Ct. App. 1958).

In an uninsured motor vehicle claim, the verdict form sub-divided the total damage award into the various categories for which the insured was seeking and could recover for his injuries; the trial court was free to address an error by the jury with regard to one of the individual categories as its basis for suggesting remittitur, and thus the trial court did not err in suggesting remittitur with regards to the insured's past medical expenses. Hindman v. Doe, 241 S.W.3d 464, 2007 Tenn. App. LEXIS 336 (Tenn. Ct. App. May 24, 2007), appeal denied, — S.W.3d —, 2007 Tenn. LEXIS 853 (Tenn. Sept. 17, 2007).

17. —Federal Court Jurisdiction.

In action for personal injuries, in which jurisdiction was based upon diversity of citizenship, plaintiff was entitled to accept federal district judge's suggested remittitur, protest, and appeal the court's action under this statute. Mooney v. Henderson Portion Pack Co., 334 F.2d 7, 1964 U.S. App. LEXIS 4808 (6th Cir. Tenn. 1964).

Under Erie Railroad Co. v. Tompkins decision, this statute, permitting party receiving jury verdict to accept court-suggested remittitur under protest and then to appeal, will be applied in federal courts sitting in Tennessee. Mooney v. Henderson Portion Pack Co., 334 F.2d 7, 1964 U.S. App. LEXIS 4808 (6th Cir. Tenn. 1964).

18. —Reinstatement of Remittitur.

Court of appeals cannot reinstate remittitur if defendant is entitled to a new trial under its assignment of error. Cook & Nichols, Inc. v. Peat, Marwick, Mitchell & Co., 480 S.W.2d 542, 1971 Tenn. App. LEXIS 246 (Tenn. Ct. App. 1971).

19. —Appeal in Nature of Writ of Error.

Where a case is tried with the intervention of a jury, the appeal is expressly governed by § 27-3-108 (repealed), being in the nature of a writ of error, and neither the trial judge's disagreement with the amount of the jury verdict, nor acceptance or a remittitur or additur rather than a new trial, provides a basis for the application of § 27-3-103 (repealed). Smith v. Shelton, 569 S.W.2d 421, 1978 Tenn. LEXIS 619 (Tenn. 1978), overruled in part, Foster v. Amcon International, Inc., 621 S.W.2d 142, 1981 Tenn. LEXIS 477 (Tenn. 1981), superseded by statute as stated in, Palanki v. Vanderbilt Univ., 215 S.W.3d 380, 2006 Tenn. App. LEXIS 731 (Tenn. Ct. App. 2006).

20. Interest on Judgment.

Where the original verdicts and judgments were reduced by plaintiffs' remittitur under protest in the trial court, and further reduced by plaintiffs' remittitur under protest in the appellate court, but the original judgment of the trial court remained in effect except to the extent waived or remitted by plaintiffs; having waived a part of the principal of their judgments, plaintiffs also waived interest on the waived part of the judgments, so that they were entitled to interest only upon the remaining, unwaived portion of their judgments. Plaintiffs were entitled to interest on their reduced judgments from the date of the jury verdict to the date of payment. Long v. Mattingly, 817 S.W.2d 325, 1991 Tenn. App. LEXIS 388 (Tenn. Ct. App. 1991).

21. Properly Denied.

In parents'  medical malpractice suit, the record contained material evidence in support of the jury verdict awarding the minor patient, who was only a few days old at the time of injury, $ 500,000 in past and future pain and suffering and $ 800,000 for permanent impairment and disfigurement in light of the permanent nature of the injury and the fact that he sustained this injury so early in life; thus, remittitur was properly denied. Gaw v. Vanderbilt Univ., — S.W.3d —, 2012 Tenn. App. LEXIS 255 (Tenn. Ct. App. Apr. 19, 2012).

Because the employee prevailed only on his retaliation claim, the employer claimed that the jury erred in awarding the full measure of compensatory damages requested because such included damages for two claims that failed, and the employer sought remittitur or a new trial; however, there was nothing in the prayer for relief to indicate that the request for damages encompassed all three claims, and given that there was ample evidence to support the finding that the employee would suffer the effects of his disability for the remainder of his life, the trial court did not err in affirming the jury verdict in his favor. Ferguson v. Middle Tenn. State Univ., — S.W.3d —, 2015 Tenn. App. LEXIS 117 (Tenn. Ct. App. Mar. 11, 2015).

Because material evidence supported the jury's verdict in a condemnation case, the trial court's denial of the State's motion for remittitur was proper. State ex rel. Tenn. DOT v. Jones, — S.W.3d —, 2015 Tenn. App. LEXIS 511 (Tenn. Ct. App. June 25, 2015).

Trial court did not err by failing to suggest a remittitur because the damage award of $200,000 to plaintiffs was not excessive, as the evidence showed that plaintiffs, a husband and wife, lived in fear due to defendant's actions of making unfounded accusations and threatening them. Their fear manifested itself in both physical and emotional changes and for years they were robbed of one of the normal pleasures of life, living peacefully in their home. Holt v. Kirk, — S.W.3d —, 2019 Tenn. App. LEXIS 205 (Tenn. Ct. App. Apr. 30, 2019).

22. Properly Granted.

Trial court did not err in suggesting a remittitur of $ 40,000, the amount of the jury's award in a malicious prosecution action for loss of enjoyment of life, as the matters about which the owner testified were not proximately caused by the prosecution of the criminal trespass action, and other testimony offered by the owner were elements of mental anguish, for which the owner received compensation. Massingille v. Vandagriff, — S.W.3d —, 2013 Tenn. App. LEXIS 638 (Tenn. Ct. App. Sept. 24, 2013), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 157 (Tenn. Feb. 13, 2014).

Suggested remittitur of the verdict from $ 125,000 to $ 47,800 in this negligence case, related to a facial plaintiff received that burned her face, was proper; the trial court gave detailed reasons for its decision, including that the trial court was unable to identify any disfigurement of plaintiff, and while a reduction of the verdict by 61.8 percent was large, in the absence of any compelling argument, it was not found that the jury's verdict was totally destroyed by the suggested remittitur. West v. Epiphany Salon & Day Spa, LLC, — S.W.3d —, 2017 Tenn. App. LEXIS 255 (Tenn. Ct. App. Apr. 25, 2017).

Collateral References. 5 Am. Jur. 2d Appeal and Error §§ 939-945; 58 Am. Jur. 2d New Trial §§ 221, 225.

5, 5A C.J.S. Appeal and Error §§ 1498, 1653.

Appellate court's power to order remittitur of portion of actual damages awarded at trial while sustaining trial award of punitive damages. 97 A.L.R.2d 1145.

Court's power or right, without defendant's consent, to deny new trial upon condition of remittitur by plaintiff. 53 A.L.R. 783, 95 A.L.R. 1163.

Curing excessiveness of damages by remittitur in action by person injured for personal injuries not resulting in death. 46 A.L.R. 1230, 102 A.L.R. 1125, 11 A.L.R.3d 9, 11 A.L.R.3d 370, 12 A.L.R.3d 117, 12 A.L.R.3d 475, 12 A.L.R.4th 96, 13 A.L.R.4th 212, 14 A.L.R.4th 539, 15 A.L.R.4th 294, 15 A.L.R.4th 519, 16 A.L.R.4th 238, 16 A.L.R.4th 1127.

Death or personal injury, remittitur as curing error in failure to instruct jury as to reduction to present worth of damages for future loss on account of. 77 A.L.R. 1464, 154 A.L.R. 796.

Entire judgment, necessity of setting aside or reversing, because of error in allowing certain items, where the verdict or judgment purports to specify the amounts allowed respectively for the proper and improper item. 135 A.L.R. 1186.

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.

Power of appellate court to remit portion of verdict or judgment covering period barred by statute of limitations. 26 A.L.R.2d 956.

Remittitur of damages for personal injuries resulting in death of adult. 48 A.L.R. 817, 49 A.L.R.3d 934, 46 A.L.R.4th 220, 47 A.L.R.4th 100, 47 A.L.R.4th 134, 49 A.L.R.4th 1076, 50 A.L.R.4th 787.

Statute relating to excessiveness of damages as ground of reversal, constitutionality, construction and application of. 88 A.L.R. 943.

Verdict in excess of amount demanded as requiring new trial notwithstanding voluntary remittitur. 65 A.L.R.2d 1331.

20-10-103. Remittitur under protest — Review by supreme court.

  1. If the judgment of the trial court with regard to a remittitur is affirmed in the court of appeals, so that a party is required to make a remittitur or suffer a new trial, as in the judgment of the trial court, or if, by the opinion of the court of appeals, a further or a larger remittitur is required of the party in whose favor the verdict was rendered, or if after the case was tried in the lower court by the trial judge without a jury, or if after the case was tried in the lower court with a jury and no remittitur was suggested by the trial judge, a remittitur is first suggested or required in the court of appeals, on penalty of granting a new trial, then in each and all of these events the party in whose favor the verdict or judgment has been rendered may make the remittitur under protest in the court of appeals, and take the case, by application for permission to appeal, for review upon that point, to the supreme court.
  2. If, in the opinion of the supreme court, the verdict should not have been reduced, and the court of appeals was in error in affirming the action of the trial court as to the remittitur, or if the court of appeals was, itself, in error in suggesting a remittitur for the first time in that court, or in suggesting a further or larger remittitur than that suggested in the trial court, and if the judgment is otherwise correct, the case shall be reversed to that extent, and judgment shall be rendered in the supreme court for the full amount originally awarded by the jury or the trial judge sitting without a jury, as the case may be.

Acts 1911, ch. 29, § 2; Shan., § 4852a2; Code 1932, § 8988; Acts 1949, ch. 253, § 2; C. Supp. 1950, § 8988; T.C.A. (orig. ed.), § 27-119; Acts 1981, ch. 449, § 2.

Compiler's Notes. This section may be affected by T.R.A.P. 11.

Textbooks. Tennessee Jurisprudence, 2 Tenn. Juris., Appeal and Error, §§ 122, 238-259; 9 Tenn. Juris., Damages, § 28.

Law Reviews.

Civil Procedure — Appellate Review of Trial Judge's Approval of Jury — Awarded Damages, 11 Mem. St. U.L. Rev. 94.

Paine on Procedure: Remittitur and Additur (Donald F. Paine), 42 Tenn B.J. 25 (2006).

Cited: Loftis v. Finch, 491 S.W.2d 370, 1972 Tenn. App. LEXIS 279 (Tenn. Ct. App. 1972); GRW Enterprises, Inc. v. Davis, 797 S.W.2d 606, 1990 Tenn. App. LEXIS 304 (Tenn. Ct. App. 1990); Riley v. Orr, — S.W.3d —, 2010 Tenn. App. LEXIS 386 (Tenn. Ct. App. June 11, 2010); Oglesby v. Riggins, — S.W.3d —, 2011 Tenn. App. LEXIS 131 (Tenn. Ct. App. Mar. 17, 2011); Meals v. Ford Motor Co., — S.W.3d —, 2012 Tenn. App. LEXIS 234 (Tenn. Ct. App. Apr. 13, 2012).

NOTES TO DECISIONS

1. Successive Appeals Allowed.

When the trial judge suggests a remittitur upon the ground therein stated, the plaintiff may accept the remittitur under protest, and appeal to the court of appeals, and may take the case from that court to the supreme court; but the latter court will not ordinarily interfere with the concurrent finding of the trial court and of the court of appeals, as to the amount of damages. Grant v. Louisville & N. R. Co., 129 Tenn. 398, 165 S.W. 963, 1913 Tenn. LEXIS 107 (1914); J.T. Rather & Co. v. Nashville, C. & St. L. Ry., 131 Tenn. 289, 174 S.W. 1113, 1914 Tenn. LEXIS 107 (1914); Elrod v. Franklin, 140 Tenn. 228, 204 S.W. 298, 1917 Tenn. LEXIS 144 (1918) (Cases decided before 1949 amendment).

2. Recovery Limited to Allegations.

Where as a result of automobile accident in which his wife was involved husband sued for damages to his automobile, loss of services of his wife and expenses in connection therewith and specifically alleged the amount of expenses incurred but did not sue for loss of consortium, the amount of the husband's recovery was limited to the amount of the expenses alleged and court of appeals ordered a remittitur of the amount of the judgment in excess of that amount. Spence v. Carne, 40 Tenn. App. 580, 292 S.W.2d 438, 1954 Tenn. App. LEXIS 170 (Tenn. Ct. App. 1954).

3. Punitive Damages.

In an action for seduction where an award of $5,000 compensatory damages was made to plaintiff and an additional $5,000 awarded for punitive damages, the court of appeals was authorized under this section to suggest a remittitur of $2,500 as to the award for punitive damages. Caccamisi v. Thurmond, 39 Tenn. App. 245, 282 S.W.2d 633, 1954 Tenn. App. LEXIS 165 (Tenn. Ct. App. 1954).

4. Interest on Judgment.

Where the original verdicts and judgments were reduced by plaintiffs' remittitur under protest in the trial court, and further reduced by plaintiffs' remittitur under protest in the appellate court, but the original judgment of the trial court remained in effect except to the extent waived or remitted by plaintiffs; having waived a part of the principal of their judgments, plaintiffs also waived interest on the waived part of the judgments, so that they were entitled to interest only upon the remaining, unwaived portion of their judgments. Plaintiffs were entitled to interest on their reduced judgments from the date of the jury verdict to the date of payment. Long v. Mattingly, 817 S.W.2d 325, 1991 Tenn. App. LEXIS 388 (Tenn. Ct. App. 1991).

5. Jurisdiction of Supreme Court.

By this section the supreme court is given jurisdiction to restore the verdict of the jury, if in its opinion, the trial judge and the court of appeals was in error in reducing it, but is without jurisdiction to reduce the verdict further than reduced by the trial judge or the court of appeals. Lambert Bros., Inc. v. Larkins, 200 Tenn. 674, 296 S.W.2d 353, 1956 Tenn. LEXIS 453 (1956), overruled, Smith v. Shelton, 569 S.W.2d 421, 1978 Tenn. LEXIS 619 (Tenn. 1978).

Where both the trial court and the court of appeals agreed that the verdict of the jury should have been reduced, the former in the amount of $12,500 while the latter held this to be excessive and suggested remitting $7,500 of this amount, the supreme court was bound by their respective opinions holding that the verdict should have been reduced. Murphy Truck Lines v. Brown, 203 Tenn. 414, 313 S.W.2d 440, 1958 Tenn. LEXIS 320 (1958).

The concurrent finding of a trial court and the court of appeals in approving the amount of a jury verdict will not be disturbed if supported by material evidence. Ellis v. White Freightliner Corp., 603 S.W.2d 125, 1980 Tenn. LEXIS 474 (Tenn. 1980).

6. Legislative Intent.

The clear legislative intent of § 20-10-102 and this section was to confer on the appellate courts full power and authority to revise and correct all errors consistent with recognized rules of appellate practice and procedure. Murphy Truck Lines v. Brown, 203 Tenn. 414, 313 S.W.2d 440, 1958 Tenn. LEXIS 320 (1958).

The clear legislative intent of § 20-10-102 and this section was to confer on appellate courts full power and authority to revise and correct all errors relating to remittiturs suggested or not suggested by the trial court consistent with recognized rules of appellate practice and procedure. Jones v. Cocke County, 61 Tenn. App. 555, 456 S.W.2d 665, 1970 Tenn. App. LEXIS 302 (Tenn. Ct. App. 1970).

7. Jurisdiction of Court of Appeals.

The court of appeals had the power to reinstate part of the original judgment where the trial court was in error in suggesting a remittitur which was excessive. Murphy Truck Lines v. Brown, 203 Tenn. 414, 313 S.W.2d 440, 1958 Tenn. LEXIS 320 (1958).

Court of appeals had authority to deduct $7,500 from remittitur of $12,500 suggested by trial court in $25,000 verdict and to affirm major part of original judgment in amount of $20,000 and was not required to reinstate original judgment in its entirety. Murphy Truck Lines v. Brown, 203 Tenn. 414, 313 S.W.2d 440, 1958 Tenn. LEXIS 320 (1958).

Court of appeals has the prerogative and duty to suggest remittitur if it deems the verdict excessive even though the trial court may have approved the verdict as rendered by the jury and expressly refused a remittitur. Methodist Hospital v. Ball, 50 Tenn. App. 460, 362 S.W.2d 475, 1961 Tenn. App. LEXIS 146 (Tenn. Ct. App. 1961).

If it is determined on appeal that the jury's verdict is within the range of reasonableness or that both the jury's and the trial judge's awards are within that range, the appellate court must restore the jury verdict; if only the trial judge's award is within the range, it must be affirmed; if neither are within the range of reasonableness, the court of appeals should make appropriate use of remittitur or additur and render judgment within the range of reasonableness based upon the credible proof of damages. Smith v. Shelton, 569 S.W.2d 421, 1978 Tenn. LEXIS 619 (Tenn. 1978), overruled in part, Foster v. Amcon International, Inc., 621 S.W.2d 142, 1981 Tenn. LEXIS 477 (Tenn. 1981), superseded by statute as stated in, Palanki v. Vanderbilt Univ., 215 S.W.3d 380, 2006 Tenn. App. LEXIS 731 (Tenn. Ct. App. 2006).

When the question of remittitur is raised, the court of appeals has the duty to review the proof of damages and the authority to reduce an excessive award. But when the trial judge has approved the verdict, the review in the court of appeals is subject to the rule that if there is any material evidence to support the award, it should not be disturbed. Ellis v. White Freightliner Corp., 603 S.W.2d 125, 1980 Tenn. LEXIS 474 (Tenn. 1980); Coyle v. Prieto, 822 S.W.2d 596, 1991 Tenn. App. LEXIS 225 (Tenn. Ct. App. 1991), rehearing denied, — S.W.2d —, 1991 Tenn. App. LEXIS 518 (Tenn. Ct. App. July 2, 1991).

If the issue is remittitur, Smith v. Shelton, 569 S.W.2d 421, 1978 Tenn. LEXIS 619 (Tenn. 1978), requires a determination of the upper limit of reasonable verdicts only. If the issue is additur Shelton requires a determination of the lower limit only. Ellis v. White Freightliner Corp., 603 S.W.2d 125, 1980 Tenn. LEXIS 474 (Tenn. 1980).

If the analysis of the credible proof of damages results in the conclusion that the award is not excessive, there is no requirement that a figure be named beyond which the verdict would be considered excessive, but a determination has been made that the award is within the range of reasonableness. Ellis v. White Freightliner Corp., 603 S.W.2d 125, 1980 Tenn. LEXIS 474 (Tenn. 1980).

If, after reviewing the record when the question of remittitur is raised, the court determines that the adjusted damage award is still excessive, it has the prerogative to reduce the damages further. Long v. Mattingly, 797 S.W.2d 889, 1990 Tenn. App. LEXIS 450 (Tenn. Ct. App. 1990).

8. Purpose of Act.

The purpose of the revisory authority granted the appellate courts by § 20-10-102 and this section is to avoid repeated trials of factual issues and at the same time to do equal justice to the parties. Murphy Truck Lines v. Brown, 203 Tenn. 414, 313 S.W.2d 440, 1958 Tenn. LEXIS 320 (1958).

9. Weight of Trial Court's Action.

Although the court of appeals has the right to order remittiturs, adjust remittiturs, or accept the verdict of the jury or of the remittitur made by the trial court, it is proper for the court of appeals in most cases to approve either the verdict of the jury or the remittitur ordered by the trial court unless thoroughly satisfied that both are wrong. Stark v. Yost, 47 Tenn. App. 28, 334 S.W.2d 954, 1959 Tenn. App. LEXIS 126 (Tenn. Ct. App. 1959).

The appellate courts must have great respect for the evaluation of damages fixed by the trial judge or approved by him as relates to the verdict. Stark v. Yost, 47 Tenn. App. 28, 334 S.W.2d 954, 1959 Tenn. App. LEXIS 126 (Tenn. Ct. App. 1959).

Appellate review of a trial judge's actions in making use of remittitur or additur resolves into a determination of whether or not the jury verdict is within the range of reasonableness established by the credible proof and throughout the review, the jury's determinations should be given primary weight and the trial judge's secondary weight. Smith v. Shelton, 569 S.W.2d 421, 1978 Tenn. LEXIS 619 (Tenn. 1978), overruled in part, Foster v. Amcon International, Inc., 621 S.W.2d 142, 1981 Tenn. LEXIS 477 (Tenn. 1981), superseded by statute as stated in, Palanki v. Vanderbilt Univ., 215 S.W.3d 380, 2006 Tenn. App. LEXIS 731 (Tenn. Ct. App. 2006).

Although not specifically statutorily authorized, T.C.A. § 20-10-103 implicitly recognizes the authority of an appellate court to grant a further remittitur when the award, even as remitted by the trial court, is deemed excessive. Holt v. Compton Sales Co., 900 S.W.2d 291, 1995 Tenn. App. LEXIS 30 (Tenn. Ct. App. 1995), appeal denied, — S.W.2d —, 1995 Tenn. LEXIS 215 (Tenn. May 1, 1995).

The standard of review for the trial court's action in granting a remittitur is appropriate for use by an appellate court in determining whether the evidence preponderates against the determination of the trial court as to amount of remittitur. Holt v. Compton Sales Co., 900 S.W.2d 291, 1995 Tenn. App. LEXIS 30 (Tenn. Ct. App. 1995), appeal denied, — S.W.2d —, 1995 Tenn. LEXIS 215 (Tenn. May 1, 1995).

10. Remittitur Not Required.

Where plaintiff sustained a severe scalp wound, fractures of the fifth, sixth, and seventh thoracic vertebrae and a mild concussion of the brain, spent 45 days in the hospital and still felt considerable pain after a hard day's work because of back injuries and special damages of over $3,000 were proven a verdict of $11,000 was not so excessive as to require a remittitur under the section. Vancleave v. Napier, 55 Tenn. App. 313, 399 S.W.2d 784, 1964 Tenn. App. LEXIS 169 (Tenn. Ct. App. 1964).

In an action stemming from an automobile accident, the appellate court determined that the trial court suggested remittitur was proper and that the record contained material evidence to support the amount of the non-economic damages awarded in the judgment; accordingly, there was no basis under T.C.A. § 20-10-103(a) to suggest a further remittitur of economic damages in the case. Duran v. Hyundai Motor Am., Inc., 271 S.W.3d 178, 2008 Tenn. App. LEXIS 79 (Tenn. Ct. App. Feb. 13, 2008), rehearing denied, 271 S.W.3d 178, 2008 Tenn. App. LEXIS 127 (Tenn. Ct. App. Feb. 27, 2008), appeal denied, — S.W.3d —, 2008 Tenn. LEXIS 632 (Tenn. Aug. 25, 2008).

Appellate court had the authority under this section to suggest a remittitur even though defendant did not request a remittitur, but the appellate court erred in remitting the jury's verdict from $43.8 million to $12.9 million. Although the amount of the verdict rested at the high end of the range of reasonableness, it was not excessive. Meals ex rel. Meals v. Ford Motor Co., 417 S.W.3d 414, 2013 Tenn. LEXIS 702 (Tenn. Aug. 30, 2013).

11. Remittitur Required.

In malicious prosecution case, where special damages shown consisted of cost of bail bonds, attorneys' fees and lost time from work amounting to approximately $250, and other injuries consisted of inconvenience and embarrassment incident to arrest, temporary detention for booking and bail, and approximately five hours in “drunk tank,” and no specific injury or loss was shown because of injury to reputation, $5,000 compensatory damages was regarded as excessive by court of appeals and was reduced to $2,500. Cohen v. Cook, 62 Tenn. App. 292, 462 S.W.2d 502, 1969 Tenn. App. LEXIS 278 (Tenn. Ct. App. 1969), aff'd, 224 Tenn. 729, 462 S.W.2d 499, 1970 Tenn. LEXIS 374 (1970).

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).

Trial court's suggested remittitur of loss of enjoyment of life damages award to a thirty-year-old injured truck driver from $ 750,000 to $ 400,000 was against the preponderance of the evidence because the truck driver was able to partake in some activities; the appellate court exercised its statutory authority and reduced the award to $ 50,000. Borne v. Celadon Trucking Servs., — S.W.3d —, 2014 Tenn. App. LEXIS 455 (Tenn. Ct. App. July 31, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 1089 (Tenn. Dec. 18, 2014), modified, 532 S.W.3d 274, 2017 Tenn. LEXIS 702 (Tenn. Oct. 20, 2017).

In this age discrimination case, with respect to the calculation of base pay, there was no reversible error, as the figure awarded represented plaintiff's annual earnings during his final year with defendant, multiplied by 2.15 to cover the approximately two-year period from his termination through trial, but the trial court erred in declining defendant's request for remittitur; the jury failed to credit defendant for the income plaintiff earned from his nut roasting business following his termination. Martin v. Perma-Chink Sys., — S.W.3d —, 2016 Tenn. App. LEXIS 432 (Tenn. Ct. App. June 27, 2016).

12. Authority of Trial Judge.

It is the exclusive province of the jury to assess damages within the range of reasonableness established by the credible proof; and trial judges are without authority to reduce or increase jury verdicts that are between the upper and lower limits of that range, but if a trial judge sitting as thirteenth juror cannot approve a jury verdict that is within the range of reasonableness established by the credible proof, he has the authority to order a new trial, but not to increase or reduce the verdict. Smith v. Shelton, 569 S.W.2d 421, 1978 Tenn. LEXIS 619 (Tenn. 1978), overruled in part, Foster v. Amcon International, Inc., 621 S.W.2d 142, 1981 Tenn. LEXIS 477 (Tenn. 1981), superseded by statute as stated in, Palanki v. Vanderbilt Univ., 215 S.W.3d 380, 2006 Tenn. App. LEXIS 731 (Tenn. Ct. App. 2006).

13. Guidelines.

A trial judge, in suggesting remittitur, must set a reasonable time in which the party in whose favor the verdict was rendered may accept the suggestion, to be determined at the discretion of the trial judge but not to exceed 30 days. The 30-day limit does not preclude the trial court from enlarging the time under Tenn. R. Civ. P. 6.02. Evans v. Wilson, 776 S.W.2d 939, 1989 Tenn. LEXIS 394 (Tenn. 1989), rehearing denied, — S.W.2d —, 1989 Tenn. LEXIS 468 (Tenn. 1989).

Remand was necessary as to whether the father, son, and mother would accept the remittitur for the award of future medical expenses or have a new trial. An award of future medical expenses in the amount of $ 8,000 had been made to the father after he was shot by a hunter; however, the only material evidence in the record on the issue of future medical expense was the general surgeon's estimate, which the appellate court determined supported an award of not more than $ 2,250 for future medical expenses. Riley v. Orr, — S.W.3d —, 2010 Tenn. App. LEXIS 279 (Tenn. Ct. App. Apr. 19, 2010).

14. Appeal in Nature of Writ of Error.

Where a case is tried with the intervention of a jury, the appeal is expressly governed by § 27-3-108 (repealed), being in the nature of a writ of error, and neither the trial judge's disagreement with the amount of the jury verdict, nor acceptance of a remittitur or additur rather than a new trial, provides a basis for the application of § 27-3-103 (repealed). Smith v. Shelton, 569 S.W.2d 421, 1978 Tenn. LEXIS 619 (Tenn. 1978), overruled in part, Foster v. Amcon International, Inc., 621 S.W.2d 142, 1981 Tenn. LEXIS 477 (Tenn. 1981), superseded by statute as stated in, Palanki v. Vanderbilt Univ., 215 S.W.3d 380, 2006 Tenn. App. LEXIS 731 (Tenn. Ct. App. 2006).

Collateral References.

Appellate Court's power to order remittitur of portion of actual damages awarded at trial while sustaining trial award of punitive damages. 97 A.L.R.2d 1145.

Chapter 11
Formal Defects in Proceedings

20-11-101. [Repealed.]

Compiler's Notes. Former § 20-11-101 (Code 1858; § 2863 (deriv. Acts 1809 (Sept.), ch. 49, § 21); Shan., § 4583; Code 1932, § 8707; T.C.A. (orig. ed.), § 20-1501), concerning defects not ground for abatement, was repealed by Acts 1991, ch. 273, § 5.

20-11-102. [Repealed.]

Compiler's Notes. Former § 20-11-102 (Code 1858, § 2864 (deriv. Acts 1811, ch. 72, § 14); Shan., § 4584; mod. Code 1932, § 8708; T.C.A. (orig. ed.), § 20-1502), concerning defects in appeals was repealed by Acts 1981, ch. 449, § 1(4). For present provisions, see T.R.A.P. 2, 3.

20-11-103. Defective verdict.

Any defect in entering a verdict where there are different issues, or the verdict is not responsive to the issues, shall be objected to before judgment is entered, or the objection will be considered waived.

Code 1858, § 2873 (deriv. Acts 1851-1852, ch. 152, § 7); Shan., § 4593; Code 1932, § 8717; T.C.A. (orig. ed.), § 20-1509.

Textbooks. Tennessee Jurisprudence, 2 Tenn. Juris., Appeal and Error, § 116; 24 Tenn. Juris., Verdict, § 7.

Law Reviews.

Waiting for the Jury (George W. Jenkins III), 20 No. 4 Tenn. B.J. 31 (1984).

NOTES TO DECISIONS

1. Court Amending Verdict.

The court has no power to amend a verdict after the jury has been discharged, except by adding a word or words so as to make the entry correspond with the court's clear impression of the finding. Berry v. Wallin, 1 Tenn. 240 (1807); Barnard v. Young, 24 Tenn. 100, 1844 Tenn. LEXIS 29 (1844).

2. General Verdict — Jury Right.

The privilege of the jury to decline finding any other than a general verdict is not restrained by statute, but on the contrary, the statutes seem to impliedly recognize this privilege of the jury. Louisville & N. R. Co. v. Frakes, 11 Tenn. App. 593, — S.W.2d —, 1928 Tenn. App. LEXIS 14 (Tenn. Ct. App. 1928).

3. —Finding on Each Count Separately — Waiver.

Right to demand finding of jury on each count separately may be waived by failure to object to the form of the verdict after it is rendered by the jury and before judgment is entered. Louisville & N. R. Co. v. Frakes, 11 Tenn. App. 593, — S.W.2d —, 1928 Tenn. App. LEXIS 14 (Tenn. Ct. App. 1928).

Where mother sued for both her own damages and the damages of minor son as the result of injuries to minor she could not object because jury returned a verdict of one amount covering the damages to both where by questions asked by the jury before returning a verdict it was indicated that they would return only one sum as damages and no objection was made before judgment was entered. State ex rel. Coffelt v. Hartford Acci. & Indem. Co., 44 Tenn. App. 405, 314 S.W.2d 161, 1958 Tenn. App. LEXIS 140 (Tenn. Ct. App. 1958).

4. Matter of Form Cured by Verdict.

If one sues on note as bearer, where the note is not payable to bearer and is not assigned, the want of proper payee as nominal plaintiff, being a matter of form, is cured by the verdict. Wolfe v. Tyler, 48 Tenn. 313, 1870 Tenn. LEXIS 55 (1870).

5. Inconsistent Verdicts.

The objection was not waived where there were inconsistent verdicts. Helm v. Wells, 488 S.W.2d 733, 1972 Tenn. App. LEXIS 327 (Tenn. Ct. App. 1972).

6. “Defective Verdict” Defined.

Where jury returned an improper verdict pursuant to erroneous instructions given by judge, the verdict is not “defective” or inconsistent with instructions and hence section does not apply. Henry County Board of Education v. Burton, 538 S.W.2d 394, 1976 Tenn. LEXIS 490 (Tenn. 1976).

Collateral References. 76 Am. Jur. 2d Trial §§ 1143—1153, 1156.

49 C.J.S. Judgments §§ 95, 452.

Trial 399.

20-11-104. [Repealed.]

Compiler's Notes. Former § 20-11-104 (Code 1858, § 2874 (deriv. Acts 1851-1852, ch. 152, § 7); Shan., § 4594; mod. Code 1932, § 8718; T.C.A. (orig. ed.), § 20-1510), concerning jurisdictional defects on appeal was repealed by Acts 1981, ch. 449, § 1(4). For present provisions, see T.R.A.P. 2, 3, 13.

20-11-105. Penal and qui tam actions.

This chapter shall apply to penal and qui tam as well as civil actions.

Code 1858, § 2871 (deriv. Acts 1851-1852, ch. 152, § 6); Shan., § 4591; mod. Code 1932, § 8715; T.C.A. (orig. ed.), § 20-1511.

Textbooks. Tennessee Jurisprudence, 1 Tenn. Juris., Amendments, § 2.

Law Reviews.

Judgments and Appeal, 4 Mem. St. U.L. Rev. 373.

NOTES TO DECISIONS

1. Warrant in Action for Penalty — Amendment.

A warrant, in an action for a penalty prescribed by a city ordinance, may be amended by inserting the words “a penalty of from ten to fifty dollars.” Childress v. Nashville, 35 Tenn. 347, 1855 Tenn. LEXIS 70 (1855).

2. Qui Tam Actions Covered.

Qui tam actions are included in the provision of this section, because they are actions for penalties given by statute, generally in part, but sometimes wholly, to any one that will sue for the same. McCreary v. First Nat'l Bank, 109 Tenn. 128, 70 S.W. 821, 1902 Tenn. LEXIS 63 (1902).

20-11-106, 20-11-107 [Repealed.]

Compiler's Notes. Former §§ 20-11-106 and 20-11-107 (Acts 1978, ch. 813, § 1; 1978, ch. 856, § 1; 1979, ch. 399, §§ 3, 4; T.C.A., §§ 20-1512, 20-1513), concerning the correction of a judgment or decree and the correction of a mistake apparent in a record, were repealed by Acts 1989, ch. 106, § 1.

Tenn. R. Civ. P. 60.01 was intended to supersede §§ 20-11-106 and 20-11-107. See the Advisory Commission Comments to that rule.

20-11-108. General sessions court proceedings on appeal.

In appeals from courts of general sessions, the circuit court shall supply any defect in the proceedings of the inferior jurisdiction, as though the suit had been commenced in the circuit court.

Code 1858, § 2875 (deriv. Acts 1821, ch. 21; 1837-1838, ch. 130, § 1); Shan., § 4595; Code 1932, § 8719; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 20-1514.

Textbooks. Tennessee Jurisprudence, 1 Tenn. Juris., Amendments, §§ 2, 7, 10, 17; 2 Tenn. Juris., Appeal and Error, §§ 50, 51, 67; 17 Tenn. Juris., Justices of Peace and General Sessions Courts, § 41.

Law Reviews.

The Pauper's Oath in Appeals From General Sessions Court (Robert A. Lanier), 19 No. 2 Tenn. B.J. 17 (1983).

Cited: Spencer v. Dixie Finance Co., 205 Tenn. 485, 327 S.W.2d 301, 1959 Tenn. LEXIS 387 (1959).

NOTES TO DECISIONS

1. In General.

A provision for de novo trial in the circuit court must be taken to mean a de novo trial as to the parties before that court by appeal. Braverman v. Roberts Constr. Co., 748 S.W.2d 433, 1987 Tenn. App. LEXIS 3114 (Tenn. Ct. App. 1987).

2. Construction with Other Acts.

This section and §§ 19-1-118 (now § 16-15-729), 20-11-101 (repealed) evince a clear intention on the part of the legislature to allow such amendments in the circuit court as will permit the appellant to have his case heard and determined in that court on its merits. Walker v. Aetna Casualty & Surety Co., 175 Tenn. 118, 132 S.W.2d 219, 1939 Tenn. LEXIS 19 (1939).

3. Correction of Proceedings.

4. —Grant of Appeal.

The record could be amended so as to make it appear that an appeal had been prayed and granted, by supplying omission of entry of appeal from justice's (now general sessions judge's) judgment, by means of recitals in the appeal bond. Cooley v. Julin, 13 Tenn. 438, 13 Tenn. 439, 1830 Tenn. LEXIS 49 (1830); Rogers v. Cochran, 11 Tenn. 310, 11 Tenn. 311, 1832 Tenn. LEXIS 49 (1832); Lawler v. Howard, 19 Tenn. 15, 1838 Tenn. LEXIS 4 (1838); Glass v. Stovall, 29 Tenn. 453, 1850 Tenn. LEXIS 12 (1850).

Where the appeal was made to the circuit court, there had to appear in the proceedings something showing that an appeal was prayed and granted from a justice's (now general sessions judge's) judgment. Hall v. Bewley, 30 Tenn. 106, 1850 Tenn. LEXIS 68 (1849); Teasdale v. Manchester Produce Co., 104 Tenn. 267, 56 S.W. 853, 1899 Tenn. LEXIS 34 (1900).

The circuit judge should allow the justice (now general sessions judge) to amend his judgment, so as to show that the appeal had been prayed for and granted, within the proper time. King v. Booker, 48 Tenn. 11, 1870 Tenn. LEXIS 4 (1870).

Where there was no recital that an appeal was prayed and granted from the judgment of a justice of the peace (now general sessions judge), he was allowed to amend so as to show that the appeal was prayed and granted within the proper time; and the refusal of the circuit court to allow such amendment was error. McCarver v. Jenkins, 49 Tenn. 629, 1871 Tenn. LEXIS 55 (1871); Campbell v. Illinois Cent. R.R., 84 Tenn. 270, 1886 Tenn. LEXIS 95 (1886).

5. —Parties.

Amendment by inserting given names of the plaintiffs in a justice's (now general sessions judge's) warrant after appeal to the circuit court, and even after trial and verdict, and after new trial granted. Irwin v. Sanders, 13 Tenn. 286, 13 Tenn. 287, 1833 Tenn. LEXIS 165 (1833); Phillips v. Wells, 34 Tenn. 154, 1854 Tenn. LEXIS 24 (1854).

Where a suit is commenced by a justice's (now general session judge's) warrant, and brought into the circuit court, the plaintiff may amend his warrant, by striking out his own name and inserting the name of a third person, but prosecution sureties are thereby released. Phillips v. Wells, 34 Tenn. 154, 1854 Tenn. LEXIS 24 (1854); Smith v. Roby, 53 Tenn. 546, 1871 Tenn. LEXIS 393 (1871); Thomas v. Cole, 57 Tenn. 411, 1873 Tenn. LEXIS 224 (1873).

In a suit by the assignee of a note, brought into the circuit court by appeal from the judgment of a justice of the peace (now general sessions judge), the circuit judge may allow an amendment of the warrant, on motion of the plaintiff, the assignee of the note, so as to make the payee a nominal plaintiff for the use of the assignee, and to strike out the assignment on the note. Cannon v. Mathis, 57 Tenn. 575, 1873 Tenn. LEXIS 266 (1873).

In an action on an official bond the suit ought to have been brought in the name of the state for the use of the plaintiff, and the court should have permitted an amendment to that effect. Smith v. Thomas, 1 Shannon 655 (1876).

6. —Defective Appeal Bond.

Where appeal from justice's (now general sessions judge's) court to circuit court was defective only for want of sureties on the appeal bond, the appellants were entitled to make correction by amendment by way of new bond in circuit court, even after the appellee had taken further appeal to court of appeals. Frazier v. Biddle Auto Co., 6 Tenn. Civ. App. (6 Higgins) 489 (1916).

It was proper for the circuit judge to permit a defendant who had appealed from the judgment of a justice of the peace (now general sessions judge) to the circuit court to amend his appeal bond by adding a sufficient surety. Walker v. Aetna Casualty & Surety Co., 175 Tenn. 118, 132 S.W.2d 219, 1939 Tenn. LEXIS 19 (1939).

7. —Scire Facias.

Justice's (now general sessions judge's) scire facias to revive a judgment could be amended in the circuit court, so as to conform to the record, and to obviate the variance between the evidence and the scire facias. Whitworth v. Thompson, 76 Tenn. 480, 1881 Tenn. LEXIS 36 (1881).

8. Appeal — Presumptions.

Where the record shows amendment in circuit court, without showing by whom made, the appellate court will presume that it was made by the justice (now general sessions judge). Hall v. Bewley, 30 Tenn. 106, 1850 Tenn. LEXIS 68 (1849).

Collateral References. 51 C.J.S. Justices of the Peace § 215.

Justices of the peace 160(6).

20-11-109. Copy of lost paper.

If an original process, pleading or paper in a cause is lost or withheld by any person, the court may, at any stage of the suit, authorize its place to be supplied by a copy to be used instead of the original.

Code 1858, § 2876; Shan., § 4596; mod. Code 1932, § 8720; T.C.A. (orig. ed.), § 20-1515.

Textbooks. Tennessee Jurisprudence, 18 Tenn. Juris., Lost Instruments and Records, § 12.

The General Sessions Court (Hall), § 178.

Cited: Pennington v. General Motors Corp., 49 Tenn. App. 240, 354 S.W.2d 479, 1961 Tenn. App. LEXIS 108 (Tenn. Ct. App. 1961).

NOTES TO DECISIONS

1. Note Lost after Suit.

Where a note was lost after suit had been brought upon it before a justice of the peace (now general sessions judge), it may be supplied by a copy in the circuit court, like any other lost paper. Travis v. Laurace, 2 Shan. 109 (1876).

Collateral References. Lost Instruments 7, 22.

Chapter 12
Costs

20-12-101. Recovery by successful party.

The successful party in all civil actions is entitled to full costs, unless otherwise directed by law or by a court of record, for which judgment shall be rendered.

Code 1858, § 3197 (deriv. Acts 1794, ch. 1, § 74); Shan., § 4938; mod. Code 1932, § 9091; T.C.A. (orig. ed.), § 20-1601.

Cross-References. Change of venue, costs, §§ 20-4-210, 20-4-211.

Clerk's fees, § 8-21-401.

Compensation of court reporter, § 20-9-103.

Continuance, costs, §§ 20-7-103, 20-7-104.

Costs, Tenn. R. Civ. P. 54; T.R.A.P. 6, 18, 40; Tenn. R. Sup. Ct. 7.

Divorce cases, costs, § 36-4-122.

Duties of sheriff, § 8-8-201.

Fees due public officers, § 8-21-104.

Hearings in tobacco tax matters, costs, § 67-4-1018.

Reciprocal enforcement of support, § 36-5-214.

Setoff, costs, § 20-6-402.

Sheriff's fees for collection of costs, § 8-21-902.

Surveyor's fees, § 8-12-109.

Testimony taken by deposition, § 24-9-101.

Witness fees paid by successful party, § 24-4-107.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), §§ 242, 244.

Tennessee Forms (Robinson, Ramsey and Harwell), No. 1-54.04-1.

Law Reviews.

Constitutionality of the Fee System of Justices of the Peace (Hugh C. Simpson), 14 Tenn. L. Rev. 565.

Judgments and Appeal, 4 Mem. St. U.L. Rev. 373.

Comparative Legislation. Costs:

Ala.  Code § 12-19-20 et seq.

Ark.  Code § 16-68-301 et seq.

Ga. O.C.G.A. § 15-10-80 et seq.

Ky. Rev. Stat. Ann. § 453.010 et seq.

Miss.  Code Ann. § R.C.P. 54.

Mo. R.C.P. R. 77.01.

N.C. Gen. Stat. § 6-1 et seq.

Va.  Code § 14.1-177 et seq.

Cited: Bridges v. Agee, 167 Tenn. 324, 69 S.W.2d 891, 1933 Tenn. LEXIS 43 (1934); Marshall v. Sevier County, 639 S.W.2d 440, 1982 Tenn. App. LEXIS 396 (Tenn. Ct. App. 1982); Barrett v. Town of Nolensville, — S.W.3d —, 2011 Tenn. App. LEXIS 119 (Tenn. Ct. App. Mar. 10, 2011); Bernatsky v. Designer Baths & Kitchens, LLC, — S.W.3d —, 2013 Tenn. App. LEXIS 106 (Tenn. Ct. App. Feb. 15, 2013).

NOTES TO DECISIONS

1. Legislature's Power as to Costs.

Costs are essentially statutory; and there is no constitutional restriction on the power of the legislature, and that body may provide for the taxation of costs of litigation in such manner as it may deem proper. Mooneys v. State, 10 Tenn. 578, 1831 Tenn. LEXIS 19 (1831); Wilson v. Wilson, 134 Tenn. 697, 185 S.W. 718, 1916 Tenn. LEXIS 2 (1916).

2. Particular Actions Recoverable.

3. —Judgment on Judgment.

In a suit on a judgment of another state, the plaintiff is entitled to recover, for the benefit of the parties entitled thereto, the costs adjudged and taxed in the suit on the original judgment if properly evidenced; and the plaintiff is entitled to recover the costs of the suit in which a new judgment is recovered. Hunt v. Lyle, 14 Tenn. 412, 1834 Tenn. LEXIS 102 (1834); Gatewood v. Palmer, 29 Tenn. 466, 1850 Tenn. LEXIS 16 (1850); Green-Rea Co. v. Holman, 107 Tenn. 544, 64 S.W. 889, 1901 Tenn. LEXIS 105 (1901).

In an action upon a judgment, the plaintiff recovering thereon is entitled to recover the costs taxed upon the original judgment, if unpaid, without interest, as costs bear no interest, and such costs of the original judgment should be taxed as costs in the second judgment; and he is also entitled to recover the costs in the second judgment to be taxed to the losing defendant. Green-Rea Co. v. Holman, 107 Tenn. 544, 64 S.W. 889, 1901 Tenn. LEXIS 105 (1901).

4. —Mandamus Suit Against Judge.

Where a judge improperly excluded an attorney from practicing, and refused to put the order on record, or to allow him to appeal, he is a proper party defendant to a petition for a mandamus, and is liable for costs. Ingersoll v. Howard, 48 Tenn. 247, 1870 Tenn. LEXIS 45 (1870).

5. —Mortgage Securing Usurious Note.

There is error in not applying the statutory provision as to full costs against a complainant in a suit to foreclose a mortgage executed to secure a usurious note. Kelton v. Brown, 39 S.W. 541, 1897 Tenn. Ch. App. LEXIS 3 (1897).

6. —Will Contest.

Under facts recited, it is proper exercise of discretion of lower court to tax all costs of any will contest to executor individually. Bridges v. Agee, 167 Tenn. 324, 69 S.W.2d 891, 1933 Tenn. LEXIS 43 (1934).

In action to contest will in which validity of will was upheld costs were taxed against estate where testator had committed suicide two months after will was executed and contest action may result in some advantage to estate. Curry v. Bridges, 45 Tenn. App. 395, 325 S.W.2d 87, 1959 Tenn. App. LEXIS 77 (Tenn. Ct. App. 1959).

Costs of will contest could be assessed against estate even though contest failed where testator had committed suicide within two months after execution of will and where contest could conceivably result in some advantage to executors and trustees particularly in administration of trust which would not terminate for 15 years. Curry v. Bridges, 45 Tenn. App. 395, 325 S.W.2d 87, 1959 Tenn. App. LEXIS 77 (Tenn. Ct. App. 1959).

7. Separate Causes.

8. —Consolidated Cases.

Costs in consolidated cases may be left to abide the result of the suits, without requiring the plaintiff to pay the costs which had accrued previous to the consolidation. Dews v. Eastham, 13 Tenn. 296, 13 Tenn. 297, 1833 Tenn. LEXIS 171 (1833).

9. —Severance of Defendants — Effect.

Where the defendants sever in a libel or ejectment suit for the reason that different questions are involved between them and the plaintiff, upon the different titles arising in the suit, this has the effect of making several causes, and a separate taxation of costs in each case is proper. Den v. Huff, 1 Shan. 8 (1847); Sloan v. Parks, 32 Tenn. 62, 1852 Tenn. LEXIS 13 (1852).

10. Separate Defendants — Apportionment.

Where there are several joint defendants, one of whom succeeds in his defense, and the others do not, the defendant who succeeds may recover of the plaintiff such costs only as accrued separately and properly on account of his being a defendant in the suit; and the plaintiff is entitled to recover of the other defendants the costs of the suit incurred in the joint defense, or otherwise, except such as may be separated therefrom, as having exclusive reference to the defendant who succeeds. Sloan v. Parks, 32 Tenn. 62, 1852 Tenn. LEXIS 13 (1852).

11. Amount of Judgment.

12. —Amount Generally.

Under our practice, a judgment for costs generally is a judgment for the amount of all accrued costs, when legally taxed by the clerk. Gillet & Franklin v. Roadman, 24 Tenn. 44, 1844 Tenn. LEXIS 10 (1844); State ex rel. Hurt v. Alexander, 115 Tenn. 156, 90 S.W. 20, 1905 Tenn. LEXIS 52 (1905).

13. —Recovery on Part of Counts on Distinct Causes.

Where a plaintiff joins several separate and distinct causes of action, by means of several counts in his declaration (not several counts containing the same cause of action, only varying in the statement so as to avoid a variance in the proof and the like) and recovers as to some of the counts, but fails as to others, he can recover only such costs as are incident to that count of the declaration upon which he succeeds; while the defendant is entitled to recover such costs as have accrued in consequence of the counts upon which the plaintiff has failed. In such case, the proper practice is to render judgment, and award execution in behalf of the defendant, for such costs as he may be thus entitled to recover. Allison v. Thompson, 32 Tenn. 202, 1852 Tenn. LEXIS 50 (1852); Boothe v. Cowan, 37 Tenn. 354, 1858 Tenn. LEXIS 14 (1858); Lewis v. Watkins, 71 Tenn. 174, 1879 Tenn. LEXIS 54 (1879). See Gist v. Webb, 41 Tenn. 518, 1860 Tenn. LEXIS 98 (1860).

Where the contestant in a contested election case bases his contest on two grounds, namely, (1) his own election and (2) the disqualification or ineligibility of the defendant, and is unsuccessful on the first ground, but is successful on the second ground, the contestant will be adjudged to pay the costs of the lower court, arising under the first count or ground of contest, and the defendant will be adjudged to pay the residue of the costs below, and the costs of the supreme court, though the court below had refused to tax the costs in accordance with the final judgment of the supreme court, and to that extent was reversed. Lewis v. Watkins, 71 Tenn. 174, 1879 Tenn. LEXIS 54 (1879).

14. —Tender — Effect as to Costs.

Tender of the amount due the plaintiff must be made by the defendant to prevent costs. Gist v. Webb, 41 Tenn. 518, 1860 Tenn. LEXIS 98 (1860).

15. —Nominal Damages Recovered.

Where the plaintiff recovers only nominal damages for the violation of a contract, he is entitled to a judgment for costs. Seat & Robinson v. Moreland, 26 Tenn. 575, 1847 Tenn. LEXIS 24 (1847); Wadsworth v. Western Union Tel. Co., 86 Tenn. 695, 8 S.W. 574, 6 Am. St. Rep. 864, 1888 Tenn. LEXIS 24 (1888). See Gist v. Webb, 41 Tenn. 518, 1860 Tenn. LEXIS 98 (1860).

16. —Supersedeas Proceedings.

Where, in a certiorari and supersedeas proceeding, the petitioner improperly superseded the whole execution, upon the alleged ground that the whole judgment had been paid and satisfied in full, or nearly so, whereas, only a part of the judgment had been paid, the petitioner is liable for the costs; but if he had superseded only so much of the execution as had been paid, pointing out truly the amount actually paid, he would have been the successful party, and entitled to recover costs. Littleton v. Yost, 71 Tenn. 267, 1879 Tenn. LEXIS 73 (1879).

17. Justice of Peace.

18. —Smaller Judgment in Circuit Court.

A plaintiff, upon the defendant's appeal, recovering a judgment in the circuit court for a smaller sum than he recovered before the justice (now general sessions judge), was the successful party and as such was entitled to full costs, especially where the defendant nowhere conceded his liability to the plaintiff, but defended against his liability, and resisted plaintiff's recovery in both courts. Section 20-12-118 providing that, in cases not embraced within the express provisions of the law, the court may make such disposition of the costs as, in its sound discretion, may seem right, was inapplicable. Gist v. Webb, 41 Tenn. 518, 1860 Tenn. LEXIS 98 (1860); Cincinnati, N. O. & T. P. R. Co. v. Shelton, 123 Tenn. 513, 130 S.W. 843, 1910 Tenn. LEXIS 22 (1910). See § 20-12-119.

Plaintiff suing out a certiorari from the judgment of a justice of the peace (now general sessions judge), and failing to increase his judgment in the circuit court, was the unsuccessful party, and was taxed with the costs of the certiorari proceeding. Williams v. Cosby, 49 Tenn. 644, 1871 Tenn. LEXIS 57 (1871); Parham v. Gibbs, 84 Tenn. 296, 1886 Tenn. LEXIS 100 (1886); Garrison v. Trotter, 114 Tenn. 526, 86 S.W. 1078, 1904 Tenn. LEXIS 106 (1904).

19. —Void Certiorari from Justice's Void Judgment.

Where a justice's (now general sessions judge's) judgment, void for want of jurisdiction, was taken to the circuit court by a writ of certiorari, void because granted after the time limited by statute, and the case was there tried, after the refusal of the trial judge to dismiss the certiorari, on motion, and that court rendered judgment, the supreme court, on appeal, reversed the judgment, dismissed the certiorari, and charged the original defendant with the costs of the certiorari proceeding up to the trial in the circuit court, and the original plaintiff with subsequent costs in that court and the costs in the supreme court. Dixon v. Caruthers, 17 Tenn. 30, 1836 Tenn. LEXIS 9 (1836).

20. Surety's Liability.

21. —Prosecution Bond.

The surety on a prosecution bond does not engage to pay plaintiff's costs, adjudged against defendant, when such costs cannot be collected from defendant. Woolfolk v. Woolfolk, 167 Tenn. 362, 69 S.W.2d 1089, 1933 Tenn. LEXIS 48 (1934).

22. —Administrator's Bond.

Where administrator of insolvent estate sued under insurance policy payable to administrator but lost the case, the costs were payable by sureties of administrator even though administrator was sole beneficiary under policy. Volunteer State Life Ins. Co. v. Bennett, 5 Tenn. Civ. App. (5 Higgins) 715 (1914).

23. Judgment for Debt and Attachment Quashed.

The judgment rendered on the service of a warrant or summons may be good, although the attachment may be quashed for fatal defects, in which case the costs of the recovery and the costs of attachment will be severally borne by the respective unsuccessful parties. Lowenheim v. Lockhard & Ireland, 61 Tenn. 214, 1872 Tenn. LEXIS 361 (1872); Dougherty v. Kellum, 71 Tenn. 643, 1879 Tenn. LEXIS 126 (1879).

24. Continuance — Judgment for Costs.

Judgment for costs of continuance, once rendered, is necessarily final, and not contingent upon the result of the principal cause. Such costs should not be incorporated with those of the principal judgment, and they do not go up to the supreme court by virtue of the appeal. Remedy against erroneous taxation of such costs in the supreme court. Ross v. McCarty, 22 Tenn. 169, 1842 Tenn. LEXIS 58 (1842). See Whitesides v. Rayle, 22 Tenn. 205, 1842 Tenn. LEXIS 68 (1842); State v. Goodbar, 76 Tenn. 451, 1881 Tenn. LEXIS 31 (1881).

25. State — Liability for Costs.

No judgment for costs can be rendered against the state unless authorized by statute. State ex rel. Bedford v. McCorkle, 163 Tenn. 496, 43 S.W.2d 496, 1930 Tenn. LEXIS 145 (1931).

26. —County Liability.

County in unsuccessful suit to establish road through lands of defendant was liable for all the costs. Senaker v. Justices of Sullivan, 36 Tenn. 116, 1856 Tenn. LEXIS 65 (1856).

27. Successful Party — Liability for Costs.

The successful party will be taxed with the costs of witnesses summoned without reasonable ground, and not examined by him. Lovitt v. Peterson's Adm'rs, 25 Tenn. 23, 1845 Tenn. LEXIS 4 (1845).

Where a party files an original bill, when a proceeding in a pending suit would have been sufficient, he will be taxed with one-half of the costs. Parker v. Britt, 51 Tenn. 243, 1871 Tenn. LEXIS 154 (1871).

The successful party may be taxed with the costs of cumulative witnesses rejected for that reason. Justices of Greene County v. Graham, 65 Tenn. 77, 1873 Tenn. LEXIS 305 (1873); Hite v. Rayburn, 114 Tenn. 463, 85 S.W. 1105, 1904 Tenn. LEXIS 100 (1904).

Where a successful party was in part chargeable with an unnecessary amount of testimony taken, he was held liable for one-half of the entire costs. Lassater v. Garrett & Brown, 63 Tenn. 368, 1874 Tenn. LEXIS 265 (1874).

Where the successful complainant filed as evidence a record which had no relation to the issues involved, he was taxed with the cost of the same. Burks v. Burks, 66 Tenn. 353, 1874 Tenn. LEXIS 143 (1874). See §§ 20-12-119, 20-12-137.

In an inmate's challenge to the parole board's denial of parole, because the board was the prevailing party and no extraordinary circumstances warranting review appeared in the record, the trial court did not abuse its discretion in assessing court costs against the inmate. Meeks v. Tenn. Bd. of Prob. & Parole, — S.W.3d —, 2008 Tenn. App. LEXIS 167 (Tenn. Ct. App. Mar. 24, 2008), rehearing denied, — S.W.3d —, 2008 Tenn. App. LEXIS 245 (Tenn. Ct. App. Apr. 21, 2008).

Where landlord was the successful party under T.C.A. § 20-12-101 in unlawful detainer action brought in general sessions court, costs on appeal were taxed to tenant in accordance with T.C.A. § 20-12-111. O'Neill v. Parks, — S.W.3d —, 2008 Tenn. App. LEXIS 568 (Tenn. Ct. App. Sept. 29, 2008), appeal denied, — S.W.3d —, 2009 Tenn. LEXIS 199 (Tenn. Mar. 23, 2009).

Trial court did not abuse its discretion by assessing costs against the employer, which was the prevailing party, becauseT.C.A. § 20-12-101 and Tenn. R. Civ. P. 54.04(1) permitted the trial court the discretion to tax the prevailing party; the employee was indigent and was self-represented, and the outcome of his case turned on his lack of knowledge of the applicable legal rules. Douglas v. Ledic Realty Serv., — S.W.3d —, 2012 Tenn. LEXIS 964 (Tenn. Dec. 6, 2012), review denied, — S.W.3d —, 2013 Tenn. LEXIS 131 (Tenn. Feb. 13, 2013).

28. —Compromise Pending Suit.

Where the case is compromised, and the defendant pays money in settlement of the claim sued on, he is the “unsuccessful party” and liable to a judgment for costs, especially where there was no agreement as to the costs. State v. Dail, 50 Tenn. 272, 1871 Tenn. LEXIS 95 (1871); Woodward v. Alston, 59 Tenn. 581, 1873 Tenn. LEXIS 118 (1873); Elliston v. Winstead, 78 Tenn. 472, 1882 Tenn. LEXIS 207 (1882).

29. —Federal Court Rule.

Federal courts follow the state statutes on the subject of costs as rules of decision, where there are no federal statutes on the subject; and there being no federal statute defining a “successful party” in a civil action, or allowing him a judgment for costs therein, the federal court will follow this section and the state decisions thereon. Scatcherd v. Love, 166 F. 53, 1908 U.S. App. LEXIS 4836 (6th Cir. Tenn. 1908). (Rule 54 of the federal rules of civil procedure now provides for costs in federal courts.).

30. Attorney Fees and Expenses.

Because the trial court did not use the proper standard in determining the award of attorney fees and expenses, the court remanded for a new determination of such fees. Ferguson Harbour Inc. v. Flash Mkt., Inc., 124 S.W.3d 541, 2003 Tenn. App. LEXIS 286 (Tenn. Ct. App. 2003), appeal denied, Ferguson Harbour, Inc. v. Flash Mkt., Inc., — S.W.3d —, 2003 Tenn. LEXIS 897 (Tenn. 2003).

31. Losing Party Liability.

Because neither the trial court nor the department of correction had the authority to address an inmate's sentence, summary judgment was properly granted to the department; therefore, the assessment of costs against the inmate was in accordance with the facts and T.C.A. § 20-12-101 et seq., and Tenn. R. Civ. P. 54.04. Barker v. Tenn. Dep't of Corr., — S.W.3d —, 2011 Tenn. App. LEXIS 60 (Tenn. Ct. App. Feb. 7, 2011).

32. Enforcement.

Trial court’s order requiring that future pro se  complaints filed by a litigant be referred to a Special Master for a determination of whether prior court costs had been satisfied and for the filing of a written report recommending whether the complaint should be allowed to proceed or be dismissed was a valid exercise of the trial court’s authority. In re Green, — S.W.3d —, 2011 Tenn. App. LEXIS 543 (Tenn. Ct. App. Oct. 4, 2011).

Collateral References. 20 Am. Jur. 2d Costs §§ 4-6, 8, 14.

20 C.J.S. Costs §§ 8-18.

Accommodation party's right to recover costs as against accommodated party after payment of paper. 36 A.L.R. 596, 77 A.L.R. 668.

Against whom fees for guardian ad litem, appointed for infant defendant, are taxable as costs. 30 A.L.R.2d 1148.

Allowance of costs of litigation by beneficiary respecting trust. 9 A.L.R.2d 1132.

Allowances as costs, of such items as maps, models, wall charts, photographs, and the like. 97 A.L.R.2d 138.

Award of costs to defendant on causes of action where claims of some, but not all, of coplaintiffs were successful. 68 A.L.R.2d 1058.

Construction and application of state statute or rule subjecting party making untrue allegations or denials to payment of costs or attorneys' fees. 68 A.L.R.3d 209.

Declaratory judgment, costs in proceeding to obtain. 87 A.L.R. 1249.

Director general of railroads, liability for costs. 8 A.L.R. 987, 10 A.L.R. 956, 11 A.L.R. 1450, 14 A.L.R. 234, 19 A.L.R. 678, 52 A.L.R. 296.

Dismissal of plaintiff's action as entitling defendant to recover attorneys' fees or costs as “prevailing party” or “successful party.” 66 A.L.R.3d 1087.

Divorce suit, effect of death of party to, before final decree, on liability for costs. 104 A.L.R. 667, 158 A.L.R. 1205.

Interlocutory order of one judge allowing or disallowing costs as binding on another judge in the same case. 132 A.L.R. 78.

Joint tort-feasor's liability for costs as affected by satisfaction of judgment by other tort-feasor. 27 A.L.R. 819.

Legacy charged upon land, costs of suit to enforce payment of. 116 A.L.R. 7, 134 A.L.R. 361.

Recovery of computer-assisted research costs as part of or in addition to attorney's fees under state law. 33 A.L.R.6th 305.

Soldiers' bounty laws, liability under, for costs and fees. 35 A.L.R. 813, 22 A.L.R.2d 1134.

Subrogation to mortgage lien, right of one entitled to, to recover costs and fees. 107 A.L.R. 792.

Taxation of costs and expenses in proceedings for discovery or inspection. 76 A.L.R.2d 953.

What constitutes “trial,” “final trial,” or “final hearing” under statute authorizing allowance of attorneys' fees as costs on such proceeding. 100 A.L.R.2d 397.

Who is the “successful party” or “prevailing party” for purposes of awarding costs where both parties prevail on affirmative claims. 66 A.L.R.3d 1115.

Costs 32.

20-12-102. Litigation tax.

Litigation taxes shall be payable as required by §§ 67-4-60267-4-606. A successful plaintiff in any civil action shall be reimbursed by the defendant for any litigation tax incurred, in the same manner as are costs.

Code 1958, § 551; Shan., § 706; Code 1932, § 1257; Acts 1961, ch. 310, § 1; T.C.A. (orig. ed.), § 20-1602; Acts 1982, ch. 925, § 1.

Cross-References. Attorney generals' retirement tax, § 8-622 (Vol. 3 Appendix).

Tax not imposed on actions to enforce tax liens, § 67-5-2410.

NOTES TO DECISIONS

1. Constitutionality.

The tax on litigation to be paid by the unsuccessful party is constitutional. Harrison, Pepper & Co. v. Willis, 54 Tenn. 35, 1871 Tenn. LEXIS 413, 19 Am. Rep. 604 (1871).

2. Cases Covered by Law.

A motion against a sheriff for an insufficient return of an execution is, in substance and legal effect, a suit or action, and therefore subject to the tax on litigation. But a motion of this character made for the first time in the supreme court as an incident to a pending appeal is held not subject to the tax on litigation, for the reason given that it is only a means of enforcing a judgment already rendered. Motion Against Curry, 59 Tenn. 51, 1873 Tenn. LEXIS 26 (1873); McIntosh v. Paul, 74 Tenn. 45, 1880 Tenn. LEXIS 209 (1880). See also State v. Allison, 32 Tenn. 373, 1852 Tenn. LEXIS 85 (1852).

A motion made to recover from a clerk, fees received by him for enrollments not made, is a suit subject to the tax on litigation. Woodward v. Alston, 59 Tenn. 581, 1873 Tenn. LEXIS 118 (1873).

This applies to criminal as well as civil cases, and county courts could assess the tax in both cases for the counties. State v. Howran, 55 Tenn. 824, 1875 Tenn. LEXIS 7 (1875).

Such tax is not costs in a misdemeanor case in such sense that the convict may be imprisoned for it, upon his failure to pay or secure it, though it is declared by statute a part of the costs. Ex parte Griffin, 88 Tenn. 547, 13 S.W. 75, 1889 Tenn. LEXIS 75 (1890).

3. Accrual Date of Tax.

Tax on litigation accrues when the suit is commenced. Elliston v. Winstead, 78 Tenn. 472, 1882 Tenn. LEXIS 207 (1882).

4. Successful Party — Liability.

The state is not entitled to recover as costs, against the successful party, the tax imposed upon the unsuccessful party, in case of the latter's insolvency. State v. Nance, 69 Tenn. 644, 1878 Tenn. LEXIS 148 (1878).

A person authorized to collect tax as costs of suit is liable to the state for the tax collected by him from the successful party, if not paid under protest, unless he shows that he has not repaid it to the party, or has been sued for it by him, or notified by him not to pay it over. Galbraith v. State, 78 Tenn. 568, 1882 Tenn. LEXIS 225 (1882).

5. “Unsuccessful Party” — Meaning.

The words “unsuccessful party” as used in this section mean the party adjudged to pay costs. State v. Cole, 74 Tenn. 492, 1880 Tenn. LEXIS 279 (1880).

Where a suit is compromised before the return day of the writ, and dismissed, the defendant agreeing to pay the costs, he is the unsuccessful party, and is liable for the tax. Elliston v. Winstead, 78 Tenn. 472, 1882 Tenn. LEXIS 207 (1882).

6. —Surety of Unsuccessful Party — Liability.

In a criminal case, a surety on a prosecution or appeal bond, against whom, with his principal as the unsuccessful party, the costs of the cause are adjudged, is not liable for the tax on litigation. State Tax Cases, 80 Tenn. 744, 1884 Tenn. LEXIS 159 (1884); Johnson v. State, 85 Tenn. 325, 2 S.W. 802, 1886 Tenn. LEXIS 48 (1886).

7. Partial Payment of Costs — Application.

If the clerk receives from the unsuccessful party a sum insufficient to pay all the costs, he should pay the state tax first, unless the party himself should make an application of the payment to a specific part of the costs. State v. Stanley, 71 Tenn. 524, 1879 Tenn. LEXIS 110 (1879).

8. State Tax — Liability of County.

Where the county leases the workhouse prisoners to others, and derives a revenue from their labor, it is liable for the state tax in such cases. State v. Sibley, 72 Tenn. 738, 1880 Tenn. LEXIS 86 (1880); State v. Davidson County, 96 Tenn. 178, 33 S.W. 924, 1895 Tenn. LEXIS 23 (1896).

A county is not liable to the state where the misdemeanant, upon payment of the fine and costs to the clerk of the circuit or criminal court, is discharged without payment of the state tax on litigation, and such clerk has paid the fine into the county treasury, for the county cannot be held responsible for the state tax upon the ground that it has received the fine to which it was entitled. State v. Davidson County, 96 Tenn. 178, 33 S.W. 924, 1895 Tenn. LEXIS 23 (1896).

9. Enforcement of Collection.

The tax upon cases tried in the municipal courts is to be paid by the parties convicted, and is not a tax imposed upon the city, or the exercise of one of its agencies or powers, nor is it costs in cases tried before these courts; and the convict cannot be imprisoned to secure the payment of this tax. The city is not liable for this tax unless it is collected. Eastman v. Nashville, 81 Tenn. 717, 1884 Tenn. LEXIS 91 (1884).

10. —Working Out Collection.

Under Acts 1919, ch. 134, which required litigation taxes to be included in the bill of costs, and which prohibited their remission, a misdemeanant cannot be required to work out state and county litigation taxes, but a motion to strike them from the bill of costs may properly be overruled, the remedies being by habeas corpus, if any effort to require him to work out such items should be made. McKee v. State, 142 Tenn. 173, 218 S.W. 233, 1919 Tenn. LEXIS 46 (1920).

The litigation tax is not a part of the fine or costs and a defendant in a criminal case cannot be made to work out such litigation taxes in jail. State ex rel. Dillehay v. White, 217 Tenn. 524, 398 S.W.2d 737, 1966 Tenn. LEXIS 656 (1966).

20-12-103. Copies of records.

The necessary fees paid by the successful party in procuring copies of deeds, bonds, wills or other records filed as part of the testimony shall be taxed in the bill of costs.

Code 1858, § 3206 (deriv. Acts 1849-1850, ch. 116, § 2); Shan., § 4948; Code 1932, § 9101; T.C.A. (orig. ed.), § 20-1603.

Collateral References. 20 Am. Jur. 2d Costs §§ 60-66.

20 C.J.S. Costs §§ 1, 185, 249, 255.

Costs 182.

20-12-104. Postage.

Postage or expressage paid by the officers of the court, or by the parties in sending process, depositions and other papers, being part of the record, by mail or express, shall be taxed in the bill of costs.

Code 1858, § 3207 (deriv. Acts 1841-1842, ch. 129, § 7); Shan., § 4949; mod. Code 1932, § 9102; T.C.A. (orig. ed.), § 20-1604.

Collateral References. 20 Am. Jur. 2d Costs § 52.

20 C.J.S. Costs §§ 1, 249, 255.

20-12-105. Number of witnesses.

  1. Not more than two (2) witnesses called to prove the same fact shall be taxed in any bill of costs against the losing party, except in case of witnesses called to attack or sustain the character of a witness or party.
  2. If more than the number of witnesses allowed are examined in proof of any particular fact, a motion shall be made at the term at which the cause is tried, and the court shall instruct the clerk as to the taxation of costs. The motion shall not be made afterwards without good cause shown.

Code 1858, §§ 3213, 3214 (deriv. Acts 1783, ch. 11, § 4); Acts 1859-1860, ch. 35, § 1; Shan., §§ 4955, 4956; Code 1932, §§ 9108, 9109; T.C.A. (orig. ed.), § 20-1605.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 243.

Collateral References. 20 Am. Jur. 2d Costs § 53.

20 C.J.S. Costs § 242.

Witnesses' and stenographers' fees, service of subpoenas, and depositions, as allowable items of costs in suit by beneficiary respecting trust. 9 A.L.R.2d 1132.

20-12-106. Dismissal — Compromise.

Suits may be dismissed, in writing, out of term time as well as in term, and further costs stopped. If compromised and dismissed before the return day of the original writ, or before the court to which an appeal is taken from the judgment of a court of general sessions, no costs, except the clerk's fee for issuing the writ and the sheriff's fee for serving it, if served, shall be taxed.

Code 1858, § 3199 (deriv. Acts 1826, ch. 28, § 1); Shan., § 4940; Code 1932, § 9093; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 20-1606.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 953.

Tennessee Jurisprudence, 6 Tenn. Juris., Compromise and Settlement, § 2.

Law Reviews.

Real Property — 1954 Tennessee Survey, 7 Vand. L. Rev. 921.

NOTES TO DECISIONS

1. Appeals Not Covered.

This section does not apply to appeals, so as to authorize the appellant to dismiss his appeal before the clerk of the court below, after the perfection of his appeal, and the adjournment of the court appealed from, and his entry of dismissal in the lower court at such time is a nullity. Freeman v. Henderson, 45 Tenn. 647, 1868 Tenn. LEXIS 58 (1868).

2. Power of Court After Dismissal.

A written dismissal of a suit in vacation puts an end to the suit, and terminates the control of the court over it, as fully as if made in term time, and the power and jurisdiction of the court over the cause ceases, except to render judgment for costs, or to make such orders as may be indispensable to give effect to the dismissal. Thompson v. Thompson, 40 Tenn. 527, 1859 Tenn. LEXIS 152 (1859); Sharpe v. Allen, 79 Tenn. 518, 1883 Tenn. LEXIS 98 (1883); Tompkins v. Railroad, 110 Tenn. 157, 72 S.W. 116, 1902 Tenn. LEXIS 49, 100 Am. St. Rep. 795, 61 L.R.A. 340 (1902).

3. Contesting Validity of Order.

Validity of order dismissing plaintiff's suit may be contested and determined; and, for this purpose, an issue may be made, to be tried by the court with or without a jury. Stanton & Moore v. Houston, 59 Tenn. 265, 1873 Tenn. LEXIS 55 (1873).

4. —Fraudulently Procured.

Trial, verdict, and judgment in favor of plaintiff, if the order of dismissal was fraudulently obtained; and there was no error in practice in requiring an issue as to the validity of such order to be made by the pleadings of the parties. Stanton & Moore v. Houston, 59 Tenn. 265, 1873 Tenn. LEXIS 55 (1873).

5. Dismissal Properly Allowed.

Dismissal of plaintiff's suit upon his written order, where no objection is made because of fraud. Stanton & Moore v. Houston, 59 Tenn. 265, 1873 Tenn. LEXIS 55 (1873); Sharpe v. Allen, 79 Tenn. 518, 1883 Tenn. LEXIS 98 (1883); Tompkins v. Railroad, 110 Tenn. 157, 72 S.W. 116, 1902 Tenn. LEXIS 49, 100 Am. St. Rep. 795, 61 L.R.A. 340 (1902).

The fact that if dismissal of a suit to invalidate a tax title to certain real estate is allowed “without prejudice” other suits may be brought, thereby causing a cloud on the title to the property in question, is not a sufficient reason to prevent the court in its discretion allowing a voluntary dismissal. Lyle v. De Bord, 185 Tenn. 380, 206 S.W.2d 392, 1947 Tenn. LEXIS 342 (1947).

6. —Assignment of Reasons — Necessity.

Where defendant had notice of application by complainants to dismiss suit to invalidate tax title and defendants objected to dismissal the suit was properly dismissed without prejudice though complainants gave no reason for dismissal, since a reason for dismissal is not required. Lyle v. De Bord, 185 Tenn. 380, 206 S.W.2d 392, 1947 Tenn. LEXIS 342 (1947).

7. —Writing Directory.

Under this section it is not mandatory that a petition or application to dismiss be in writing. Lyle v. De Bord, 185 Tenn. 380, 206 S.W.2d 392, 1947 Tenn. LEXIS 342 (1947).

8. Litigation Tax.

Tax on litigation is not avoided by such dismissal upon compromise before the return day of the writ, because such tax accrues when the suit is commenced; and where the defendant agrees to pay the costs, he is the unsuccessful party, and liable for the tax. Elliston v. Winstead, 78 Tenn. 472, 1882 Tenn. LEXIS 207 (1882).

9. Operative Date of Order.

Dismissal, when established by proof, with or without contest, will relate back to, and be operative from, the day of its execution. Sharpe v. Allen, 79 Tenn. 518, 1883 Tenn. LEXIS 98 (1883).

10. Attorney's Lien.

Dismissal of cause, by parties, in accordance with agreement between them, did not preclude attorney's right to file petition to have court investigate and declare attorney's lien on property obtained by client in the compromise. Wood v. Winslow, 1 Tenn. App. 582, — S.W. —, 1925 Tenn. App. LEXIS 78 (Tenn. Ct. App. 1925).

Where the case was dismissed by the parties and the attorneys then filed a petition on original case to have fees declared a lien upon the property and the parties were required by the court to answer but were not served with process, the court was without jurisdiction to determine amount of fees but only jurisdiction to declare a lien by decree or compromise and preserve record evidence of it. Wood v. Winslow, 1 Tenn. App. 582, — S.W. —, 1925 Tenn. App. LEXIS 78 (Tenn. Ct. App. 1925).

Collateral References. 20 Am. Jur. 2d Costs §§ 18, 19.

20 C.J.S. Costs §§ 66, 68.

Actual payment of costs as a condition to dismissal under rule or statute providing for voluntary dismissal without prejudice upon such terms and conditions as court deems proper. 21 A.L.R.2d 627, 34 A.L.R.4th 778.

Costs 48.

20-12-107. Omitted costs.

Costs omitted in taxing the bills of costs may be retaxed at any time upon application to the court; but if the judgment for costs has been paid, the party against whom the retaxation is asked shall have five (5) days' notice of the application.

Code 1858, § 3211 (deriv. Acts 1855-1856, ch. 70, § 1); Shan., § 4953; Code 1932, § 9106; T.C.A. (orig. ed.), § 20-1607.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 243.

NOTES TO DECISIONS

1. Notice of Motion for Retaxation.

Where the defendant has paid the costs adjudged against him, before the motion for retaxation of costs is made, he is entitled, under this section, to five days' notice of the application. State v. Hill, 43 Tenn. 98, 1866 Tenn. LEXIS 21 (1866).

2. Judgment Against State for Boarding Jury — Invalidity.

A judgment against the state for costs of boarding jury, rendered at a term subsequent to the termination of the case, is void, and cannot be sustained as under a motion, under this section, to retax costs omitted in taxing the bills of costs. State ex rel. Nealis v. Nolan, 76 Tenn. 663, 1881 Tenn. LEXIS 60 (1881).

3. Appeal Dismissed Without Remand.

Where a chancery case was appealed to the appellate court which dismissed the appeal without remand, a petition filed by the receiver of an estate, in the chancery court, after dismissal of the appeal by the appellate court, cannot be treated as an application for the taxation of costs under this section and § 20-12-108, since the chancery court had lost jurisdiction of the case. James v. Williams, 20 Tenn. App. 420, 99 S.W.2d 831, 1936 Tenn. App. LEXIS 33 (Tenn. Ct. App. 1936).

4. Plea in Abatement.

Costs upon overruling a plea in abatement, not adjudged at the time, could be adjudged when the cause was finally disposed of. Rose v. Bolinger, 25 Tenn. 26, 1845 Tenn. LEXIS 6 (1845).

Collateral References. 20 Am. Jur. 2d Costs § 93.

20 C.J.S. Costs § 288.

Costs 213.

20-12-108. Correction of erroneous taxation.

If the taxation of costs is excessive by charging the costs of witnesses who were not examined or by charging costs to an improper party, or taxing costs contrary to law, or the taxation is otherwise erroneous, the party aggrieved may move the court for a retaxation, setting forth the particulars in which the clerk has erred.

Code 1858, § 3212; Shan., § 4954; Code 1932, § 9107; T.C.A. (orig. ed.), § 20-1608.

Cited: James v. Williams, 20 Tenn. App. 420, 99 S.W.2d 831, 1936 Tenn. App. LEXIS 33 (Tenn. Ct. App. 1936); Lawrence v. Chancery Court, 188 F.3d 687, 1999 FED App. 314P, 1999 U.S. App. LEXIS 20773 (6th Cir. Tenn. 1999).

NOTES TO DECISIONS

1. Jurisdiction.

2. —Appellate Court.

To enable the appellate court to correct the taxation of costs in the court below, the motion for such correction or retaxation must first be made in the lower court, its action had thereon, and the motion and judgment entered of record; and the taxation of costs by the inferior court for the attendance of witnesses therein cannot be corrected by the appellate court, without such motion and judgment of record. Sherman v. Brown, 12 Tenn. 560, 12 Tenn. 561, 1833 Tenn. LEXIS 93 (1833); State v. Goodbar, 76 Tenn. 451, 1881 Tenn. LEXIS 31 (1881); Arnold v. State, 96 Tenn. 82, 33 S.W. 723, 1895 Tenn. LEXIS 12 (1896); Troutt v. Alabama G. S. R. Co., 97 Tenn. 364, 37 S.W. 90 (1896); State v. Richards, 120 Tenn. 477, 113 S.W. 370, 1908 Tenn. LEXIS 38 (1908).

Appellate court's jurisdiction over the taxation of its own costs is plenary; and, where there is anything in the transcript to correct by, it may correct an erroneous taxation of costs in the inferior court, but not otherwise. State v. Goodbar, 76 Tenn. 451, 1881 Tenn. LEXIS 31 (1881); Troutt v. Alabama G. S. R. Co., 97 Tenn. 364, 37 S.W. 90 (1896); State v. Richards, 120 Tenn. 477, 113 S.W. 370, 1908 Tenn. LEXIS 38 (1908).

A bill of exceptions is necessary in the appellate court. The refusal of the circuit judge to retax costs upon a motion made before judgment and taxation thereof, which fails to specify the items or grounds of objection thereto, will not be reviewed in the appellate court upon a record containing no bill of exceptions. Arnold v. State, 96 Tenn. 82, 33 S.W. 723, 1895 Tenn. LEXIS 12 (1896); State v. Richards, 120 Tenn. 477, 113 S.W. 370, 1908 Tenn. LEXIS 38 (1908).

3. —Chancery.

A bill will not lie in chancery to correct the erroneous taxation of costs in a suit in a court of law. Ross v. McCarty, 22 Tenn. 169, 1842 Tenn. LEXIS 58 (1842); Whitesides v. Rayle, 22 Tenn. 205, 1842 Tenn. LEXIS 68 (1842); State v. Richards, 120 Tenn. 477, 113 S.W. 370, 1908 Tenn. LEXIS 38 (1908).

4. Procedure.

5. —Time for Retaxation.

The taxation of costs is at all times under the control of the court; and costs improperly taxed and paid may be retaxed and ordered to be refunded, even at a subsequent term of the court. Williams's Lessee v. Henderson, 1 Tenn. 424, 1809 Tenn. LEXIS 18 (1809); State v. Richards, 120 Tenn. 477, 113 S.W. 370, 1908 Tenn. LEXIS 38 (1908).

A motion to retax the costs before the taxation thereof is premature. Arnold v. State, 96 Tenn. 82, 33 S.W. 723, 1895 Tenn. LEXIS 12 (1896); State v. Richards, 120 Tenn. 477, 113 S.W. 370, 1908 Tenn. LEXIS 38 (1908).

6. —Allegations of Motion.

The objectionable items should be specified in motion to retax. Arnold v. State, 96 Tenn. 82, 33 S.W. 723, 1895 Tenn. LEXIS 12 (1896); State v. Richards, 120 Tenn. 477, 113 S.W. 370, 1908 Tenn. LEXIS 38 (1908).

7. —Chancery Court Costs.

An original bill will not lie in the chancery court for the correction of the taxation of costs, as to items wrongfully charged or taxed in the bill of costs by the clerk and master. The remedy is by petition to the chancellor for retaxation of the costs and supersedeas in the meantime as to the erroneous items. Clark v. Stull, 1 Shan. 660 (1876); State v. Richards, 120 Tenn. 477, 113 S.W. 370, 1908 Tenn. LEXIS 38 (1908).

8. —Supersedeas Operation.

Court could order a retaxation of costs and could if necessary award a supersedeas. Ross v. McCarty, 22 Tenn. 169, 1842 Tenn. LEXIS 58 (1842); Clark v. Stull, 1 Shan. 660 (1876).

A rule to correct the taxation of costs is a mere collateral motion, and does not operate, per se, as a supersedeas, and, if not acted on, it will be considered as abandoned. Miller v. Netherland, 31 Tenn. 66, 1851 Tenn. LEXIS 18 (1851).

9. Required Evidence to Justify Retaxation.

Retaxation of costs, so as to embrace omitted fees, will not be allowed unless it shall be made to appear that the services for which the fees are claimed were performed. The statements of the petition for retaxation, and the recitals of the order made thereon setting out the items, do not, without more, afford evidence to justify retaxation. Johnson v. State, 94 Tenn. 499, 29 S.W. 963, 1894 Tenn. LEXIS 62 (1894).

10. Recovery from Incompetent Witness.

Retaxation of costs striking out the item of costs for the attendance of an incompetent witness of the successful party, which has been paid, does not entitle the unsuccessful party to recover it from such witness, for his right of action, if the correction be legally made, is against the successful party. This is based upon the rule that an incompetent witness is entitled to compensation for his attendance, if he be examined. Gray v. Alexander, 26 Tenn. 16, 1846 Tenn. LEXIS 37 (1846).

Collateral References. 20 Am. Jur. 2d Costs §§ 92, 93.

20 C.J.S. Costs § 268.

Costs 211-218.

20-12-109. Charged against real plaintiff.

Where suit is brought in the name of one for the use of another, the person for whose use the action is brought is the real plaintiff, against whom judgment for costs shall be given.

Code 1858, § 3200 (deriv. Acts 1825, ch. 29, § 1; 1825, ch. 45, § 5); Shan., § 4941; Code 1932, § 9094; T.C.A. (orig. ed.), § 20-1609.

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

Cited: Andrew Jackson Hotel, Inc. v. Platt, 19 Tenn. App. 360, 89 S.W.2d 179, 1935 Tenn. App. LEXIS 48 (Tenn. Ct. App. 1935); Metropolitan Life Ins. Co. v. Brown, 25 Tenn. App. 514, 160 S.W.2d 434, 1941 Tenn. App. LEXIS 141 (Tenn. Ct. App. 1941).

NOTES TO DECISIONS

1. Construction of Statute.

This section is restricted to making real party liable for costs and does not constitute a rule in evidence. Anderson v. Administrators of Bradie, 15 Tenn. 296, 15 Tenn. 297, 1835 Tenn. LEXIS 1 (1835).

This statute does not multiply the cases in which a suit may be brought in the name of one person for the use of another, nor does it in any manner, except as to the costs, extend the powers of the court. Smith's Ex'rs v. Mabry, 17 Tenn. 313, 1836 Tenn. LEXIS 51 (1836).

Where an insured had assigned her right, title and interest in certain policies to an assignee, a suit on the policies could properly be brought in the name of the insured, as nominal plaintiff, for the use and benefit of the assignee, the real plaintiff, and the assignee since he was a Tennessee resident could properly 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).

2. —Consent of Nominal Plaintiff.

The statute requiring suit for breach and recovery on a contractor's bond to be brought in name of county as payee, for use, it is not necessary to obtain consent of nominal plaintiff. Pritchard v. Johnson-Toby Constr. Co., 155 Tenn. 571, 296 S.W. 17, 1926 Tenn. LEXIS 81 (1927).

Collateral References. 20 Am. Jur. 2d Costs §§ 26, 29.

20 C.J.S. Costs § 113.

Costs 93.

20-12-110. Dismissal, abatement or discontinuance.

In cases of nonsuit, dismissal, abatement by death of plaintiff or discontinuance, the defendant is the successful party, within the meaning of § 20-12-101.

Code 1858, § 3201 (deriv. Acts 1794, ch. 1, § 74); Shan., § 4942; Code 1932, § 9095; T.C.A. (orig. ed.), § 20-1610.

Cited: Hagerty v. Hughes, 63 Tenn. 222, 1874 Tenn. LEXIS 233 (1874); O'Neill v. Parks, — S.W.3d —, 2008 Tenn. App. LEXIS 568 (Tenn. Ct. App. Sept. 29, 2008).

NOTES TO DECISIONS

1. Dismissal Effect.

In action against individual and corporation, in which corporation's plea in abatement was sustained and plaintiff's motion for new trial was overruled, and in which plaintiff perfected an appeal and thereafter entered voluntary nonsuit as to individual defendant, corporate defendant's motion to dismiss appeal was properly sustained on ground that appeal was prematurely prayed, granted and perfected. Denson v. Webb, 23 Tenn. App. 599, 136 S.W.2d 59, 1938 Tenn. App. LEXIS 92 (Tenn. Ct. App. 1938).

Where plaintiff perfected an appeal from judgment sustaining plea in abatement filed by corporate defendant and thereafter took voluntary nonsuit as to individual defendant in same action, whereupon corporate defendant moved to dismiss appeal and plaintiff then filed petition for writ of error, nonsuit was properly granted because there had been no valid appeal at time it was taken and judgment on plea in abatement was therefore a final judgment subject to review either by appeal in error or petition for writ of error. Denson v. Webb, 23 Tenn. App. 599, 136 S.W.2d 59, 1938 Tenn. App. LEXIS 92 (Tenn. Ct. App. 1938).

2. Settlement After Reversal.

Where a case was settled after reversal of a judgment for defendant, and the cause was dismissed, it was within the court's discretion to award costs to plaintiff, even though he was not the successful party. Scatcherd v. Love, 166 F. 53, 1908 U.S. App. LEXIS 4836 (6th Cir. Tenn. 1908).

Collateral References.

Dismissal of plaintiff's action as entitling defendant to recover attorneys' fees or costs as “prevailing party” or “successful party.” 66 A.L.R.3d 1087.

Costs 48.

20-12-111. Appeal from general sessions court.

If the appeal of the defendant from a judgment of a court of general sessions is dismissed for any cause, the original plaintiff is the successful party, and so of other cases.

Code 1858, § 3202; Shan., § 4943; Code 1932, § 9096; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 20-1611.

Cited: Dalton v. Dean, 22 Tenn. App. 56, 117 S.W.2d 973, 1938 Tenn. App. LEXIS 4 (Tenn. Ct. App. 1938); Hamby v. Northcut, 25 Tenn. App. 11, 149 S.W.2d 484, 1940 Tenn. App. LEXIS 87 (Tenn. Ct. App. 1940); Coleman v. Coleman, 190 Tenn. 286, 229 S.W.2d 341, 1950 Tenn. LEXIS 480 (1950).

NOTES TO DECISIONS

1. Habeas Corpus.

Taxation of costs against the state in habeas corpus proceedings is permitted only when defendant in a criminal proceeding is discharged upon habeas corpus. State ex rel. Bedford v. McCorkle, 163 Tenn. 496, 43 S.W.2d 496, 1930 Tenn. LEXIS 145 (1931).

2. Costs.

Where landlord was the prevailing party in an unlawful detainer action brought in general sessions court, costs on appeal were taxed to tenant in accordance with T.C.A. § 20-12-111; given that there was a specific statute governing the award costs, trial court did not abuse its discretion by taxing costs. O'Neill v. Parks, — S.W.3d —, 2008 Tenn. App. LEXIS 568 (Tenn. Ct. App. Sept. 29, 2008), appeal denied, — S.W.3d —, 2009 Tenn. LEXIS 199 (Tenn. Mar. 23, 2009).

Collateral References. 20 C.J.S. Costs §§ 313-318, 399.

Costs 232.

20-12-112. Jurisdictional defects — Irregular transfer.

Where a suit is dismissed from any court for want of jurisdiction or because it has not been regularly transferred from an inferior to a superior court, the costs shall be adjudged against the party attempting to institute or bring up the cause.

Code 1858, § 3215 (deriv. Acts 1832, ch. 5); Shan., § 4957; Code 1932, § 9110; T.C.A. (orig. ed.), § 20-1612.

Textbooks. Tennessee Jurisprudence, 8 Tenn. Juris., Costs, § 28.

Cited: O'Neill v. Parks, — S.W.3d —, 2008 Tenn. App. LEXIS 568 (Tenn. Ct. App. Sept. 29, 2008).

NOTES TO DECISIONS

1. Want of Jurisdiction.

2. —Generally.

To remedy the defect caused by the rule that where there was no jurisdiction the court could render no judgment for costs, this section was enacted; and, under it, the party whose suit or appeal is dismissed for want of jurisdiction shall be adjudged to pay full costs. Welsh v. Marshall, 14 Tenn. 455, 1834 Tenn. LEXIS 111 (1834); Cartmell v. McClaren, 59 Tenn. 41, 1873 Tenn. LEXIS 23 (1873); Jacobs v. Parker, 66 Tenn. 434, 1874 Tenn. LEXIS 161 (1874); Jackson v. Baxter, 73 Tenn. 344, 1880 Tenn. LEXIS 135 (1880); Nashville v. Wilson, 88 Tenn. 407, 12 S.W. 1082, 1889 Tenn. LEXIS 63 (1890); Douglass Bros. v. Neguelona, 88 Tenn. 769, 14 S.W. 283, 1890 Tenn. LEXIS 19 (1890); Frazier v. Nashville Gas & Heating Co., 164 Tenn. 8, 46 S.W.2d 62, 1931 Tenn. LEXIS 2 (1932). But see State v. Logston, 50 Tenn. 276, 1871 Tenn. LEXIS 97 (1871), not citing the Code and holding that, where a change of venue is illegally ordered, and the court to which the change is ordered has, in consequence, no jurisdiction, it can render no judgment for the costs of a trial which has taken place there, nor can the court of the county from which the cause came; and neither court has any power of retaxation of the costs.

3. —Judgment Under Unconstitutional Statute.

Where a judgment is void and reversed because the judge who rendered the same was acting under an unconstitutional statute, the appellant is entitled to a judgment against the appellee for the costs. State v. Simpson, 13 Tenn. 364, 13 Tenn. 365, 1833 Tenn. LEXIS 188 (1833).

4. —Jurisdiction of Subject Matter.

The authorities holding that a court has no power to adjudge costs are limited to cases where there was no jurisdiction of the subject matter, as contradistinguished from jurisdiction over the person. Brown v. Brown, 155 Tenn. 530, 296 S.W. 356, 1926 Tenn. LEXIS 77 (1927).

If the court has jurisdiction of the subject matter, it has power to adjudge the costs though the cause is remanded by the appellate court and suit is ordered dismissed upon defendant's plea raising question of venue for action of divorce. Brown v. Brown, 155 Tenn. 530, 296 S.W. 356, 1926 Tenn. LEXIS 77 (1927).

5. —Suit in Wrong County.

Whenever a court has jurisdiction of the subject matter, there is jurisdiction to tax the expenses of receivership as costs within meaning of this section, although the cause is properly dismissed for improper venue. Brown v. Brown, 155 Tenn. 530, 296 S.W. 356, 1926 Tenn. LEXIS 77 (1927).

Where suit to wind up an insolvent corporation was brought in wrong county and receiver was appointed, the court had jurisdiction to allow such receiver a fee for the work done by him. Crosby Milling Co. v. Grant, 7 Tenn. App. 162, — S.W. —, 1927 Tenn. App. LEXIS 19 (Tenn. Ct. App. 1927).

6. —Sureties on Prosecution Bond.

Where the court in which instituted had no jurisdiction of an action, the sureties on a prosecution bond should not be charged with the costs of an appeal. Reynolds v. Hamilton, 18 Tenn. App. 380, 77 S.W.2d 986, 1934 Tenn. App. LEXIS 40 (Tenn. Ct. App. 1934).

7. Appeal.

8. —Appeal Bond Lacking.

Costs may be adjudged against appellant where case is dismissed for insufficiency of appeal bond. Markham v. Haddad, 2 Tenn. App. 370, — S.W. —, 1926 Tenn. App. LEXIS 31 (Tenn. Ct. App. 1926).

On dismissal of appeal from justice of the peace (now general sessions court) to the circuit court, for want of appeal bond, circuit court was justified in adjudging the costs against the appellant. Baxter v. State, 157 Tenn. 532, 11 S.W.2d 854, 1928 Tenn. LEXIS 216 (1928).

Where an appeal bond is filed too late to be effective to bring case before the Court of Appeals, the surety on the appeal bond is not liable on same, though appellant is. Physicians Mut. Health & Acci. Ins. Co. v. Grigsby, 165 Tenn. 151, 53 S.W.2d 381, 1932 Tenn. LEXIS 29 (1932).

9. —Premature Appeal.

On dismissal of appeal as premature because no judgment had been entered in court below, costs of the attempted appeal should be against the appellant. Wind Rock Coal & Coke Co. v. Robbins, 1 Tenn. App. 734, — S.W. —, 1926 Tenn. App. LEXIS 14 (Tenn. Ct. App. 1926).

10. —Appeal from Nonappealable Order.

The order of the chancery court refusing to set aside an appealable decree is not appealable, and an attempted appeal from such order will be dismissed with costs adjudged against appellant. McClister v. Milligan, 1 Tenn. App. 258, — S.W. —, 1925 Tenn. App. LEXIS 40 (Tenn. Ct. App. 1925).

11. —Transcript Inadequate.

Costs may be adjudged against appellant where dismissal is because transcript does not show judgment below to be final. Cobble v. International Agricultural Corp., 2 Tenn. App. 356, — S.W. —, 1925 Tenn. App. LEXIS 112 (Tenn. Ct. App. 1925).

Costs may be adjudged against appellant where the case is dismissed for inadequate transcript. Smartt v. Woodlee, 5 Tenn. App. 59, — S.W. —, 1927 Tenn. App. LEXIS 35 (Tenn. Ct. App. 1927).

12. —Both Parties Attempting to Appeal Too Late.

Where plaintiff and defendant each attempted to appeal after it was too late to appeal, the costs of the attempted appeal were divided equally between them and taxed accordingly. Lee v. Sanders, 7 Tenn. App. 167, — S.W. —, 1927 Tenn. App. LEXIS 20 (Tenn. Ct. App. 1927).

Decisions Under Prior Law

1. Rule Before Statute Enacted.

Before this statute, where there was no jurisdiction, the rule was that the court had no power to do more than to strike the cause from the docket, and could render no judgment for costs. Rogers v. Hill, 9 Tenn. 400, 1830 Tenn. LEXIS 34 (1830); Taul's Adm'r v. Collinsworth, 10 Tenn. 579, 1831 Tenn. LEXIS 20 (1831); Turner v. Farley, 11 Tenn. 299, 11 Tenn. 300, 1832 Tenn. LEXIS 46 (1832); Mayor, etc., of Nashville v. Wilson, 88 Tenn. 407, 12 S.W. 1082, 1889 Tenn. LEXIS 63 (1890); Douglass v. Neguelona, 88 Tenn. 769, 14 S.W. 283, 1890 Tenn. LEXIS 19 (1890); Coleman v. Coleman, 190 Tenn. 286, 229 S.W.2d 341, 1950 Tenn. LEXIS 480 (1950).

Collateral References. 20 C.J.S. Costs § 399.

Costs 155.

20-12-113. Abatement of action.

When a plaintiff suffers the plaintiff's action to abate by the death of the defendant or other cause, or where the suit abates by the death of the plaintiff and the plaintiff's representatives fail to revive the action, judgment for costs may be rendered against the plaintiff or representatives in the name of the officers of court, or any of them, and, if against a representative, shall be paid as other claims against the estate.

Code 1858, § 3209; Shan., § 4951; mod. Code 1932, § 9104; T.C.A. (orig. ed.), § 20-1613.

Cited: O'Neill v. Parks, — S.W.3d —, 2008 Tenn. App. LEXIS 568 (Tenn. Ct. App. Sept. 29, 2008).

NOTES TO DECISIONS

1. Malicious Prosecution Action Abated.

Costs adjudged against plaintiff, upon abatement of action for malicious prosecution, by the death of the defendant pending the suit or the plaintiff's appeal from a verdict and judgment in favor of the defendant; and the costs of both the court below and of the appeal in the supreme court will be adjudged against the plaintiff and his sureties upon his respective prosecution and appeal bonds. Bolin v. Stewart, 66 Tenn. 298, 1874 Tenn. LEXIS 129 (1874).

Collateral References. 20 Am. Jur. 2d Costs § 17.

20 C.J.S. Costs § 65.

Costs 45.

20-12-114. Nominal damages recovered.

In civil actions founded upon assault, assault and battery, malicious prosecution, false imprisonment or for the recovery of damages for overflowing of water by the erection of a gristmill or other waterworks of utility, the plaintiff recovers no more costs than damages, unless the recovery exceeds five dollars ($5.00).

Code 1858, § 3198 (deriv. Acts 1715, ch. 27, § 8; 1811, ch. 91, § 1; 1829, ch. 1, § 1; 1851-1852, ch. 146); Shan., § 4939; mod. Code 1932, § 9092; T.C.A. (orig. ed.), § 20-1616.

Cited: Smythe v. Easy Quick Stores, Inc., 754 S.W.2d 57, 1988 Tenn. App. LEXIS 44 (Tenn. Ct. App. 1988); O'Neill v. Parks, — S.W.3d —, 2008 Tenn. App. LEXIS 568 (Tenn. Ct. App. Sept. 29, 2008).

NOTES TO DECISIONS

1. Trespass Quare Clausum Fregit Not Covered.

Trespass quare clausum fregit, an action of trespass for injury to land, is not included in this section. Winters v. McGhee, 35 Tenn. 128, 1855 Tenn. LEXIS 28 (1855).

2. Defendant's Recovery.

Where the plaintiff does not recover more than five dollars as damages, the defendant may recover judgment against the plaintiff for the balance of the costs. It is immaterial whether the case is tried by a jury or by the judge without the intervention of a jury. Steffner v. Burton, 87 Tenn. 135, 10 S.W. 358, 1888 Tenn. LEXIS 45 (1888).

3. Assault and Battery Cases.

This statute applies, in an action for assault and battery, regardless of whether the injury did or did not cause death. Jenkins v. Hankins, 98 Tenn. 545, 41 S.W. 1028, 1896 Tenn. LEXIS 247 (1897), superseded by statute as stated in, Gardner v. Steinforth, — S.W.2d —, 1994 Tenn. App. LEXIS 87 (Tenn. Ct. App. Feb. 25, 1994).

4. Charge as to Damages.

It is error for the trial judge to instruct the jury in a suit for a malicious prosecution of a felony that they might award nominal damages, such as one cent and such as would carry the costs, without further stating to the jury that a verdict not exceeding five dollars would not carry full costs. Mullins v. Hudson, 2 Tenn. Civ. App. (2 Higgins) 352 (1911).

5. Water Overflow.

In suit to recover damages for overflow of water the plaintiff was not limited to recovery of costs in amount awarded for damages where record did not affirmatively show that overflow was due to erection or construction of grist mill, but was entitled to recover full amount of costs. Gray v. Tate, 30 Tenn. 64, 1850 Tenn. LEXIS 54 (1850).

Collateral References. 20 Am. Jur. 2d Costs §§ 14, 15, 20, 61.

20 C.J.S. Costs § 23.

Attorneys' fees as element of damages in action for false imprisonment or arrest, or for malicious prosecution. 21 A.L.R.3d 1068.

Damages 70-73.

20-12-115. Actions for overflow of water.

In all suits for the recovery of damages occasioned by the overflowing of water by the erection of a dam for a grist or saw mill or other waterworks of utility, the plaintiff, if successful, shall be entitled to full costs, unless the plaintiff's damages do not exceed five dollars ($5.00), in which case the plaintiff shall not recover more costs than damages.

Code 1858, § 3404 (deriv. Acts 1794, ch. 1, § 74; 1851-1852, ch. 146, § 1); Shan., § 5159; Code 1932, § 9318; T.C.A. (orig. ed.), § 20-1617.

Cited: O'Neill v. Parks, — S.W.3d —, 2008 Tenn. App. LEXIS 568 (Tenn. Ct. App. Sept. 29, 2008).

20-12-116. Usury.

If it appears in the action that usurious interest has been intentionally taken or reserved, the person taking or reserving such usury shall pay full costs.

Code 1858, § 3205; Shan., § 4947; Code 1932, § 9100; T.C.A. (orig. ed.), § 20-1618.

Textbooks. Tennessee Jurisprudence, 24 Tenn. Juris., Usury, § 33.

Cited: O'Neill v. Parks, — S.W.3d —, 2008 Tenn. App. LEXIS 568 (Tenn. Ct. App. Sept. 29, 2008).

NOTES TO DECISIONS

1. Costs Incident to Question of Usury Covered.

The entire costs of the litigation in which usury is discovered shall not be paid by the party receiving or reserving it, but only the costs incident to the litigation over the question of usury. Where the complainant succeeds in recovering on his debt purged of the usury, he is entitled to recover the costs of the cause, except the costs incident to the question of usury, with which he must be taxed. Ronner v. Welcker, 99 Tenn. 623, 42 S.W. 439, 1897 Tenn. LEXIS 73 (1897).

2. Cross Bill to Enforce Usurious Note.

The complainant in a cross bill to enforce a deed of trust securing a note, a sale under which was enjoined, is properly charged with all costs, except that of the sale, where his unfounded claim to retain all usurious payments made more than six years before the commencement of the suit, without applying them to the principal, was the cause of the litigation. Tyler v. Walker, 101 Tenn. 306, 47 S.W. 424, 1898 Tenn. LEXIS 65 (1898).

Where a cross bill, alleging usury, is dismissed, because the usurious transactions, though proved, have been settled, the cross defendant must be taxed with the cost of the cross bill, though he was successful in his defense. Security Bank & Trust Co. v. Goldfarb, 140 Tenn. 251, 204 S.W. 428, 1918 Tenn. LEXIS 37 (1918).

3. Mortgage Securing Usurious Note — Foreclosure.

It is error to decree costs against defendants in a suit to foreclose a mortgage executed to secure a usurious note. Kelton v. Brown, 39 S.W. 541, 1897 Tenn. Ch. App. LEXIS 3 (1897).

4. Attorney Fees — Instructions.

Where bill of exceptions and assignments of error did not contain appropriate portion of charge made to jury, no consideration was given complainant's assignment that trial court erred in charging the jury that when they found the amount of the note, they should add 10 percent thereto for attorney's fee, as this was violation of statute providing that persons taking usury shall pay all costs. Crabb v. Cole, 19 Tenn. App. 201, 84 S.W.2d 597, 1935 Tenn. App. LEXIS 34 (Tenn. Ct. App. 1935).

20-12-117. Taxation between defendants.

The defendants against whom judgment has been recovered are entitled, as between themselves, to a taxation of the costs of witnesses whose testimony was obtained at the instance of one (1) of the defendants and inured exclusively to the defendant's benefit.

Code 1858, § 3210 (deriv. Acts 1851-1852, ch. 178, § 2); Shan., § 4952; Code 1932, § 9105; T.C.A. (orig. ed.), § 20-1619.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 243.

Cited: O'Neill v. Parks, — S.W.3d —, 2008 Tenn. App. LEXIS 568 (Tenn. Ct. App. Sept. 29, 2008).

Collateral References. 20 C.J.S. Costs § 222.

20-12-118. Cases not expressly covered.

If any case occurs not directly or by fair implication embraced in the express provisions of the law, the court may make such disposition of the costs as, in its sound discretion, may seem right.

Code 1858, § 3220; Shan., § 4962; Code 1932, § 9115; T.C.A. (orig. ed.), § 20-1620.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), §§ 242, 245-247.

Tennessee Jurisprudence, 8 Tenn. Juris., Costs, § 6.

Law Reviews.

The Procedural Details of the Proposed Tennessee Rules of Appellate Procedure, VII. Disposition of Appeals (John L. Sobieski, Jr.), 46 Tenn. L. Rev. 90.

Cited: O'Neill v. Parks, — S.W.3d —, 2008 Tenn. App. LEXIS 568 (Tenn. Ct. App. Sept. 29, 2008).

NOTES TO DECISIONS

1. Discretion.

2. —Division of Costs.

Where a large record was unnecessarily built up in a case where deep feeling was manifested, the costs as taxed by the chancellor were sustained as not based on an abuse of his discretion. Mathis v. Campbell, 22 Tenn. App. 40, 117 S.W.2d 764, 1938 Tenn. App. LEXIS 3 (Tenn. Ct. App. 1938).

3. —Equity Considered.

Where daughter as a poor person appealed proceeding to establish trust in favor of children on property of deceased mother the supreme court exercised its discretion and assessed costs against the estate of the successful party. Askew v. Mills, 196 Tenn. 527, 268 S.W.2d 569, 1954 Tenn. LEXIS 415 (1954).

4. Neither Party Successful.

Where neither party is successful within the meaning of § 20-12-101, costs should be taxed under this section. Garrison v. Trotter, 114 Tenn. 526, 86 S.W. 1078, 1904 Tenn. LEXIS 106 (1904).

Where the plaintiff may not be the “successful party” and the defendant was certainly not the “successful party,” because he had acknowledged his liability by paying a certain sum of money in settlement of the claim sued on, the case comes within the discretion of the court; and the court has authority to tax the costs to either party, or to divide them, as the equity of the case may demand; and the exercise of this discretion, in the absence of great abuse, will not be disturbed. Scatcherd v. Love, 166 F. 53, 1908 U.S. App. LEXIS 4836 (6th Cir. Tenn. 1908). See Turley-Bullington Mtg. Co. v. Brown, 4 Tenn. App. 500, 1926 Tenn. App. LEXIS 201 (1926); Lewis v. Koehn, 5 Tenn. App. 530, — S.W. —, 1927 Tenn. App. LEXIS 88 (Tenn. Ct. App. 1927).

5. Unnecessary Witnesses.

It is the exercise of the court's sound discretion to tax the successful party with the costs of his unnecessary and cumulative witnesses rejected for that reason. Justices of Greene County v. Graham, 65 Tenn. 77, 1873 Tenn. LEXIS 305 (1873); Hite v. Rayburn, 114 Tenn. 463, 85 S.W. 1105, 1904 Tenn. LEXIS 100 (1904).

6. Unauthorized Costs Not Allowable.

This section confers no discretion upon the courts to allow costs which are not expressly authorized. It only authorizes the court to exercise its discretion in adjudging costs as between the parties, which have clearly accrued, if any case should occur where the law has not directed how they shall be adjudged. Perkins v. State, 68 Tenn. 1 (1876); Railroad v. Boswell, 104 Tenn. 529, 58 S.W. 117, 1900 Tenn. LEXIS 25 (1900).

7. Affirmance Because of Remittitur.

Where the appellee is forced to a remittitur, in order to obtain an affirmance of the judgment below, the costs will be divided, for, in such case, both parties are partly successful, and the costs are in the discretion of the court. Schoonover v. Stillman, 3 Shan. 574 (1875); Hite v. Rayburn, 114 Tenn. 463, 85 S.W. 1105, 1904 Tenn. LEXIS 100 (1904).

8. Costs Assessed Against Successful Parties.

In declaratory judgment proceeding brought to determine the constitutionality of an act pursuant to which defendant city had leased a building to defendant corporation, where the record disclosed that both the city and the corporation wanted the constitutionality of the act tested and cooperated for the accomplishment of that end, the suit was clearly for their benefit, and equity within the law would permit the assessment of all costs in all courts against these two defendants, notwithstanding that a decree in their favor was sustained on appeal. Holly v. Elizabethton, 193 Tenn. 46, 241 S.W.2d 1001, 1951 Tenn. LEXIS 331 (1951).

9. Removal of Case to Federal Court.

This section does not authorize a judgment for costs against the applicant, upon the removal of a cause from the state court to the federal court. Williams v. Adkins, 46 Tenn. 615, 1869 Tenn. LEXIS 107 (1869).

20-12-119. Discretion of judge.

  1. In all civil cases, whether tried by a jury or before the court without a jury, the presiding judge shall have a right to adjudge the cost.
  2. In doing so, the presiding judge shall be authorized, in the presiding judge's discretion, to apportion the cost between the litigants, as in the presiding judge's opinion the equities of the case demand.
    1. Notwithstanding subsection (a) or (b), in a civil proceeding, where a trial court grants a motion to dismiss pursuant to Rule 12 of the Tennessee Rules of Civil Procedure for failure to state a claim upon which relief may be granted, the court shall award the party or parties against whom the dismissed claims were pending at the time the successful motion to dismiss was granted the costs and reasonable and necessary attorney's fees incurred in the proceedings as a consequence of the dismissed claims by that party or parties. The awarded costs and fees shall be paid by the party or parties whose claim or claims were dismissed as a result of the granted motion to dismiss.
    2. Costs shall include all reasonable and necessary litigation costs actually incurred due to the proceedings that resulted from the filing of the dismissed claims, including, but not limited to:
      1. Court costs;
      2. Attorneys' fees;
      3. Court reporter fees;
      4. Interpreter fees; and
      5. Guardian ad litem fees.
    3. An award of costs pursuant to this subsection (c) shall be made only after all appeals of the issue of the granting of the motion to dismiss have been exhausted and if the final outcome is the granting of the motion to dismiss. The award of costs and attorneys' fees pursuant to this section shall be stayed until a final decision which is not subject to appeal is rendered.
    4. Notwithstanding any other provision of this section, the court shall not require a party to pay costs under this section in excess of a combined total of ten thousand dollars ($10,000) in any single lawsuit. Where multiple parties are entitled to recover their costs from a single party under this section and those parties’ combined actual costs under this section exceed ten thousand dollars ($10,000), then the court shall apportion the awarded costs to the moving parties in proportion to the amount of each moving party’s incurred costs unless agreed otherwise by the moving parties. Nothing in this section shall be construed to limit the award of costs as provided for in other sections of the code or at common law.
    5. This subsection (c) shall not apply to:
      1. Actions by or against the state, other governmental entities, or public officials acting in their official capacity or under color of law;
      2. Any claim that is dismissed by the granting of a motion to dismiss that was filed more than sixty (60) days after the moving party received service of the latest complaint, counter-complaint or cross-complaint in which that dismissed claim was made;
      3. Any claim that the party against whom the motion to dismiss was filed withdrew, or in good faith amended to state a claim upon which relief may be granted; however, this subdivision (c)(5)(C) shall not apply unless a pleading providing notice of the withdrawal or amendment was filed with the court and delivered to the opposing party or parties at least three (3) days before the date set for the hearing of the motion to dismiss or by the deadline for the filing of a response to the motion to dismiss, whichever is earlier. Nothing in this section shall be construed to prevent a party from striking its own motion to dismiss;
      4. Actions by pro se litigants, except where the court also finds that the pro se party acted unreasonably in bringing, or refusing to voluntarily withdraw, the dismissed claim;
      5. Any claim which is a good faith, non-frivolous claim filed for the express purpose of extending, modifying, or reversing existing precedent, law or regulation, or for the express purpose of establishing the meaning, lawfulness or constitutionality of a law, regulation or United States or Tennessee constitutional right where the meaning, lawfulness or constitutionality is a matter of first impression that has not been established by precedent in a published opinion by the Tennessee supreme court, court of appeals, court of criminal appeals, a United States district court in Tennessee, or by the United States supreme court. This subdivision (c)(5)(E) shall not apply unless at the time the successful motion to dismiss was filed the party that made the dismissed claim had specially pleaded in its latest complaint, counter-complaint or cross-complaint that the dismissed claim was made for one (1) of the express purposes listed above and cited the contrary precedent or interpretation the party seeks to distinguish or overcome, or whether the issue to be decided is a matter of first impression as described in this subdivision (c)(5)(E); or
      6. Any claim for which relief could be granted under a law, a court precedent published by a court described in subdivision (c)(5)(E), or a regulation, that was in effect and applicable to the claim at the time the motion to dismiss was filed; where that law, precedent or regulation was cited in the pleading in which the dismissed claim was made or in the response to the motion to dismiss; and where the motion to dismiss the claim was granted due to the subsequent repeal, amendment, overruling or distinguishing of that law, regulation or published court precedent.
    6. This section shall not be construed to limit the ability of any court to dismiss a claim or assess costs against a party whose claim has been dismissed, where permitted or required by other law, court rule or at common law.

Acts 1917, ch. 107, § 1; Shan., § 4962a1; Code 1932, § 9116; T.C.A. (orig. ed.), § 20-1621; Acts 2012, ch. 1046, § 1.

Compiler's Notes. Acts 2012, ch. 1046, § 2 provided that the act, which added subsection (c), shall apply to claims filed on and after July 1, 2012.

Amendments. The 2012 amendment added (c).

Effective Dates. Acts 2012, ch. 1046, § 2. July 1, 2012.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), §§ 242, 245, 248.

Tennessee Jurisprudence, 2 Tenn. Juris., Appeal and Error, § 254.

Law Reviews.

All Losers Should Pay in Tennessee: How to Amend T.C.A. Section 20-12-119 to Deter Meritless Claims, 44 U. Mem. L. Rev. 183 (2013).

Judicial Reform at the Lowest Level: A Model Statute for Small Claims Courts, Part III, 28 Vand. L. Rev. 747.

Cited: Long v. Wood, 194 Tenn. 511, 253 S.W.2d 731, 1952 Tenn. LEXIS 414 (1952); Hunt v. Hunt, 56 Tenn. App. 683, 412 S.W.2d 7, 1965 Tenn. App. LEXIS 235 (Tenn. Ct. App. 1965); Livingston v. Livingston, 58 Tenn. App. 271, 429 S.W.2d 452, 1967 Tenn. App. LEXIS 267 (Tenn. Ct. App. 1968); Vick v. Vick, 60 Tenn. App. 600, 449 S.W.2d 717, 1968 Tenn. App. LEXIS 289 (Tenn. Ct. App. 1968); State ex rel. Carpenter v. Cox, 61 Tenn. App. 101, 453 S.W.2d 69, 1969 Tenn. App. LEXIS 354 (Tenn. Ct. App. 1969); Shelby County v. Armour, 495 S.W.2d 816, 1971 Tenn. App. LEXIS 241 (Tenn. Ct. App. 1971); Rogers v. Russell, 733 S.W.2d 79, 1986 Tenn. App. LEXIS 3315 (Tenn. Ct. App. 1986); Carson Creek Vacation Resorts v. Department of Revenue, 865 S.W.2d 1, 1993 Tenn. LEXIS 370 (Tenn. 1993); Crew v. First Source Furniture Group, 259 S.W.3d 656, 2008 Tenn. LEXIS 418 (Tenn. June 24, 2008); Barrett v. Town of Nolensville, — S.W.3d —, 2011 Tenn. App. LEXIS 119 (Tenn. Ct. App. Mar. 10, 2011); In re Conservatorship of Paul Estil Lindsey, — S.W.3d —, 2011 Tenn. App. LEXIS 503 (Tenn. Ct. App. Sept. 16, 2011).

NOTES TO DECISIONS

1. Construction with Other Acts.

This statute is given effect in § 20-12-101. Woolfolk v. Woolfolk, 167 Tenn. 362, 69 S.W.2d 1089, 1933 Tenn. LEXIS 48 (1934).

It was not the legislative intent to curb the discretion afforded the trial court in awarding fees and costs under the provisions of this section and Tenn. R. Civ. P. 17.03 and 54.04 by the subsequent enactment of § 34-12-117. In re Webb, 675 S.W.2d 176, 1984 Tenn. App. LEXIS 2724 (Tenn. Ct. App. 1984).

T.C.A. § 20-12-118(c)(1) permits recovery of costs and reasonable attorney fees when one or more claims within a lawsuit are dismissed pursuant to Tenn. R. Civ. P. 12.02(6). McCord v. HCA Health Servs. of Tenn., — S.W.3d —, 2016 Tenn. App. LEXIS 724 (Tenn. Ct. App. Sept. 27, 2016), appeal denied, McCord v. HCA Health Servs. of Tenn., Inc., — S.W.3d —, 2017 Tenn. LEXIS 58 (Tenn. Jan. 19, 2017).

Subsection (c) is a narrow statute dealing only with an award of attorneys' fees following the grant of a motion to dismiss for failure to state a claim upon which relief can be granted, and the statute does not interfere with a party's ability to seek leave to amend its pleadings or nonmonetary sanctions; there is nothing inherent in the statute that infringes on the court's discretion to manage its docket. Tran v. Bui, — S.W.3d —, 2016 Tenn. App. LEXIS 879 (Tenn. Ct. App. Nov. 17, 2016).

There is no conflict between subsection (c) and Tenn. R. Civ. P. 15.01, 15.04, 11.03, and 12.04 because the statutory requirements do not impede the authority of a court to change its schedule in order to give a party additional time to amend its pleading when justice so requires, nor does this statute impair the court's discretion to determine questions of fact or law. Tran v. Bui, — S.W.3d —, 2016 Tenn. App. LEXIS 879 (Tenn. Ct. App. Nov. 17, 2016).

2. Cases to Which Rule Applicable.

This statute is applicable to all civil suits in courts of law. It applies to appeals, appeals in error, and writs of error from all the inferior courts. State ex rel. Wilson v. Bush, 141 Tenn. 229, 208 S.W. 607, 1918 Tenn. LEXIS 84 (1919).

3. Persons Not Chargeable.

Where the record discloses that one of the defendants could not be held liable for anything, it was error to tax such defendant with costs. Ellett v. Embury & Maury, 142 Tenn. 444, 217 S.W. 818, 1919 Tenn. LEXIS 71 (1919).

In explicitly drafting its cost bond “in accordance with” T.C.A. § 20-12-120, a surety limited its liability to “court costs and taxes” as defined that section, rather than the broader umbrella of litigation “costs” as defined in another statute; therefore, the cost bond, as drafted and filed in this case, did not commit the surety to liability for the court reporter's fee and attorney's fees. Snyder v. First Tenn. Bank, N.A., — S.W.3d —, 2016 Tenn. App. LEXIS 74 (Tenn. Ct. App. Feb. 3, 2016).

4. Discretion of Court.

A trial judge has broad discretion in the adjudication of costs, according to his view of the equities of the case. His action is reviewable only for manifest abuse. Lewis v. Koehn, 5 Tenn. App. 530, — S.W. —, 1927 Tenn. App. LEXIS 88 (Tenn. Ct. App. 1927); Conatser v. Reagan, 7 Tenn. App. 450, 1928 Tenn. App. LEXIS 64 (1928).

Costs of court are a discretionary matter for the court that tries the case to determine. Erin v. Brooks, 190 Tenn. 407, 230 S.W.2d 397, 1950 Tenn. LEXIS 500 (1950).

In ejectment proceedings wherein purchasers of land at bankrupt sale sought to establish fee simple interest in such land but failed, court in its discretion could tax fee of guardian ad litem who represented minor children of bankrupt as part of costs assessed against such purchasers under decree holding that such children had a contingent interest in the property. Butler v. Parker, 200 Tenn. 603, 293 S.W.2d 174, 1956 Tenn. LEXIS 445 (1956).

Where certiorari was brought to review action of city clerk in refusing to certify recall petition to election commissioners and thereafter party whose recall was sought intervened in proceedings it was within the power of the trial judge to adjudge the costs primarily against the intervening petitioner and secondarily against the defendant. Roberts v. Brown, 43 Tenn. App. 567, 310 S.W.2d 197, 1957 Tenn. App. LEXIS 137 (Tenn. Ct. App. 1957).

Although decisions regarding the taxing of costs were generally within the trial court's discretion, in a case that involved a divorce, the wife's position with respect to the alimony arrearage was totally vindicated by the special master's recommendation, while the husband's attempt to modify his alimony obligation was totally rejected by the special master; accordingly, the need for the special master and the cost of the transcript of that hearing were caused by the husband's failure to do that which he was obligated to do by virtue, and the trial court did not err in taxing these costs to the husband. Mercer v. Hadley, — S.W.3d —, 2007 Tenn. App. LEXIS 384 (Tenn. Ct. App. June 20, 2007).

Trial court's order requiring that future pro se complaints filed by a litigant be referred to a Special Master for a determination of whether prior court costs had been satisfied and for the filing of a written report recommending whether the complaint should be allowed to proceed or be dismissed was a valid exercise of the trial court's authority. In re Green, — S.W.3d —, 2011 Tenn. App. LEXIS 543 (Tenn. Ct. App. Oct. 4, 2011).

Trial court properly assessed costs against an opposing candidate because he was not the prevailing party on all issues at the trial court level; the trial court dismissed the county election commission and its commissioners from the election contest. Bivens v. White, — S.W.3d —, 2015 Tenn. App. LEXIS 738 (Tenn. Ct. App. Sept. 16, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 18 (Tenn. Jan. 14, 2016).

Subsection (c)(5)(C) requires a reasonable three day notice be given to the trial court and other parties in advance of a scheduled hearing, and this requirement does not impair a party's ability to take a voluntary nonsuit at any time prior to three days before a scheduled hearing or the court's discretion to determine questions of fact or law; the statute does not restrict the court's discretionary authority to continue or reschedule a hearing or extend a deadline upon a showing of just cause. Tran v. Bui, — S.W.3d —, 2016 Tenn. App. LEXIS 879 (Tenn. Ct. App. Nov. 17, 2016).

5. —Insurer Concedes Liability.

Where insurer conceded liability as insurer to such persons which court should determine were beneficiaries and court finally concluded following appeal that beneficiaries were widow of valid first marriage, legitimate child of first marriage, illegitimate child of widow of void second marriage, and child born of void second marriage following death of employee it was equitable that two thirds of the costs should be charged against benefits allowed children of second wife, and one third of the costs charged to first wife and her child. Winfield v. Cargill, Inc., 196 Tenn. 133, 264 S.W.2d 584, 1954 Tenn. LEXIS 352 (1954).

6. —Limitations Causing Dismissal.

Although an action for workers' compensation is dismissed, costs may be adjudged against the employer where the right is admitted except for the bar of the statutory limitation. Oman v. Delius, 162 Tenn. 192, 35 S.W.2d 570, 1930 Tenn. LEXIS 79 (1931).

7. —Executor's Failure to Submit Previous Will.

When an executor in two purported wills fails to produce both in a contest over the later one, he may be adjudged to pay all costs incurred in a contest over the earlier one not submitted. Bridges v. Agee, 167 Tenn. 324, 69 S.W.2d 891, 1933 Tenn. LEXIS 43 (1934).

8. —Condemnation Proceedings.

In a condemnation proceeding the property owners were properly adjudged to stand the cost of appeal, where the city, which was condemning the property for public use, presenting its appeal in the trial court in proper form, was erroneously denied the right to present rebuttal evidence as to the value of the property on trial de novo, and the case was reversed and remanded for a new trial by the supreme court. Erin v. Brooks, 190 Tenn. 407, 230 S.W.2d 397, 1950 Tenn. LEXIS 500 (1950).

9. —Discretionary Costs.

Although the parents of suspended students who filed a class action against a county education board for its breach of T.C.A. § 49-6-3402 were not successful on all of their claims, they achieved enough success that they were “prevailing parties” under the Civil Rights Attorney's Fees Awards Act, 42 U.S.C. § 1988 and Tenn. R. Civ. P. 54.04, and the trial court did not abuse its discretion in awarding them $45,000 in attorney fees and also taxing costs. C.S.C. v. Knox County Bd. of Educ., — S.W.3d —, 2007 Tenn. App. LEXIS 337 (Tenn. Ct. App. May 25, 2007).

Under the holding on appeal, the guardian ad litem was no longer the prevailing party and the award of discretionary costs against the insurer was reversed. Progressive Casualty Ins. Co. v. Chapin, 243 S.W.3d 553, 2007 Tenn. App. LEXIS 410 (Tenn. Ct. App. July 5, 2007).

Denial of the mother's argument that the trial court erred in ruling that each party would be responsible for his or her own attorney fees and in ordering the parties to split the costs equally was proper because the father was not held in contempt or required to pay the mother for the allegedly missing property. Jackson v. Jackson, — S.W.3d —, 2011 Tenn. App. LEXIS 157 (Tenn. Ct. App. Mar. 30, 2011), appeal denied, — S.W.3d —, 2011 Tenn. LEXIS 816 (Tenn. Aug. 24, 2011).

Trial court did not abuse its discretion by assessing costs against the employer, which was the prevailing party, becauseT.C.A. § 20-12-101 and Tenn. R. Civ. P. 54.04(1) permitted the trial court the discretion to tax the prevailing party; the employee was indigent and was self-represented, and the outcome of his case turned on his lack of knowledge of the applicable legal rules. Douglas v. Ledic Realty Serv., — S.W.3d —, 2012 Tenn. LEXIS 964 (Tenn. Dec. 6, 2012), review denied, — S.W.3d —, 2013 Tenn. LEXIS 131 (Tenn. Feb. 13, 2013).

10. —Will Contest.

See notes under heading “Particular Actions Recoverable — Will Contest,” § 20-12-101, Notes to Decisions, Curry v. Bridges, 45 Tenn. App. 395, 325 S.W.2d 87, 1959 Tenn. App. LEXIS 77 (Tenn. Ct. App. 1959).

Where the judge has reason to believe that the proponent of a codicil was guilty of fraud and undue influence in the execution of the codicil, it is not an abuse of discretion to assess costs against the proponent. Hager v. Hager, 17 Tenn. App. 143, 66 S.W.2d 250, 1933 Tenn. App. LEXIS 51 (Tenn. Ct. App. 1933).

Costs of will contest could be assessed against estate even though contest failed where testator had committed suicide within two months after execution of will and where contest could conceivably result in some advantage to executors and trustees particularly in administration of trust which would not terminate for 15 years. Curry v. Bridges, 45 Tenn. App. 395, 325 S.W.2d 87, 1959 Tenn. App. LEXIS 77 (Tenn. Ct. App. 1959).

On appeal in will contest where plaintiff-in-error rendered service to the estate by obtaining evidence from which jury could more intelligently reach a decision as to the true last will and testament of decedent, costs would be divided between plaintiff-in-error and defendant-in-error even though decision of lower court was affirmed. Donnelly v. Hendrix, 49 Tenn. App. 361, 355 S.W.2d 116, 1960 Tenn. App. LEXIS 136 (Tenn. Ct. App. 1960).

Where the language of the will reasonably required litigation for the mutual benefit of all beneficiaries, it was proper to apportion cost among all those party to the action. Harris v. Bittikofer, 562 S.W.2d 815, 1978 Tenn. LEXIS 593 (Tenn. 1978).

11. —Proceedings to Remove Comatose Patient from Respirator.

Where plaintiffs brought a successful action for a declaratory judgment granting them the authority to order that a comatose patient be removed from a life-sustaining respirator, and where patient's physician was joined as a necessary defendant, the court held that the equities of the case required that all costs, including the guardian ad litem's fee, be paid by the plaintiffs who initiated the action, rather than by the physician. Dockery v. Dockery, 559 S.W.2d 952, 1977 Tenn. App. LEXIS 309 (Tenn. Ct. App. 1977).

12. —Fees.

This section authorizes the apportionment of guardian ad litem fees between the litigants as the equities of the case demand. Harris v. Bittikofer, 562 S.W.2d 815, 1978 Tenn. LEXIS 593 (Tenn. 1978).

Compensation for legal services rendered by solicitors and guardians ad litem must not be out of proportion to the value of the property involved in the litigation and it is intolerable to allow the property that is subject to litigation to be devoured by fees. Harris v. Bittikofer, 562 S.W.2d 815, 1978 Tenn. LEXIS 593 (Tenn. 1978).

A fee award as special master is a fee within the discretion of the trial judge authorized by this section. In re Robby's Pancake House, Inc., 24 B.R. 989, 1982 Bankr. LEXIS 3000 (Bankr. E.D. Tenn. 1982).

The trial court did not abuse its discretion in commuting the widow's benefits, but erred in commuting the surviving children's benefits to a lump sum and in assessing the guardian ad litem's fees against the children's award. Perdue v. Green Branch Mining Co., 837 S.W.2d 56, 1992 Tenn. LEXIS 489 (Tenn. 1992).

There is no bright line rule which limits discretionary costs for expert witnesses to those fees incurred from actual testimony. Stalsworth v. Grummons, 36 S.W.3d 832, 2000 Tenn. App. LEXIS 279 (Tenn. Ct. App. 2000).

Since the court of appeals reversed the trial court's decision to grant a former wife's motion to dismiss, subsection (c)(1) no longer could serve as a basis for an award of attorney's fees. Karsonovich v. Kempe, — S.W.3d —, 2018 Tenn. App. LEXIS 104 (Tenn. Ct. App. Feb. 27, 2018).

Although T.C.A. § 36-5-103(c) provided a basis for an award of attorney's fees in actions to enforce alimony, the trial court improperly awarded attorney's fees based on T.C.A. § 20-12-119(c)(1). Karsonovich v. Kempe, — S.W.3d —, 2018 Tenn. App. LEXIS 104 (Tenn. Ct. App. Feb. 27, 2018).

13. —Declaratory Judgment.

In action under declaratory judgment law, where complainants are entitled to no more relief than a declaration of their rights and status for their own protection, the costs should be paid by the complainants. Erwin Billiard Parlor v. Buckner, 156 Tenn. 278, 300 S.W. 565, 1927 Tenn. LEXIS 114 (1927).

14. Apportionment in Various Courts.

While the plaintiff was successful in the justice court, circuit court, and court of appeals, and the defendant in the supreme court secured a reduction to the amount of liability admitted, the defendant should pay the justice court costs, and the plaintiff the costs of the circuit court, of the court of appeals, and the supreme court, although the question of legal tender by the defendant before the justice was doubtful. Southern R. Co. v. Williams, 141 Tenn. 46, 206 S.W. 186, 1918 Tenn. LEXIS 66 (1918).

15. Appeal.

16. —Review of Discretion Below.

Since the taxation of costs is discretionary now with the lower courts in all civil cases, the supreme court will not review their action nor entertain appeal for that purpose alone, except under very extraordinary circumstances. State ex rel. Wilson v. Bush, 141 Tenn. 229, 208 S.W. 607, 1918 Tenn. LEXIS 84 (1919).

Taxation of costs is discretionary with the lower courts and the supreme court is unable to review their action except in very extraordinary circumstances where there is a manifest abuse of discretion. Lewis v. Bowers, 216 Tenn. 414, 392 S.W.2d 819, 1965 Tenn. LEXIS 587 (1965).

Mere fact that action was brought on pauper's oath did not render circumstances so extraordinary as to permit supreme court to review action of chancellor in assessing costs against complainant. Lewis v. Bowers, 216 Tenn. 414, 392 S.W.2d 819, 1965 Tenn. LEXIS 587 (1965).

In an inmate's challenge to the parole board's denial of parole, because the board was the prevailing party and no extraordinary circumstances warranting review appeared in the record, the trial court did not abuse its discretion in assessing court costs against the inmate. Meeks v. Tenn. Bd. of Prob. & Parole, — S.W.3d —, 2008 Tenn. App. LEXIS 167 (Tenn. Ct. App. Mar. 24, 2008), rehearing denied, — S.W.3d —, 2008 Tenn. App. LEXIS 245 (Tenn. Ct. App. Apr. 21, 2008).

In a case in which the trial court dismissed two of a surgeon's causes of action against a hospital for failure to state a claim for relief, the appellate court concluded that the trial court did not err in awarding the hospital $10,000 in fees and costs pursuant to T.C.A. § 20-12-119. Counsel's affidavit was sufficiently detailed as to both the work performed and the time spent on the tasks listed. McCord v. HCA Health Servs. of Tenn., — S.W.3d —, 2016 Tenn. App. LEXIS 724 (Tenn. Ct. App. Sept. 27, 2016), appeal denied, McCord v. HCA Health Servs. of Tenn., Inc., — S.W.3d —, 2017 Tenn. LEXIS 58 (Tenn. Jan. 19, 2017).

17. —Costs on Appeal.

Where an appeal from a decree of the chancellor, entered on his own motion, was necessary for the complainant's benefit, but was not made necessary by the defendant's conduct, he could not be charged with appeal costs which must necessarily be paid by the appellant. Davis v. Andregg, 149 Tenn. 245, 259 S.W. 547, 1923 Tenn. LEXIS 97 (1924).

Property owner was liable for costs on successful appeal by city based on error of circuit court in refusing to allow city to introduce evidence in value on rebuttal after failing to do so in opening its case. Erin v. Brooks, 190 Tenn. 407, 230 S.W.2d 397, 1950 Tenn. LEXIS 500 (1950).

Where suit for construction of will by grandchild was beneficial to grandmother since chancery court held in her favor the costs of appeal by grandchild to supreme court who affirmed was taxed to grandmother. Long v. Wood, 194 Tenn. 511, 253 S.W.2d 731, 1952 Tenn. LEXIS 414 (1952).

Because there was an absence of findings about a chef's status under T.C.A. § 29-20-113(a), and due to the dictates of T.C.A. § 20-12-119(c)(3), the matter was remanded to the trial court for a determination of the amount of attorney's fees, if any, to be awarded the chef. Loftis v. Rayburn, — S.W.3d —, 2018 Tenn. App. LEXIS 201 (Tenn. Ct. App. Apr. 20, 2018).

18. Requirements.

Award to the party or parties against whom the dismissed claims were pending, the items to be included in that award, and the manner in which the award is to be granted are fundamental to the award of litigation costs set forth in this statute. The implementation of “shall” in the statute therefore dictates that a court construe such requirements as mandatory. Snyder v. First Tenn. Bank, N.A., — S.W.3d —, 2016 Tenn. App. LEXIS 74 (Tenn. Ct. App. Feb. 3, 2016).

When customers sued a bank after the customers'  prior suit was dismissed with prejudice, the bank was not entitled to fees and costs under T.C.A. § 20-12-119(c) because the bank's motion to dismiss the subsequent suit was properly not treated as a motion to dismiss, since matters outside the pleadings were considered, causing the motion to be properly treated as a motion for summary judgment. Craig v. Peoples Cmty. Bank, — S.W.3d —, 2016 Tenn. App. LEXIS 1005 (Tenn. Ct. App. Dec. 30, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 303 (Tenn. May 28, 2017).

19. Definition of Costs.

Plain language of this statute creates a distinction between “court costs” and “attorney's fees,” both of which are specifically included within the statutory definition of litigation “costs” for purposes of defining all reasonable and necessary litigation costs actually incurred due to the proceedings that resulted from the filing of the dismissed claims. Snyder v. First Tenn. Bank, N.A., — S.W.3d —, 2016 Tenn. App. LEXIS 74 (Tenn. Ct. App. Feb. 3, 2016).

20. Constitutionality.

Plaintiffs claimed that the statute was unconstitutional, but this was not raised at the trial level and plaintiffs failed to properly notify the Attorney General because proof of service was not filed with the brief as required, such that the matter was waived; the statute is not obviously unconstitutional on its face in any event. Schodowski v. Tellico Vill. Prop. Owners Ass'n, — S.W.3d —, 2016 Tenn. App. LEXIS 275 (Tenn. Ct. App. Apr. 22, 2016).

Subsection (c) is remedial and does not violate the separation of powers doctrine because it does not impede the fact finding process of the trial court or undermine its discretion; by the time the statute comes into play, the trial court has already determined based on the facts that a case should be dismissed based on the failure to state a claim. Tran v. Bui, — S.W.3d —, 2016 Tenn. App. LEXIS 879 (Tenn. Ct. App. Nov. 17, 2016).

General Assembly has expressly granted courts the discretion to determine whether the pro se party acted unreasonably in bringing, or refusing to voluntarily withdraw, the dismissed claim, and this does not lessen the burden pro se litigants must carry as they are still held to the same procedural and substantive standards to which lawyers must adhere; accordingly, the statute does not create a different standard for pro se litigants and does not violate the separation of powers doctrine. Tran v. Bui, — S.W.3d —, 2016 Tenn. App. LEXIS 879 (Tenn. Ct. App. Nov. 17, 2016).

21. Attorney's Fees Precluded.

Award of attorney's fees in favor of an industrial development corporation was precluded under subsection (c)(5)(A) because reading the Governmental Tort Liability Act and other statutory definitions of governmental entity in pari materia with the exclusionary language contained in subsection (c)(5)(A), the corporation was a government entity. Burks v. Savannah Indus. Dev. Corp., — S.W.3d —, 2018 Tenn. App. LEXIS 621 (Tenn. Ct. App. Oct. 24, 2018).

Mother and minor child were seeking to dismiss the father's petition for a lack of subject matter jurisdiction, in the case of the appeal in the nature of a writ of error, and for lack of personal jurisdiction, in the case of the petition to enroll a foreign judgment; they were not seeking to dismiss the petition for failure to state a claim upon which relief may be granted, and thus the statute was not an appropriate basis for awarding attorney fees. New v. Dumitrache, — S.W.3d —, 2019 Tenn. App. LEXIS 174 (Tenn. Ct. App. Apr. 12, 2019).

Collateral References. 20 Am. Jur. 2d Costs §§ 10-12, 94.

20 C.J.S. Costs § 13.

Allowance of fees for guardian ad litem appointed for infant defendant, as costs taxable against decedent's estate. 30 A.L.R.2d 1148.

Apportionment of costs in litigation by beneficiary respecting trust. 9 A.L.R.2d 1132.

Apportionment of cost where judgment is against plaintiff on his complaint and against defendant on his counterclaim. 75 A.L.R. 1400.

Who is the “successful party” or “prevailing party” for purposes of awarding costs where both parties prevail on affirmative claims. 66 A.L.R.3d 1115.

Costs 11-15, 42(a).

20-12-120. Security given by plaintiff.

No leading process shall issue from any court without security being given by the party at whose instance the action is brought for the successful prosecution of the party's action, and, in case of failure, for the payment of court costs and taxes that may be awarded against the party, unless in cases and instances specially excepted.

Code 1858, § 3187 (deriv. Acts 1787, ch. 19, § 1); Shan., § 4923; mod. Code 1932, § 9075; T.C.A. (orig. ed.), § 20-1622; Acts 1994, ch. 967, § 1; 1999, ch. 191, § 1.

Cross-References. Bond given by plaintiff, § 20-2-102.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 123.

Tennessee Forms (Robinson, Ramsey and Harwell), Nos. 1-4-2, 1-4-3.

Tennessee Jurisprudence, 2 Tenn. Juris., Appeal and Error, § 81; 10 Tenn. Juris., Ejectment, § 29.

Law Reviews.

Recent Developments — Domestic Relations — Divorce — Due Process for Indigent Plaintiffs, 47 Tenn. L. Rev. 845.

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); McCalla v. Nelson, 44 Tenn. App. 164, 313 S.W.2d 462, 1956 Tenn. App. LEXIS 172 (Tenn. Ct. App. 1956); Brotherton v. Solomon, 307 F. Supp. 1325, 1970 U.S. Dist. LEXIS 13258 (E.D. Tenn. 1970); A'La v. Tennessee Dep't of Correction, 914 S.W.2d 914, 1995 Tenn. App. LEXIS 596 (Tenn. Ct. App. 1995); Jacob v. Partee, 389 S.W.3d 339, 2012 Tenn. App. LEXIS 555 (Tenn. Ct. App. Aug. 10, 2012).

NOTES TO DECISIONS

1. Construction with Other Acts.

2. —Libel.

Under § 20-12-127, “slanderous words” are comprehensive enough to embrace written defamation, and an action for libel may not be brought or an appeal taken on pauper's oath, but security for costs must be given. Eden v. Celsor, 172 Tenn. 598, 113 S.W.2d 745, 1937 Tenn. LEXIS 103 (1938).

3. —Scope of Bond.

Under § 20-12-126, a variance between the terms of a prosecution bond, in an equity case, as executed, and the terms of this section, is not material. Woolfolk v. Woolfolk, 167 Tenn. 362, 69 S.W.2d 1089, 1933 Tenn. LEXIS 48 (1934).

4. Construction.

Trial court's order requiring that future pro se complaints filed by a litigant be referred to a Special Master for a determination of whether prior court costs had been satisfied and for the filing of a written report recommending whether the complaint should be allowed to proceed or be dismissed was a valid exercise of the trial court's authority. In re Green, — S.W.3d —, 2011 Tenn. App. LEXIS 543 (Tenn. Ct. App. Oct. 4, 2011).

5. —Strict Construction.

This section contravenes the common law and is not to be extended by construction. Kennedy v. Jack, 9 Tenn. 82, 1824 Tenn. LEXIS 3 (1824).

6. —Surety Liability.

Surety on bond for prosecution of suit at law is not liable for costs beyond the court in which the suit is instituted. Dawson v. Holt, 80 Tenn. 27, 1883 Tenn. LEXIS 135 (1883); Sullivan v. Tigert, 1 Tenn. App. 262, — S.W. —, 1925 Tenn. App. LEXIS 41 (Tenn. Ct. App. 1925).

Where complainant was the successful party, obtaining decree against defendant for costs, and upon issuance of execution against defendant it was returned nulla bona, the surety on prosecution bond is not liable on motion by clerk and master in an equity case for costs accrued at complainant's instance. The terms of the bond are met, as to surety, when the court decreed in favor of complainant and awarded no costs against complainant. Woolfolk v. Woolfolk, 167 Tenn. 362, 69 S.W.2d 1089, 1933 Tenn. LEXIS 48 (1934).

The statute was always construed to mean that the surety was not liable for costs beyond the judgment of the court in which the suit was instituted. And therefore if the suit was successfully prosecuted to judgment in that court the liability of the surety ceased. So strictly was the liability of the surety construed, that if the suit was eventually prosecuted with success, the surety was not liable for the costs of a nonsuit suffered by his principal in the progress of the cause. Coker v. Armco Drainage & Metal Products Co., 192 Tenn. 10, 236 S.W.2d 980, 1951 Tenn. LEXIS 375 (1951).

The surety's liability on the prosecution bond is limited to costs adjudged against his principal by the court in which the suit was instituted. When the probate judge adjudged the costs against the opposite party, not his principal, the surety was discharged. Coker v. Armco Drainage & Metal Products Co., 192 Tenn. 10, 236 S.W.2d 980, 1951 Tenn. LEXIS 375 (1951).

7. —Next Friend Suit.

A person suing as next friend of a minor is required to secure costs before filing suit. Green v. Harrison, 35 Tenn. 131, 1855 Tenn. LEXIS 29 (1855).

8. Municipalities — Cost Bonds By.

Municipal corporations must give bonds for costs, and they cannot be exempted therefrom by a statute not exempting individuals. Memphis v. Fisher, 68 Tenn. 239, 1877 Tenn. LEXIS 29 (1877).

9. Omissions Not Invalidating Bond or Recognizance.

Prosecution bond is good without stating the nature of the action, where otherwise in proper form and properly conditioned. Broyles v. Blair, 15 Tenn. 278, 15 Tenn. 279, 1834 Tenn. LEXIS 41 (1834); Chanie v. Bull, 16 Tenn. 219, 1835 Tenn. LEXIS 81 (1835).

Recognizance or cost bond is good without naming the payee, if the parties to the suit are named, and the surety agrees to the defendant's security for costs, for this certainly means that the bond or recognizance is security for the adverse party. Parks v. Allen, 39 Tenn. 523, 1859 Tenn. LEXIS 267 (1859).

A recognizance not binding to “prosecute the suit with effect,” nor in terms made payable “to the opposite party,” is good, for these omissions may be supplied by intendment of law. Kincaid v. Sharp, 40 Tenn. 151, 1859 Tenn. LEXIS 39 (1859).

Omissions of penalty do not invalidate the recognizance, where the undertaking of the surety is that his principal shall pay and satisfy whatever judgment the court may render in the case, for this is a substantial compliance with the law. Kincaid v. Sharp, 40 Tenn. 151, 1859 Tenn. LEXIS 39 (1859).

10. —Recognizance in Penalty Larger than Prescribed by Law.

Recognizance in larger penalty than that prescribed by law is not thereby invalidated, as a bond for a larger sum than that required in a will contest is valid. Parks v. Allen, 39 Tenn. 523, 1859 Tenn. LEXIS 267 (1859).

11. —Recognizance as Substitute for Bond.

A recognizance acknowledged in open court, and entered of record, may well be substituted for a prosecution bond, for an undertaking by recognizance for costs is as good and binding as if by bond, because a recognizance is an obligation of record, entered into before the court, and is, for all practical purposes, of equal validity and effect as a formal bond. Parks v. Allen, 39 Tenn. 523, 1859 Tenn. LEXIS 267 (1859); Kincaid v. Sharp, 40 Tenn. 151, 1859 Tenn. LEXIS 39 (1859).

12. Bond Lost.

Plaintiff, who had previously given bond, was not required to give new bond where bond had been lost by clerk. Jones v. Kearns, 8 Tenn. 241, 8 Tenn. 242, 1827 Tenn. LEXIS 42 (1827).

13. Surety Liability.

Surety on plaintiff's bond in trial court where plaintiff won was not liable for costs of defendant on successful appeal. Hawkins v. Thornton, 9 Tenn. 146, 1829 Tenn. LEXIS 28 (1829).

In explicitly drafting its cost bond “in accordance with” T.C.A. § 20-12-120, a surety limited its liability to “court costs and taxes” as defined in that section, rather than the broader umbrella of litigation “costs” as defined in another statute; therefore, the cost bond, as drafted and filed in this case, did not commit the surety to liability for the court reporter's fee and attorney's fees. Snyder v. First Tenn. Bank, N.A., — S.W.3d —, 2016 Tenn. App. LEXIS 74 (Tenn. Ct. App. Feb. 3, 2016).

Collateral References. 20 Am. Jur. 2d Costs §§ 37-46, 50.

20 C.J.S. Costs § 127.

Assignment of judgment as carrying rights of assignor as to cost bond. 63 A.L.R. 292.

Constitutionality, construction, and application of statutes requiring security for costs or expenses in case of stockholder's action in right of corporation. 159 A.L.R. 978.

Election contest or recount, security for costs or reimbursement for expenses incident to. 106 A.L.R. 936.

Habeas corpus, security for costs in. 81 A.L.R. 154.

Interlocutory order of one judge concerning security for costs as binding on another judge in same case. 132 A.L.R. 72.

Leave of court as prerequisite to action on bond for costs. Bowlin v. Citizens' Bank & Trust Co., 131 Ark. 97, 198 S.W. 288, 1917 Ark. LEXIS 116, 2 A.L.R. 575 (Ark. 1917).

Nonresident's duty to furnish security for costs as affected by joinder or addition of resident. 158 A.L.R. 737.

Statute regarding security for costs as mandatory or permitting exercise of discretion. 84 A.L.R. 252.

Taxable costs and disbursements as including expenses for bonds incident to steps taken in action. 90 A.L.R.2d 448.

Waiver of statute or court rule requiring nonresident plaintiff to give security for costs. 8 A.L.R. 1510.

What is an action within statute requiring security for costs. 131 A.L.R. 1476.

Costs 118.

20-12-121. Failure to take security.

Any clerk who neglects to take the security required by § 20-12-120 is liable on the clerk's official bond to all persons aggrieved by the neglect.

Code 1858, § 3188 (deriv. Acts 1787, ch. 19, § 3); Shan., § 4924; Code 1932, § 9076; T.C.A. (orig. ed.), § 20-1623.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 123.

Cited: McCalla v. Nelson, 44 Tenn. App. 164, 313 S.W.2d 462, 1956 Tenn. App. LEXIS 172 (Tenn. Ct. App. 1956).

NOTES TO DECISIONS

1. Failure to Take Proper Bond — Liability of Clerk.

The clerk is not liable for defective appeal bond taken in the presence of the court and parties, or in the presumed presence of the court. McAlister's Adm'rs v. Scrice, 15 Tenn. 276, 15 Tenn. 277, 1834 Tenn. LEXIS 40 (1834).

The clerk is liable to the persons aggrieved by his failure to take proper prosecution bond; and he may be sued without suing the sureties, and before suit against any third person to ascertain the damages sustained. Pass v. Dibrell, 16 Tenn. 470, 1835 Tenn. LEXIS 110 (1835); Parker's Heirs v. Irby, 68 Tenn. 221, 1877 Tenn. LEXIS 23 (1877).

2. Petition Against Clerk in Pending Suit.

Parties entitled to a fund in the hands of the clerk and master may, without giving security for costs, file a petition against him, or if he be dead, against his personal representative and the sureties on his official bond, praying process and appropriate relief. Ex parte Yowell, 54 Tenn. 561, 1872 Tenn. LEXIS 85 (1872).

3. Appellate Jurisdiction of Original Application.

It is not within the appellate jurisdiction to make rules upon parties to justify or give new security on process sued out in the court below, for this section only applies to the inferior courts in such cases. This is true where no action of the court below was evoked, but if such action was properly invoked, and improperly refused, the supreme court will revise the error. Stewart v. Wilcox, 69 Tenn. 81, 1878 Tenn. LEXIS 47 (1878).

20-12-122. Actions commenced by petition or motion.

In any action commenced by petition or motion, the plaintiff may be required to give security.

Code 1858, § 3189 (deriv. Acts 1826, ch. 29, § 1); Shan., § 4925; Code 1932, § 9077; T.C.A. (orig. ed.), § 20-1624.

Cited: Brotherton v. Solomon, 307 F. Supp. 1325, 1970 U.S. Dist. LEXIS 13258 (E.D. Tenn. 1970); A'La v. Tennessee Dep't of Correction, 914 S.W.2d 914, 1995 Tenn. App. LEXIS 596 (Tenn. Ct. App. 1995).

NOTES TO DECISIONS

1. Division of Costs.

In proceeding to impose mechanic's and furnisher's lien upon building and lot and to sell such property to satisfy such lien, chancellor did not abuse his discretion in apportioning costs one-third to the original claimant, one-third to other claimants brought in under cross bill in nature of a general lienholder's bill and one-third to property owners. Bain-Nicodemus, Inc. v. Bethay, 40 Tenn. App. 487, 292 S.W.2d 234, 1953 Tenn. App. LEXIS 128 (Tenn. Ct. App. 1953).

Collateral References. 20 Am. Jur. 2d Costs §§ 38, 39, 50.

20 C.J.S. Costs § 136.

Costs 153.

20-12-123. Appeals from general sessions court.

The plaintiff in an action commenced before a judge of the court of general sessions, shall, on motion, be ruled to give security or further security in the circuit court, to which the cause may be taken for the correction of errors.

Code 1858, § 3190 (deriv. Acts 1813, ch. 131, § 2); Shan., § 4926; mod. Code 1932, § 9078; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 20-1625.

Collateral References. 20 C.J.S. Costs §§ 134, 401.

Costs 228, 231(3).

20-12-124. Rule to give security.

Any person required by law to give security for costs may, at any stage of the cause, be ruled to give such security, if it has not previously been done, or to justify or give new or additional security on sufficient cause shown.

Code 1858, § 3191 (deriv. Acts 1829, ch. 33, § 2); Shan., § 4927; mod. Code 1932, § 9079; T.C.A. (orig. ed.), § 20-1626.

Cross-References. Clerk's fee, § 8-21-401.

Textbooks. Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, § 7.

Law Reviews.

The Pauper's Oath in Appeals From General Sessions Court (Robert A. Lanier), 19 No. 2 Tenn. B.J. 17 (1983).

Cited: Brotherton v. Solomon, 307 F. Supp. 1325, 1970 U.S. Dist. LEXIS 13258 (E.D. Tenn. 1970).

NOTES TO DECISIONS

1. “At Any Stage” — Phrase Construed.

Rule “at any stage of the cause” manifestly means at any time before the judgment in the court below. Stewart v. Wilcox, 69 Tenn. 81, 1878 Tenn. LEXIS 47 (1878); Tennessee Cent. Ry. v. Vance, 3 Tenn. App. 152, 1926 Tenn. App. LEXIS 81 (1926).

2. Failure to Comply with Rule.

The rule is in force only for the time limited, and on failure to comply, judgment of dismissal may be rendered at the term when the rule was to be complied with, but not afterwards. Irvins v. Mathis, 30 Tenn. 603, 1850 Tenn. LEXIS 166 (1850).

Though the rule is made imperative that the suit shall stand dismissed unless the additional bond is made by a day certain, still there must be a judgment of the court actually dismissing the suit for such failure, after the failure has occurred, and during the term of the court. Irvins v. Mathis, 30 Tenn. 603, 1850 Tenn. LEXIS 166 (1850).

3. Justification of Present Sureties.

While the usual form in such rule is to allow the party to justify his present sureties or give new sureties, the order or rule may be made in either form, under this section; and if the rule be to give new surety, the party cannot object that it does not allow him to justify his present sureties, unless he offers to do so. Creamer v. Ford, 48 Tenn. 307, 1870 Tenn. LEXIS 53 (1870).

4. Tender During Term.

It is error to refuse the security if tendered at the same term, although after the time limited, but before the final judgment of the court ordering the suit to be dismissed. Irvins v. Mathis, 30 Tenn. 603, 1850 Tenn. LEXIS 166 (1850); Sharp v. Miller, 35 Tenn. 42, 1855 Tenn. LEXIS 9 (1855).

5. Rule After Remand and Taking of Account.

The motion for a rule comes too late in a case where the bill was filed for a partnership account, after a final decree was rendered which was affirmed with modification by the supreme court, and the account retaken after the remand. Paul v. Hill, 3 Cooper's Tenn. Ch. 342 (1877).

6. Extension or Continuance of Rule.

The rule to justify or give other security may be extended by the court during the term at which the compliance was required. Irvins v. Mathis, 30 Tenn. 603, 1850 Tenn. LEXIS 166 (1850); Smith v. Roby, 53 Tenn. 546, 1871 Tenn. LEXIS 393 (1871) (the rule may be continued by the court).

7. Second Rule — Grounds.

After the plaintiff has once, under a rule, given bond with six sureties, it is error to make a second rule upon the plaintiff to justify or give other security, upon the ground merely that two of the former sureties were insolvent, when from the silence of the affidavit, it was impliedly conceded that the remaining four sureties were solvent and sufficient. Irvins v. Mathis, 30 Tenn. 603, 1850 Tenn. LEXIS 166 (1850).

After the circuit judge has once required the plaintiff to increase the penalty of his bond and to give new sureties, and has accepted such bond with such sureties, the judge cannot be required to entertain another motion for a rule of the plaintiff to again increase the penalty of the bond and to give additional sureties, upon affidavit stating no new facts or changed circumstances. Greer v. Whitfield, 72 Tenn. 85, 1879 Tenn. LEXIS 8 (1879).

Collateral References. 20 Am. Jur. 2d Costs § 45.

20 C.J.S. Costs §§ 125, 158.

Costs 134.

20-12-125. Terms of bond.

In all cases of bonds, for the prosecution of original suits, or where security is taken or recorded in any court, sufficient security shall be taken by the clerk to pay all costs that may be at any time adjudged against the principal, in the event they are not paid by the principal. Notwithstanding any other law to the contrary, where an attorney undertakes to serve as surety after July 1, 1999, such surety shall only be obligated for amounts required by law or included in the clerk's bill of costs, and shall not be responsible for discretionary costs. In such instances, the clerk may require an additional surety other than the attorney as may be necessary to secure payment for discretionary costs.

Acts 1859-1860, ch. 120, § 1; Shan., § 4935; Code 1932, § 9088; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 20-1627; Acts 1981, ch. 449, § 2; 1999, ch. 207, § 1.

Compiler's Notes. This section may be affected by Tenn. R. Civ. P. 62.05, and T.R.A.P. 6.

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

Law Reviews.

The Pauper's Oath in Appeals From General Sessions Court (Robert A. Lanier), 19 No. 2 Tenn. B.J. 17 (1983).

NOTES TO DECISIONS

1. Prosecution Surety — Extent of Liability.

Plaintiff's successful prosecution of his suit at law to judgment discharges the undertaking of the surety on his prosecution bond. Carren v. Breed, 42 Tenn. 465, 1865 Tenn. LEXIS 88 (1865); Dawson v. Holt, 80 Tenn. 27, 1883 Tenn. LEXIS 135 (1883), overruling Clerk's Motions for Judgments for Costs, 59 Tenn. 152, 1873 Tenn. LEXIS 39 (1873).

Whenever, in the progress of the particular cause, costs are adjudged against the principal, the judgment shall also be against the surety. But the statute does not amend § 20-12-137, which contemplates a new proceeding, and, therefore, does not make the surety of the successful party liable for the costs of his principal. Deaton v. Mulvaney, 69 Tenn. 73, 1878 Tenn. LEXIS 44 (1878); Dawson v. Holt, 80 Tenn. 27, 1883 Tenn. LEXIS 135 (1883).

The surety on the prosecution bond of a plaintiff successful in the circuit court is not liable for costs of appeal, upon reversal of the case by the supreme court, but he is liable for the costs of the circuit court, for which the supreme court may render judgment. Dawson v. Holt, 80 Tenn. 27, 1883 Tenn. LEXIS 135 (1883).

A surety on the prosecution bond engages only to pay costs adjudged against the complainant. He does not engage to pay complainant's costs adjudged against the defendant which those entitled to costs cannot make out the defendant. Woolfolk v. Woolfolk, 167 Tenn. 362, 69 S.W.2d 1089, 1933 Tenn. LEXIS 48 (1934).

Where after appeal to circuit court from general sessions court on pauper's oath, defendant brought action by cross summons and filed cost bond for successful prosecution of the action, surety was not liable on cost bond for amount of judgment rendered against defendant in original action. McCalla v. Nelson, 44 Tenn. App. 164, 313 S.W.2d 462, 1956 Tenn. App. LEXIS 172 (Tenn. Ct. App. 1956).

While the rule of stricti juri prevents the court from extending the liability of a surety beyond any express limitations in his obligation, the rule should not be used to refine away plain terms. Major v. General Motors Corp., 742 F. Supp. 1355, 1990 U.S. Dist. LEXIS 11062 (M.D. Tenn. 1990).

2. Successful Complainant in Chancery.

The costs in chancery may be adjudged against the successful party and his surety, in the sound discretion of the chancellor, and the surety for costs undertakes with reference to this discretionary power of the chancellor and subject to its exercise. Glaze v. Eason & Blair, 10 Tenn. 301, 1829 Tenn. LEXIS 14 (1829); Wray v. Williams, 10 Tenn. 302, 1829 Tenn. LEXIS 15 (1829); Allison v. Stephens, 39 Tenn. 251, 1858 Tenn. LEXIS 288 (Tenn. Dec. 1858); Carren v. Breed, 42 Tenn. 465, 1865 Tenn. LEXIS 88 (1865); State v. Lewis, 78 Tenn. 168, 1882 Tenn. LEXIS 159 (1882).

The prosecution surety in a chancery suit may be held liable, upon appeal, for all the costs of the cause, although the case was successfully prosecuted to decree in favor of complainant in the chancery and supreme courts, and although the liability of the surety was expressly limited by the bond to the costs of the chancery court, for, the law in § 20-12-126 is a part of the contract in the bond for costs. Ogg v. Leinart, 48 Tenn. 40, 1870 Tenn. LEXIS 12 (1870).

3. Amendment of Bill — Effect.

The surety for costs on the original bill is liable to the extent of the penalty of his bond for costs which accrue on an amended bill filed in the same cause, and such surety is not released by the fact that the court, upon motion, ordered the complainant to execute a new bond with other sureties, which he failed to do, and he afterward took the pauper oath. Lovelace v. Smith, 67 Tenn. 263, 1874 Tenn. LEXIS 368 (1874).

4. Attorney's Fee in Creditor's Suit.

Attorney having recovered a fee on creditor's suit against defendants, sought judgment therefor on appeal against surety on appeal bond which covered only debt, interest, and costs involved in the appeal; court was without authority to render such judgment. Hyder v. Hyder, 16 Tenn. App. 64, 66 S.W.2d 235, 1932 Tenn. App. LEXIS 39 (Tenn. Ct. App. 1932).

5. Bankruptcy of Principal.

Where the liability of the surety on an appeal bond is not fixed prior to the discharge in bankruptcy of the principal, and on appeal the claim against the principal is heard de novo, if a discharge in bankruptcy operates as a bar to the rendering of a judgment against him on the appeal, such surety is released. Nance v. Gatlin & Cannon, 2 Tenn. App. 73, — S.W. —, 1925 Tenn. App. LEXIS 95 (Tenn. Ct. App. 1925).

Where the principal had not received a discharge in bankruptcy, the rendition of judgment against the surety should be stayed pending final step in bankruptcy. Nance v. Gatlin & Cannon, 2 Tenn. App. 73, — S.W. —, 1925 Tenn. App. LEXIS 95 (Tenn. Ct. App. 1925).

6. Appeal.

7. —Appeal to Supreme Court.

A surety on an appeal bond for damages and costs, given, as required by law, upon an appeal to the supreme court, is only liable for the costs incident to the appeal, and not for the costs of the court below. Denton v. Woods' Adm'r, 79 Tenn. 505, 1883 Tenn. LEXIS 95 (1883).

As between the surety on a certiorari bond to bring a justice's (now general sessions judge's) judgment into the circuit court, and the surety of appeal from the circuit to the supreme court, the latter was primarily liable. Moore v. Lassiter, 84 Tenn. 630, 1886 Tenn. LEXIS 150 (1886). See Kinzer v. Helm, 54 Tenn. 672, 1872 Tenn. LEXIS 103 (1872); Love v. Allison, 2 Cooper's Tenn. Ch. 111 (1874); Murray v. Winham, 3 Cooper's Tenn. Ch. 336 (1877); Winham v. Crutcher, 78 Tenn. 610, 1882 Tenn. LEXIS 230 (1882).

In a law case the surety on the filing of the original suit cannot be held for costs incurred on writ of error. Sullivan v. Tigert, 1 Tenn. App. 262, — S.W. —, 1925 Tenn. App. LEXIS 41 (Tenn. Ct. App. 1925).

8. —Appeal from Justice.

A surety on appeal bond in a case appealed from a justice of the peace (now general sessions judge) was bound for all the costs that may, at any time during the progress of the cause, be adjudged against his principal, to the extent of the penalty of the bond, but for no larger amount. Hite v. Rayburn, 114 Tenn. 463, 85 S.W. 1105, 1904 Tenn. LEXIS 100 (1904).

Collateral References. 20 Am. Jur. 2d Costs § 44.

20 C.J.S. Costs §§ 163, 179.

20-12-126. Omission of provisions from bond.

No omission or neglect to insert the proper conditions in the bonds shall vitiate or impair the validity of the bonds.

Acts 1859-1860, ch. 120, § 3; Shan., § 4937; Code 1932, § 9090; T.C.A. (orig. ed.), § 20-1628.

Textbooks. Tennessee Jurisprudence, 2 Tenn. Juris., Appeal and Error, §§ 71-82.

Law Reviews.

The Pauper's Oath in Appeals From General Sessions Court (Robert A. Lanier), 19 No. 2 Tenn. B.J. 17 (1983).

Cited: Coker v. Armco Drainage & Metal Products Co., 192 Tenn. 10, 236 S.W.2d 980, 1951 Tenn. LEXIS 375 (1951).

NOTES TO DECISIONS

1. Terms of Obligation as Limit of Liability.

This section cannot be construed to extend the surety's liability beyond the terms of his actual obligation. Spears v. Sherman, 148 Tenn. 430, 256 S.W. 436, 1923 Tenn. LEXIS 32 (1923).

2. Omissions in Prosecution Bonds — Effect.

Prosecution bonds are not impaired by omission of proper conditions; and full force and effect is thus given to this section. Burson v. Mahoney & Shipley, 65 Tenn. 304, 1873 Tenn. LEXIS 351 (1873).

The fact that a monetary amount was not stated in an appeal bond did not impair its validity and a surety thereon was not discharged since the defect is supplied by the law itself, that is, a surety is liable for the payment of the whole debt, damages and costs. Arkansas Fuel Oil Co. v. Tanner, 195 Tenn. 553, 260 S.W.2d 286, 1953 Tenn. LEXIS 379 (1953).

3. Variance Between Bond and Statute.

In view of this section, the variance between the terms of the cost bond and the terms of the statute providing for what security be given was not material. Woolfolk v. Woolfolk, 167 Tenn. 362, 69 S.W.2d 1089, 1933 Tenn. LEXIS 48 (1934).

Collateral References. 20 C.J.S. Costs § 182.

20-12-127. Pauper's oath.

  1. Any civil action may be commenced by a resident of this state without giving security as required by law for costs and without the payment of litigation taxes due by:
    1. Filing the following oath of poverty:

      I,  , do solemnly swear under penalties of perjury, that owing to my poverty, I am not able to bear the expense of the action which I am about to commence, and that I am justly entitled to the relief sought, to the best of my belief;

      and

    2. Filing an accompanying affidavit of indigency as prescribed by court rule.
  2. The filing of a civil action without paying the costs or taxes or giving security for the costs or taxes does not relieve the person filing the action from responsibility for the costs or taxes but suspends their collection until taxed by the court.

Code 1858, § 3192 (deriv. Acts 1821, ch. 22, §§ 1, 2; 1829, ch. 88, § 1); Acts 1891, ch. 221, § 1; 1897, ch. 100, § 1; 1901, ch. 126, § 1; 1903, ch. 197, § 1; Shan., § 4928; Code 1932, § 9080; Acts 1957, ch. 20, § 1; T.C.A. (orig. ed.), § 20-1629; Acts 1983, ch. 393, § 1; 1995, ch. 242, § 1.

Rule Reference. This section is referred to in Rule 29 of the Rules of the Supreme Court of Tennessee.

This section is referred to in Rule XV of the Rules of Court for Divisions I Through VI of the Shelby County Court of General Sessions.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), §§ 124, 331.

Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 346, 347, 701.

Tennessee Forms (Robinson, Ramsey and Harwell), No. 1-4-3.

Tennessee Jurisprudence, 2 Tenn. Juris., Appeal and Error, §§ 63-66, 69, 75, 199; 3 Tenn. Juris., Attachment and Garnishment, § 33; 5 Tenn. Juris., Certiorari, § 49; 6 Tenn. Juris., Clerks of Court, § 3; 7 Tenn. Juris., Corporations, § 99; 9 Tenn. Juris., Divorce and Alimony, § 2; 21 Tenn. Juris., Recovery of Personal Property, § 14.

Law Reviews.

The Pauper's Oath in Appeals From General Sessions Court (Robert A. Lanier), 19 No. 2 Tenn. B.J. 17 (1983).

Attorney General Opinions. The provisions of subsection (b), requiring prepayment of a cash bond regardless of indigency by any person seeking an absolute divorce, are unconstitutional. OAG 87-68 (4/15/87)

Cited: Priest v. Union Agency, 174 Tenn. 304, 125 S.W.2d 142, 1938 Tenn. LEXIS 93 (1939); In re Wilson, 314 F. Supp. 271, 1970 U.S. Dist. LEXIS 11964 (E.D. Tenn. 1970); Dungan v. Dungan, 579 S.W.2d 183, 1979 Tenn. LEXIS 424 (Tenn. 1979); Elmwood Apts. v. Woodson, — S.W.3d —, 2011 Tenn. App. LEXIS 196 (Tenn. Ct. App. Apr. 19, 2011).

NOTES TO DECISIONS

1. Constitutionality.

2. —Denial of Oath in Excepted Cases.

A statute forbidding the bringing up of certain cases on the oath is not invalid as class legislation. Kling v. Packet Co., 101 Tenn. 99, 46 S.W. 24, 1898 Tenn. LEXIS 36 (1898).

3. —Restricting Right to Residents.

Acts limiting the right to sue upon the pauper's oath to citizens or residents of this state are not unconstitutional for that reason. Kincaid v. Francis, 3 Tenn. 49 (1812). See Blake v. McClung, 172 U.S. 239, 19 S. Ct. 165, 43 L. Ed. 432, 1898 U.S. LEXIS 1651 (1898); Campbell v. Lee, 12 Tenn. App. 293, — S.W.2d —, 1930 Tenn. App. LEXIS 66 (Tenn. Ct. App. 1930).

Only a resident of this state may prosecute a suit or an appeal upon the pauper's oath and the chancellor is without power to grant to a nonresident the right to appeal on a pauper's oath. Hamby v. Northcut, 25 Tenn. App. 11, 149 S.W.2d 484, 1940 Tenn. App. LEXIS 87 (Tenn. Ct. App. 1940).

A pauper's oath filed by a nonresident is a nullity, and an attempted appeal thereon is not perfected. After the expiration of the thirty days, the cause, in so far as the nonresident is concerned, stands in the same plight and condition as if no appeal by the nonresident had been prayed or granted. Hamby v. Northcut, 25 Tenn. App. 11, 149 S.W.2d 484, 1940 Tenn. App. LEXIS 87 (Tenn. Ct. App. 1940).

In view of its purposes, to provide benefits to minor children living in a state foreign to the residence of their father who refuses to support them, provisions of the Reciprocal Enforcement of Support Act permitting filing of a petition by a nonresident upon a pauper's oath, certified in accordance with the law of a certifying state, although the general laws do not authorize such filing, do not violate our constitutional prohibition against suspension of our general laws. Martin v. Martin, 213 Tenn. 345, 373 S.W.2d 609, 1963 Tenn. LEXIS 488 (1963).

Because T.C.A. § 20-12-127 was inapplicable to judicial review of administrative proceedings and T.C.A. § 50-7-304(i) did not limit the availability of judicial review in forma pauperis to Tennessee residents, the statute conferred upon an indigent claimant, regardless of claimant's Arkansas residency, the right to seek judicial review in forma pauperis of an administrative decision denying unemployment compensation benefits where the claimant worked in Tennessee and was discharged in Tennessee. Patterson v. Tenn. Dep't of Labor & Workforce Dev., 60 S.W.3d 60, 2001 Tenn. LEXIS 781 (Tenn. 2001).

4. Statutory Purpose.

The object of this statute is to enable any poor person to prosecute an action without giving a cost bond (save in the cases excepted), and the right extends to appeals, appeals in error, and writs of error, which are in the nature of actions and within the purview of the statute; and the purpose is to place the weak on a level with the strong in a contest for their rights in the courts. Scott v. Brandon, 125 Tenn. 314, 143 S.W. 601, 1911 Tenn. LEXIS 28 (1911).

The law is very liberal in allowing the prosecution of suits in forma pauperis. The object of this rule is to place the weak on a level with the strong, in a contest for their rights in a court of justice. Hewell v. Cherry, 25 Tenn. App. 420, 158 S.W.2d 370, 1941 Tenn. App. LEXIS 125 (Tenn. Ct. App. 1941).

This section extends the right to proceed on the pauper's oath to appeals, appeals in error, and writs of error, and writs of certiorari and supersedeas in lieu of an appeal, and upon a proper showing a supersedeas or an attachment may be had on the pauper's oath. Hewell v. Cherry, 25 Tenn. App. 420, 158 S.W.2d 370, 1941 Tenn. App. LEXIS 125 (Tenn. Ct. App. 1941).

The purpose of this section is to place poor persons on a level with the wealthy in a contest for their rights in the courts and it should be construed as remedial legislation and given a liberal construction to effectuate its purpose. King v. Leeman, 30 Tenn. App. 206, 204 S.W.2d 384, 1946 Tenn. App. LEXIS 111 (Tenn. Ct. App. 1946).

5. Litigation Tax.

An indigent litigant is never permanently relieved from the duty of paying litigation taxes, although such payment may be deferred under T.C.A. § 20-12-127(b). Fletcher v. State, 9 S.W.3d 103, 1999 Tenn. LEXIS 678 (Tenn. 1999).

Trial court's order requiring that future pro se complaints filed by a litigant be referred to a Special Master for a determination of whether prior court costs had been satisfied and for the filing of a written report recommending whether the complaint should be allowed to proceed or be dismissed was a valid exercise of the trial court's authority. In re Green, — S.W.3d —, 2011 Tenn. App. LEXIS 543 (Tenn. Ct. App. Oct. 4, 2011).

6. Construction With Other Acts.

In light of the liberal policy of allowing indigent parties to proceed in court without first providing a cost bond, an indigent defendant in an unlawful detainer action who has petitioned for writs of certiorari and supersedeas is required to post a possessory bond, but the bond does not have to include the costs of the action; in other words, the bond posted by the indigent defendant must be sufficient in amount to cover damages and the value of the rent of the premises during the litigation. Gallatin Hous. Auth. v. Pelt, 532 S.W.3d 760, 2017 Tenn. App. LEXIS 329 (Tenn. Ct. App. May 16, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 610 (Tenn. Sept. 21, 2017).

T.C.A. § 20-12-127(a) did not apply to attorney disciplinary proceedings as prescribing the rules governing the reinstatement of an attorney's suspended law license fell squarely within the Supreme Court of Tennessee's inherent authority under Tenn. Const. art. II, §§ 1 and 2, and construing the statute to do so would have created a constitutional conflict. Brooks v. Bd. of Prof'l Responsibility, — S.W.3d —, 2019 Tenn. LEXIS 173 (Tenn. May 7, 2019).

7. —Will Contest.

Provisions of § 32-404 (now § 32-4-103) providing that any person may have an issue in the contest of a will upon the form prescribed by paupers must be construed in conjunction with § 20-12-127 providing that with certain exceptions any resident of the state may commence an action under pauper oath and “may” in such sections must be construed as “shall” so that it becomes mandatory that a will contest be permitted to be prosecuted in forma pauperis if the allegation of poverty is in fact true. Fiske v. Grider, 171 Tenn. 565, 106 S.W.2d 553, 1937 Tenn. LEXIS 138 (1937).

8. —Attachment.

Under this section both original and ancillary attachment may be had on pauper oath. Doty v. Federal Land Bank, 173 Tenn. 140, 114 S.W.2d 953, 1937 Tenn. LEXIS 20 (1938).

The fact that replevin cannot be had on pauper oath is immaterial on the question of whether or not a suit in tort commenced on original attachment under § 29-6-106 can be commenced on pauper oath since in attachment the property is not turned over to the plaintiff and may be replevied by the defendant. Doty v. Federal Land Bank, 173 Tenn. 140, 114 S.W.2d 953, 1937 Tenn. LEXIS 20 (1938).

This section which sets forth the instances where the pauper oath is authorized must be construed in pari materia with the provision of § 29-6-115 requiring a security bond in attachment. Doty v. Federal Land Bank, 173 Tenn. 140, 114 S.W.2d 953, 1937 Tenn. LEXIS 20 (1938).

An action in tort commenced by original attachment under the provisions of § 29-6-106 may be properly brought on pauper oath. Doty v. Federal Land Bank, 173 Tenn. 140, 114 S.W.2d 953, 1937 Tenn. LEXIS 20 (1938).

9. —Habeas Corpus.

This section and § 23-1836 (now § 29-21-127) are to be construed in pari materia so that an appeal bond will be required as a condition to an appeal from a habeas corpus proceeding. State ex rel. Strong v. Strong, 175 Tenn. 291, 133 S.W.2d 996, 1939 Tenn. LEXIS 40 (1939).

10. Nonresidence.

11. —Cost Bond Requisite.

Where a citizen or resident of this state sued upon the pauper's oath, and then removed from the state, pending his suit, he would be required, upon proper motion, to execute a bond for costs, upon failure to do which his suit would be dismissed. Southern R. Co. v. Thompson, 109 Tenn. 343, 71 S.W. 820, 1902 Tenn. LEXIS 79 (1902); Landress Co. v. Silva, 6 Tenn. App. 286, 1927 Tenn. App. LEXIS 141 (1927).

12. —Presumptions.

A plaintiff, shown by his deposition to have become a nonresident pending suit, must be presumed to have so continued until oath was filed for appeal. Goodlin v. Hutson, 16 Tenn. App. 488, 65 S.W.2d 217, 1931 Tenn. App. LEXIS 3 (Tenn. Ct. App. 1931).

13. Oath Requisites.

Although plaintiff did not file the statutorily required oath of poverty with respect to his action to proceed in forma pauperis, dismissal for such failure was not necessary because it was warranted on the ground that plaintiff failed to state a claim for relief. Reid v. Power, — S.W.3d —, 2013 Tenn. App. LEXIS 417 (Tenn. Ct. App. June 26, 2013).

14. —Before Whom Taken.

The pauper's oath in lieu of a prosecution bond may be taken before the clerk of any court in this state. Knoxville Iron Co. v. Smith, 86 Tenn. 45, 5 S.W. 438, 1887 Tenn. LEXIS 23 (1887); Phipps v. Burnett, 96 Tenn. 175, 33 S.W. 925, 1895 Tenn. LEXIS 22 (1896); Fawcett v. Chicago, S. L. & N. O. R. Co., 113 Tenn. 246, 81 S.W. 839, 1904 Tenn. LEXIS 21 (1904).

The pauper's oath, in lieu of a prosecution bond, for suit and attachment instituted in the circuit court, could be taken before a justice of the peace (now general sessions court) in the same county. Phipps v. Burnett, 96 Tenn. 175, 33 S.W. 925, 1895 Tenn. LEXIS 22 (1896); Fawcett v. Chicago, S. L. & N. O. R. Co., 113 Tenn. 246, 81 S.W. 839, 1904 Tenn. LEXIS 21 (1904).

Pauper's oath cannot be taken before a foreign notary public, because there is no statute conferring upon him power to administer such oath. Fawcett v. Chicago, S. L. & N. O. R. Co., 113 Tenn. 246, 81 S.W. 839, 1904 Tenn. LEXIS 21 (1904).

15. —Allegations.

Pauper's oath must be that owing to one's poverty he is unable to bear the expenses of the suit, and not that he is unable to give security for the costs. Smith v. Cunningham, 2 Cooper's Tenn. Ch. 565 (1875). But see Hale v. Landrum, 21 Tenn. 32, 1840 Tenn. LEXIS 21 (1840).

Affidavit should state that affiant is justly entitled to the redress sought. McKienavy v. Pickard, 3 Shan. 411 (1875).

16. —Showing of Residence — Necessity.

To be entitled to appeal in forma pauperis, parties must show affirmatively that they are citizens or residents of this state. Scruggs v. Baugh, 3 Tenn. App. 256, — S.W. —, 1926 Tenn. App. LEXIS 99 (Tenn. Ct. App. 1926).

For case holding a citizen of Alabama, employed and living in Tennessee when injured, a resident of Tennessee within the sense of this section, see King v. Leeman, 30 Tenn. App. 206, 204 S.W.2d 384, 1946 Tenn. App. LEXIS 111 (Tenn. Ct. App. 1946).

The defendant did not deprive plaintiff of his rights under Tenn. Const., art. I, § 17 where plaintiff had failed to comply completely with the requirements of this section in that he failed to state and show affirmatively that he was a resident of the state. Brotherton v. Solomon, 307 F. Supp. 1325, 1970 U.S. Dist. LEXIS 13258 (E.D. Tenn. 1970).

17. Proceedings Maintainable — Miscellaneous Examples.

Attachment upon pauper's oath as ancillary to an action for tort. Barber v. Denning, 36 Tenn. 267, 1856 Tenn. LEXIS 94 (1856); Robb v. Parker, 51 Tenn. 58, 1871 Tenn. LEXIS 134 (1871); Wiley v. Bennett, 68 Tenn. 581, 1877 Tenn. LEXIS 54 (1877); Hughes v. Tennison, 3 Cooper's Tenn. Ch. 641 (1878); Scott v. Brandon, 125 Tenn. 314, 143 S.W. 601, 1911 Tenn. LEXIS 28 (1911).

Appeal on pauper's oath from decree to sell land to enforce vendor's lien. Davis v. McMillin, 2 Shan. 441 (1877).

To hold that one who owns property but who is so involved in debt and whose property is so encumbered that he actually cannot give security, cannot proceed in forma pauperis is to defeat the purpose of this section which is to place the weak on a level with the strong and to allow every man, rich or poor, his day in court. Hewell v. Cherry, 25 Tenn. App. 420, 158 S.W.2d 370, 1941 Tenn. App. LEXIS 125 (Tenn. Ct. App. 1941).

Except for false imprisonment, malicious prosecution, slanderous words, and a case for absolute divorce, any resident of the state may file a pauper's oath by swearing to his or her poverty and inability to bear the expense of the action; and because of § 27-3-112 (repealed), this applies not only to the commencement of an action, but also to appeals. V. L. Nicholson Co. v. Transcon Inv. & Financial, Ltd., 595 S.W.2d 474, 1980 Tenn. LEXIS 406 (Tenn. 1980), superseded by statute as stated in, Barnett v. Willis, — S.W.2d —, 1990 Tenn. App. LEXIS 420 (Tenn. Ct. App. June 13, 1990).

18. —Under Dog Law.

Where under the dog law, in a justice of the peace court (now general sessions court), a dog was found to be a sheep killer, his owner could appeal to the circuit court by taking the oath prescribed by statute for poor persons. Darnell v. Shapard, 156 Tenn. 544, 3 S.W.2d 661, 1927 Tenn. LEXIS 151 (1928).

19. Actions Not Maintainable — Miscellaneous Examples.

Replevin suit cannot be prosecuted under the pauper's oath. Horton v. Vowel, 51 Tenn. 622, 1871 Tenn. LEXIS 214 (1871); Kincaid v. Bradshaw, 65 Tenn. 102, 1873 Tenn. LEXIS 312 (1873); Johnson v. Hunter, 68 Tenn. 185, 1877 Tenn. LEXIS 13 (1877); Scott v. Brandon, 125 Tenn. 314, 143 S.W. 601, 1911 Tenn. LEXIS 28 (1911).

Qui tam actions cannot be prosecuted upon the pauper's oath. Johnson v. Hunter, 68 Tenn. 185, 1877 Tenn. LEXIS 13 (1877); Smith v. Louisville & N. R. Co., 89 Tenn. 664, 15 S.W. 842, 1890 Tenn. LEXIS 89 (1890).

20. —Divorce Suits — Male Petitioner's Rights.

Neither suit for divorce nor appeal in such case may be had by a man on the pauper's oath. Gray v. Gray, 5 Tenn. App. 694, — S.W. —, 1927 Tenn. App. LEXIS 109 (Tenn. Ct. App. 1927).

21. —Injunction.

Where injunction is sought on execution of pauper's oath, it will be denied since defendant is left without remedy. Searcy v. Brandon, 167 Tenn. 218, 68 S.W.2d 112, 1933 Tenn. LEXIS 28 (1934).

22. Refusal to Require Cost Bond.

The failure of the court to require the plaintiff to execute a prosecution bond, where the law requires such, is a harmless error, where, upon the trial, the plaintiff succeeds and recovers a judgment for costs against the defendant, which judgment is affirmed by the supreme court. Southern R. Co. v. Thompson, 109 Tenn. 343, 71 S.W. 820, 1902 Tenn. LEXIS 79 (1902). See Crocker v. Balch, 104 Tenn. 6, 55 S.W. 307, 1899 Tenn. LEXIS 2 (1900).

23. Action Refiled After Nonsuit.

Plaintiff's taking nonsuit after having filed pauper's oath does not preclude his refiling his action and maintaining it on the pauper's oath. Campbell v. Lee, 12 Tenn. App. 293, — S.W.2d —, 1930 Tenn. App. LEXIS 66 (Tenn. Ct. App. 1930).

24. Divorce.

25. —Wives' Right to Return of Deposit.

Wives seeking divorce on deposit required are not entitled to have the deposit returned to them unless it be collected on execution or otherwise from the husband. Lawson v. Lawson, 8 Tenn. Civ. App. 479 (1918).

26. —Male Defendant's Rights.

In divorce case, a male defendant may appeal on the pauper's oath from a decree of the lower court where he is merely a defendant, and his pleading does not ask for affirmative relief. Prince v. Prince, 9 Tenn. App. 359, — S.W. —, 1926 Tenn. App. LEXIS 212 (Tenn. Ct. App. 1926); Tarver v. Tarver, 10 Tenn. App. 677, 1929 Tenn. App. LEXIS 66 (1929).

27. “Slanderous Words” — Meaning.

The exception “slanderous words” contained in this section embraces both oral and written defamation. Eden v. Celsor, 172 Tenn. 598, 113 S.W.2d 745, 1937 Tenn. LEXIS 103 (1938).

28. Appeal.

29. —County to Circuit Court.

An appeal from county court to circuit court on the merits could be prosecuted in forma pauperis. Brumley v. Hayworth, 11 Tenn. 420, 11 Tenn. 421, 1832 Tenn. LEXIS 79 (1832).

30. —Nonresidence.

Where motion is made in appellate court to dismiss appeal on the oath because appellant was a nonresident, it is not supported merely because the oath appears to have been made before a notary in Ohio, there being no affidavit that he was or had become a resident of that state. Goodlin v. Hutson, 16 Tenn. App. 488, 65 S.W.2d 217, 1931 Tenn. App. LEXIS 3 (Tenn. Ct. App. 1931).

31. —Record.

The pauper's oath being a substitute for the prosecution and appeal bond becomes part of the record proper so that it is unnecessary to incorporate such oath into the bill of exceptions on appeal. Fiske v. Grider, 171 Tenn. 565, 106 S.W.2d 553, 1937 Tenn. LEXIS 138 (1937).

32. —Defendant in Excepted Cases.

An appeal in forma pauperis is allowable on behalf of a defendant against whom a judgment has been rendered for false imprisonment, malicious prosecution, or slanderous words. Heatherly v. Bridges, 48 Tenn. 220, 1870 Tenn. LEXIS 40 (1870).

33. —Slander Cases.

Plaintiff in a slander case cannot, upon the pauper's oath, prosecute an appeal from a judgment dismissing his suit and taxing him with the costs. Cox v. Patton, 79 Tenn. 545, 1883 Tenn. LEXIS 104 (1883); Hendrickson v. Cartright, 99 Tenn. 364, 41 S.W. 1053, 1897 Tenn. LEXIS 40 (1897). But see Heatherly v. Bridges, 48 Tenn. 220, 1870 Tenn. LEXIS 40 (1870), showing that the defendant in such cases may appeal upon the pauper's oath.

34. —Libel.

Plaintiffs in an action for libel could not appeal on the pauper's oath since an appeal is in the nature of an action and since such suit was within the exception of “slanderous words” as set out in this section. Eden v. Celsor, 172 Tenn. 598, 113 S.W.2d 745, 1937 Tenn. LEXIS 103 (1938).

35. —Habeas Corpus.

As an appeal bond is specifically required in an appeal from habeas corpus proceedings under the provisions of § 23-1836 (now § 29-21-127), such section has the effect of adding to this section another type of suit in which appeal cannot be had on the pauper's oath. State ex rel. Strong v. Strong, 175 Tenn. 291, 133 S.W.2d 996, 1939 Tenn. LEXIS 40 (1939).

There was no abuse of discretion by failing to find defendant indigent and taxing the costs to his account because the petition for writ of habeas corpus failed to allege a cognizable claim for habeas corpus relief; Tenn. Sup. Ct. R. 29 and T.C.A. § 20-12-127 only contemplated that an indigent litigant would not be denied access to the courts to commence a civil action solely because of an inability to pay litigation taxes. Anderson v. Carlton, — S.W.3d —, 2008 Tenn. Crim. App. LEXIS 15 (Tenn. Crim. App. Jan. 11, 2008).

36. —Waiver.

In suit by appellant “individually and for use and benefit of” named insurance company against defendant for damages arising out of automobile accident the defendant who did not question appeal under pauper's oath in trial court could not raise question of validity of appeal bond in appellate court. Perry v. Carter, 188 Tenn. 409, 219 S.W.2d 905, 1949 Tenn. LEXIS 353 (1949).

37. —Appeal Granted upon Condition.

A decree granting an appeal, “upon complainants giving an appeal bond or taking the pauper's oath,” will be construed as granting the right to appeal on the pauper's oath only to such of the complainants as were lawfully entitled to thus prosecute an appeal. Hamby v. Northcut, 25 Tenn. App. 11, 149 S.W.2d 484, 1940 Tenn. App. LEXIS 87 (Tenn. Ct. App. 1940).

An appeal granted on the condition that a bond be made cannot be perfected by taking the pauper's oath. Hewell v. Cherry, 25 Tenn. App. 420, 158 S.W.2d 370, 1941 Tenn. App. LEXIS 125 (Tenn. Ct. App. 1941).

38. Federal Court Rule.

A rule of a federal district court to the effect that where suits are instituted in forma pauperis, and counsel for plaintiff is an interested party by reason of having taken the case on a contingent fee, depending upon the result of the action, such suit cannot be prosecuted upon plaintiff's oath of his own poverty alone, but that counsel must likewise execute and file such an oath or give proper security for costs, is not invalid. United States ex rel. Randolph v. Ross, 298 F. 64, 1924 U.S. App. LEXIS 2608, 33 A.L.R. 728 (6th Cir. Tenn. 1924).

39. Corporations.

The statute does not, by its language, prohibit a corporation from filing a pauper's oath. V. L. Nicholson Co. v. Transcon Inv. & Financial, Ltd., 595 S.W.2d 474, 1980 Tenn. LEXIS 406 (Tenn. 1980), superseded by statute as stated in, Barnett v. Willis, — S.W.2d —, 1990 Tenn. App. LEXIS 420 (Tenn. Ct. App. June 13, 1990).

Where there was no challenge to the actual wording of the pauper's oath, it was legally sufficient; however, better practice requires that when a corporation files a pauper's oath it state as specifically as possible its reasons for its inability to bear the costs of the action. V. L. Nicholson Co. v. Transcon Inv. & Financial, Ltd., 595 S.W.2d 474, 1980 Tenn. LEXIS 406 (Tenn. 1980), superseded by statute as stated in, Barnett v. Willis, — S.W.2d —, 1990 Tenn. App. LEXIS 420 (Tenn. Ct. App. June 13, 1990).

While the words “any resident” might be construed as contemplating a natural person, there is no reason to construe the words as excluding a corporation which is a resident of the state; the better practice would be to extend to an insolvent corporation this opportunity to pursue a meritorious appeal. V. L. Nicholson Co. v. Transcon Inv. & Financial, Ltd., 595 S.W.2d 474, 1980 Tenn. LEXIS 406 (Tenn. 1980), superseded by statute as stated in, Barnett v. Willis, — S.W.2d —, 1990 Tenn. App. LEXIS 420 (Tenn. Ct. App. June 13, 1990).

40. —Bonds.

It is entirely possible in those cases where the statute requires bond for the full amount of the judgment, that the corporate entity, while unable to procure bond for the entire amount, may partially bond the judgment, resulting in an appeal bond, in part, and resting on the pauper's oath in part; this type of situation should be resolved in the trial court. V. L. Nicholson Co. v. Transcon Inv. & Financial, Ltd., 595 S.W.2d 474, 1980 Tenn. LEXIS 406 (Tenn. 1980), superseded by statute as stated in, Barnett v. Willis, — S.W.2d —, 1990 Tenn. App. LEXIS 420 (Tenn. Ct. App. June 13, 1990).

41. Inmates.

While inmate could file suit in prison disciplinary proceeding, taxing of costs to inmate was not improper because T.C.A. § 20-12-127 did not contemplate that indigent inmates would be permanently relieved from their responsibility. Meeks v. Tenn. Dep't of Corr., — S.W.3d —, 2008 Tenn. App. LEXIS 290 (Tenn. Ct. App. May 15, 2008), cert. denied, 556 U.S. 1187, 129 S. Ct. 2043, 173 L. Ed. 2d 1092, 2009 U.S. LEXIS 3001 (U.S. 2009).

Collateral References. 20 Am. Jur. 2d Costs §§ 47-51.

20 C.J.S. Costs §§ 127, 152.

Attorney on contingent fee as bound to make pauper's oath in support of suit in forma pauperis. 37 A.L.R. 731, 41 A.L.R. 745, 65 A.L.R. 1494, 139 A.L.R. 1209.

Financial circumstances which will enable one to sue in forma pauperis. 6 A.L.R. 1281.

Right to sue in forma pauperis as dependent on showing of financial disability of attorney or other nonparty or nonapplicant. 11 A.L.R.2d 607.

What costs or fees are contemplated by statute authorizing proceeding in forma pauperis. 98 A.L.R.2d 292.

Costs 128.

20-12-128. Guardian's or conservator's oath — Protection from liability.

  1. The next friend or any person who has been appointed by any court guardian, guardian ad litem or conservator of any person adjudicated incompetent or infant, may commence and prosecute an action, suit or cross suit or appeal without giving bond or security for costs, by taking and subscribing an oath that the next friend, guardian, guardian ad litem or conservator has no property of the person adjudicated incompetent or infant, out of which to bear the expense of such action, and that the next friend, guardian, guardian ad litem or conservator verily believes that such person adjudicated incompetent or infant is justly entitled to the redress sought. The next friend or person may also file an accompanying affidavit of indigency as prescribed by court rule. The filing of such a civil action without paying the costs or taxes or giving security for the costs or taxes does not relieve the responsibility for the costs and taxes, but merely suspends their collection until taxed by the court.
  2. The guardian, guardian ad litem or conservator shall not incur any personal liability for such action, unless the court finds that the step was not taken in good faith.

Acts 1871, ch. 111, § 1; 1907, ch. 25, § 1; Shan., § 4929; Acts 1929, ch. 19, § 1; mod. Code 1932, § 9081; T.C.A. (orig. ed.), § 20-1630; Acts 1995, ch. 242, § 2; 2011, ch. 47, § 15.

Compiler's Notes. Acts 2011, ch. 47, § 107 provided that nothing in the legislation shall be construed to alter or otherwise affect the eligibility for services or the rights or responsibilities of individuals covered by the provision on the day before the date of enactment of this legislation, which was July 1, 2011.

Acts 2011, ch. 47, § 108 provided that the provisions of the act are declared to be remedial in nature and all provisions of the act shall be liberally construed to effectuate its purposes.

Amendments. The 2011 amendment substituted “guardian, guardian ad litem or conservator” for “guardian or guardian ad litem” throughout the section; and substituted “person adjudicated incompetent” for “idiot, lunatic, person of unsound mind” throughout (a).

Effective Dates. Acts 2011, ch. 47, § 110. July 1, 2011.

Rule Reference. This section is referred to in Rule 29 of the Rules of the Supreme Court of Tennessee.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 124.

Tennessee Jurisprudence, 18 Tenn. Juris., Minors, § 25.

Cited: Martin v. Martin, 213 Tenn. 345, 373 S.W.2d 609, 1963 Tenn. LEXIS 488 (1963).

NOTES TO DECISIONS

1. “Appeal” — Scope of Word.

The word “appeal” covers appeals and writs of error. Alexander v. Morris, 109 Tenn. 724, 71 S.W. 751, 1902 Tenn. LEXIS 104 (1902).

2. Appeal by Guardian Ad Litem.

Under this section and § 20-12-129, a guardian ad litem for minors could not prosecute an appeal forma pauperis prior to the year 1929. Scruggs v. Baugh, 3 Tenn. App. 256, — S.W. —, 1926 Tenn. App. LEXIS 99 (Tenn. Ct. App. 1926).

3. Appeal by Next Friend of Incompetent.

Oath for appeal executed by next friend of incompetent was in substantial compliance with statute under assumption by court of appeals that chancellor, in granting appeal, treated same as prayed by incompetent rather than by next friend. Ward v. Lovell, 21 Tenn. App. 560, 113 S.W.2d 759, 1937 Tenn. App. LEXIS 58 (Tenn. Ct. App. 1937).

Collateral References. 20 C.J.S. Costs § 151.

Guardian and ward 14.

20-12-129. Next friend's oath.

A person acting as the next friend of an infant may on like terms prosecute a suit or appeal for the infant in forma pauperis, upon taking and subscribing an oath that the infant, in whose behalf the action or suit is begun, is not able, and has not sufficient property, to bear the expenses of the action or suit about to be commenced, by filing an accompanying affidavit of indigency as prescribed by court rule and that the infant is justly entitled to the relief sought, to the best of the next friend's belief.

Acts 1889, ch. 105, § 1; Shan., § 4930; mod. Code 1932, § 9082; T.C.A. (orig. ed.), § 20-1631; Acts 1995, ch. 242, § 3.

Rule Reference. This section is referred to in Rule 29 of the Rules of the Supreme Court of Tennessee.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 124.

NOTES TO DECISIONS

1. Construction with Other Sections.

This section should not be construed in pari materia with §§ 20-12-127, 20-12-130. Vezolles v. Tennessee C. R. Co., 175 Tenn. 554, 136 S.W.2d 502, 1939 Tenn. LEXIS 74 (1940).

This section must be construed in pari materia with § 20-12-128, because the words “like terms” have reference to the terms found in § 20-12-128. The privilege conferred upon the next friend of an infant to prosecute a suit in forma pauperis is not limited by the language of either section to resident infants. Vezolles v. Tennessee C. R. Co., 175 Tenn. 554, 136 S.W.2d 502, 1939 Tenn. LEXIS 74 (1940).

2. Protection of Next Friends from Costs.

A next friend, suing for one under disability, may protect himself from costs where unsuccessful by compliance with the statute intended so to protect him; but the statute will not protect him if not complied with. Grant v. Davis, 8 Tenn. Civ. App. 315 (1918).

3. Nonresidence.

Where the original act limited the provisions of this section to the next friend of any infant “in this state” but the Code of 1932 omitted the words “in this state,” it was the clear intention of the legislature to extend the provisions to the next friends of all infants whether residents of the state or not and the courts were without jurisdiction to read back into the statute what the legislature had deliberately removed. Vezolles v. Tennessee C. R. Co., 175 Tenn. 554, 136 S.W.2d 502, 1939 Tenn. LEXIS 74 (1940).

Collateral References. 20 C.J.S. Costs § 153.

Costs 131.

20-12-130. Personal representative's oath — Protection from liability.

  1. Any personal representative of the estate of any deceased person in this state may commence and prosecute any action or suit, or appeal, in favor of the estate represented by the personal representative, in any court without giving bond and security for costs, by taking and subscribing an oath that the personal representative, as such personal representative, has no property belonging to the estate of the deceased out of which to bear the expenses of the action or suit by filing of an accompanying affidavit of indigency as prescribed by court rule, and that the personal representative verily believes that the estate, for the benefit of which the action or suit is brought, is justly entitled to the redress sought. The filing of such a civil action without paying the costs or taxes or giving security for the costs or taxes does not relieve the responsibility for the costs or taxes, but merely suspends their collection until taxed by the court.
  2. In such case the personal representative shall not incur any personal liability, unless the court trying the case should be of the opinion and adjudge that the action was frivolous or malicious.

Acts 1897, ch. 133; Shan., § 4930a2; mod. Code 1932, § 9083; T.C.A. (orig. ed.), § 20-1632; Acts 1995, ch. 242, § 4.

Rule Reference. This section is referred to in Rule 29 of the Rules of the Supreme Court of Tennessee.

This section is referred to in Rule XV of the Rules of Court for Divisions I Through VI of the Shelby County Court of General Sessions.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), §§ 124, 249.

Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 701, 702.

NOTES TO DECISIONS

1. Existence of Assets Barring Right.

An administrator, with the will annexed, should not be permitted to prosecute an appeal on the pauper's oath, where the estate has assets. Crocker v. Balch, 104 Tenn. 6, 55 S.W. 307, 1899 Tenn. LEXIS 2 (1900).

2. Nonresident Personal Representatives.

Nonresident personal representatives cannot prosecute suits or appeals upon the oath that the estate has no property to bear the expenses of the action; a nonresident qualified here as the personal representative of a person dying here or leaving assets or property here may prosecute a suit in this state as such personal representative, on the pauper oath prescribed for personal representatives. Fawcett v. Chicago, S. L. & N. O. R. Co., 113 Tenn. 246, 81 S.W. 839, 1904 Tenn. LEXIS 21 (1904); Southern R.R. v. Maxwell, 113 Tenn. 464, 82 S.W. 1137, 1904 Tenn. LEXIS 37 (1904). See Shepard & Gluck v. Thomas, 147 Tenn. 338, 246 S.W. 836, 1922 Tenn. LEXIS 46 (1922).

Collateral References. 20 C.J.S. Costs § 153.

Executors and administrators 456(1).

20-12-131. Duties of officers and witnesses in cases in forma pauperis.

In the cases provided for by §§ 20-12-12720-12-130, the clerks and other officers of court shall perform all the usual duties required in the progress of an action or suit, and the witnesses shall attend, as in other cases, unless their depositions are taken under the provisions of this code.

Code 1858, § 3193 (deriv. Acts 1821, ch. 22, §§ 1, 4); Shan., § 4931; Code 1932, § 9084; T.C.A. (orig. ed.), § 20-1633.

20-12-132. Dismissal of pauper's action.

  1. If it is made to appear to the court, at any time before the trial, that the allegation of poverty is probably untrue, or the cause of action frivolous or malicious, the action may be dismissed.
  2. The burden shall be upon a pauper to justify the pauper's oath.

Code 1858, § 3194 (deriv. Acts 1821, ch. 22, § 5); Shan., § 4932; mod. Code 1932, § 9085; T.C.A. (orig. ed.), § 20-1634; Acts 1995, ch. 242, § 5.

Rule Reference. This section is referred to in Rule 29 of the Rules of the Supreme Court of Tennessee.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 124.

Tennessee Jurisprudence, 2 Tenn. Juris., Appeal and Error, § 65; 17 Tenn. Juris., Justices of Peace and General Sessions Courts, § 42.

Law Reviews.

The Pauper's Oath in Appeals From General Sessions Court (Robert A. Lanier), 19 No. 2 Tenn. B.J. 17 (1983).

Attorney General Opinions. Requirement of surety bond to perfect appeal from general session court to circuit court; determination of party’s indigence.  OAG 12-23, 2012 Tenn. AG LEXIS 23 (2/23/12).

NOTES TO DECISIONS

1. Construction.

2. —Liberal.

The statute will be liberally construed in favor of the rights of poor persons. Fort v. Noe, 144 Tenn. 337, 233 S.W. 516, 1920 Tenn. LEXIS 76 (1920); Hewell v. Cherry, 25 Tenn. App. 420, 158 S.W.2d 370, 1941 Tenn. App. LEXIS 125 (Tenn. Ct. App. 1941).

3. —“May” — Construed.

The word “may” in this section is construed as if it were “shall.” Fort v. Noe, 144 Tenn. 337, 233 S.W. 516, 1920 Tenn. LEXIS 76 (1920); Jones v. Dailey, 785 S.W.2d 365, 1989 Tenn. App. LEXIS 755 (Tenn. Ct. App. 1989).

4. —Courts Covered by Section.

This provision applies to the inferior courts and not to the appellate court. State use of Fletcher v. Gannaway, 84 Tenn. 124, 1885 Tenn. LEXIS 122 (1885); Campbell v. Lee, 12 Tenn. App. 293, — S.W.2d —, 1930 Tenn. App. LEXIS 66 (Tenn. Ct. App. 1930).

5. Discretion of Court.

It is impossible to lay down a rule which will govern in every case in determining whether a party should be dispaupered or not. Much must be left to the sound discretion of the judge who tries the question, but on such trials the uniform language of the supreme court has been that the laws passed to enable poor persons to litigate their rights in court should be construed and administered with great liberality. Heatherly v. Hill, 67 Tenn. 170, 1874 Tenn. LEXIS 346 (1874).

On appeal on the pauper's oath, where the falsity of the oath of poverty is conclusively shown, the trial court is required to dismiss the appeal since the court in such case could not by arbitrary exercise of discretion decline to do that which the proof showed ought to be done, but was required to decide the question in the same manner as any other question coming before it for decision, subject to a review of its decision by the appellate court. Fort v. Noe, 144 Tenn. 337, 233 S.W. 516, 1920 Tenn. LEXIS 76 (1920).

6. —Falsity of Affidavit.

On defendant's appeal to the circuit court on the pauper's oath, uncontradicted proof by disinterested witnesses that the defendant had property worth more than $5,000 conclusively establishes the falsity of his affidavit of poverty. Fort v. Noe, 144 Tenn. 337, 233 S.W. 516, 1920 Tenn. LEXIS 76 (1920).

On appeal to the circuit court from a justice of the peace (now general sessions court), upon the pauper's oath, the oath itself could not be considered as evidence on the question of the truth or falsity of the affidavit of poverty. Fort v. Noe, 144 Tenn. 337, 233 S.W. 516, 1920 Tenn. LEXIS 76 (1920).

On defendant's appeal to the circuit court, upon the pauper's oath, the plaintiffs have the burden of proving the falsity of the affidavit of poverty. Fort v. Noe, 144 Tenn. 337, 233 S.W. 516, 1920 Tenn. LEXIS 76 (1920).

7. —Exempt Property No Ground.

A party will not be dispaupered when all the property that he owns is exempt from execution, especially where such exempt property is of little value. Heatherly v. Hill, 67 Tenn. 170, 1874 Tenn. LEXIS 346 (1874).

8. —Disinterested Witness.

Where defendant sought to defend suit contesting a will under pauper oath and where there was no testimony by disinterested persons that the allegation of poverty was probably untrue defendant was entitled to proceed with the suit in forma pauperis and it was not within the discretion of the trial court to order such defendant to execute a contest bond. Fiske v. Grider, 171 Tenn. 565, 106 S.W.2d 553, 1937 Tenn. LEXIS 138 (1937).

One cannot be dispaupered upon the evidence of his adversary in the suit. Hewell v. Cherry, 25 Tenn. App. 420, 158 S.W.2d 370, 1941 Tenn. App. LEXIS 125 (Tenn. Ct. App. 1941).

9. Action Dismissed.

Testimony of fellow employee and payroll administrator of plaintiff's employer, as well as plaintiff's own admissions, satisfied defendant's burden of demonstrating that plaintiff's oath of poverty was probably untrue. As plaintiff was unable to “justify his oath,” dismissal under this section was warranted. Jones v. Dailey, 785 S.W.2d 365, 1989 Tenn. App. LEXIS 755 (Tenn. Ct. App. 1989).

Although plaintiff did not file the statutorily required oath of poverty with respect to his action to proceed in forma pauperis, dismissal for such failure was not necessary because it was warranted on the ground that plaintiff failed to state a claim for relief. Reid v. Power, — S.W.3d —, 2013 Tenn. App. LEXIS 417 (Tenn. Ct. App. June 26, 2013).

Collateral References. 20 C.J.S. Costs § 157.

20-12-133. Judgment against pauper.

On failure, for any reason, to prosecute the action or suit with effect, judgment or decree shall be given against such poor persons, and execution awarded, as in other cases.

Code 1858, § 3195 (deriv. Acts 1829, ch. 88, § 1); Shan., § 4933; Code 1932, § 9086; T.C.A. (orig. ed.), § 20-1635.

Textbooks. Tennessee Forms (Robinson, Ramsey and Harwell), No. 1-4-3.

Law Reviews.

Recent Developments — Domestic Relations — Divorce — Due Process for Indigent Plaintiffs, 47 Tenn. L. Rev. 845.

NOTES TO DECISIONS

1. Costs Against Unsuccessful Pauper.

If the person appealing in forma pauperis fails to prosecute his suit successfully, the court is not precluded from rendering a judgment against him for costs. Andrews v. Page, 49 Tenn. 634, 1871 Tenn. LEXIS 56 (1871).

2. Judgment Over for Costs.

Where complainant prosecuted on oath and defendant, finally successful, was taxed with costs, latter may have judgment over against complainant. Cunningham v. Moore, 161 Tenn. 128, 29 S.W.2d 654, 1929 Tenn. LEXIS 40 (1930).

Collateral References. 20 C.J.S. Costs § 156.

20-12-134. Payment by state.

In all cases where any civil action is brought on behalf of the state, in law or equity, and the state is adjudged to pay all costs, the costs shall be paid out of the treasury, upon the costs being properly certified.

Acts 1859-1860, ch. 76, § 2; Shan., § 4963; Code 1932, § 9117; T.C.A. (orig. ed.), § 20-1636.

Cross-References. Bond not required, § 20-13-101.

Payment of costs adjudged against county, §§ 5-9-3085-9-310.

NOTES TO DECISIONS

1. Suit Authorized by State.

Where suit to recover money allegedly misappropriated from two Tennessee children's home societies was apparently authorized by the state through the attorney general, and the societies did not authorize the bringing of the suit, which was dismissed because the district attorney general was not made a party complainant, the costs could not be legally assessed against the societies but should be adjudged against the state. State use of Tenn. Children's Home Soc. v. Hollinsworth, 193 Tenn. 491, 246 S.W.2d 345, 1952 Tenn. LEXIS 315 (1952).

2. Guardian Ad Litem Fees.

The intent of the legislature in § 37-1-150 and this section was to allow the limited award of guardian ad litem fees against the state only in those excepted cases, rather than to allow fees unlimited as to amount in all other cases initiated by the state. In re Harris, 849 S.W.2d 334, 1993 Tenn. LEXIS 56 (Tenn. 1993).

Collateral References. 20 Am. Jur. 2d Costs § 32.

20 C.J.S. Costs § 127.

States 215.

20-12-135. Judgment against surety.

When security is given, judgment may, on motion, be rendered against the surety for costs, as well as against the principal. Judgment against an attorney as surety, for security taken or recorded after July 1, 1999, shall extend only to amounts required by law or included in the clerk's bill of costs, and shall not include discretionary costs.

Code 1858, § 3196 (deriv. Acts 1847-1848, ch. 62, § 1); Shan., § 4934; Code 1932, § 9087; T.C.A. (orig. ed.), § 20-1637; Acts 1999, ch. 207, § 2.

Cross-References. Remedies for and against surety, §§ 25-3-12225-3-134.

Collateral References. Principal and surety 73.

20-12-136. Execution against principal and surety.

Where the costs in any case in a court of record, or before a judge of the court of general sessions, are adjudged against a party, judgment shall be rendered jointly against the party and the party's sureties, but the execution issued on the costs shall be collected from the party, if it can be. If execution cannot be collected from the party, then it shall be collected from the sureties. Execution issued against an attorney as surety, for security taken or recorded after July 1, 1999, shall collect only the amounts required by law or included in the clerk's bill of costs, and shall not include discretionary costs.

Acts 1859-1860, ch. 120, § 2; Shan., § 4936; Code 1932, § 9089; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 20-1638; Acts 1999, ch. 207, § 3.

Law Reviews.

Recent Developments — Domestic Relations — Divorce — Due Process for Indigent Plaintiffs, 47 Tenn. L. Rev. 845.

Collateral References. Execution 127.

20-12-137. Recovery from successful party.

All costs in civil actions accrued at the instance of the successful party that cannot be collected out of the other party may be recovered, on motion, by the person entitled to them, against the successful party and the surety on the successful party's cost bond.

Code 1858, § 3204 (deriv. Acts 1847-1848, ch. 62, § 2); Shan., § 4945; mod. Code 1932, § 9098; Acts 1939, ch. 62, § 1; C. Supp. 1950, § 9098; T.C.A. (orig. ed.), § 20-1639.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), §§ 242, 245.

Tennessee Jurisprudence, 18 Tenn. Juris., Limitations of Actions, § 17.

NOTES TO DECISIONS

1. “Costs” — What Constitutes.

“Costs” include costs of transcript on appeal and such disbursements to witnesses and officials as are allowed by law. State Tax Cases, 80 Tenn. 744, 1884 Tenn. LEXIS 159 (1884).

2. Motion Judgment.

3. —Requisites.

A judgment, by motion, for costs must have all the requisites of other judgments by motion. It must show, by sufficient description, the cause in which the costs accrued, and the issue of execution a sufficient return of the execution showing search and want of property, the production of the execution on the trial of the motion, and the right of the applicant to the judgment. Stuart v. McCuistion, 48 Tenn. 427, 1870 Tenn. LEXIS 82 (1870). See Rucker v. Moore, 48 Tenn. 726, 1870 Tenn. LEXIS 139 (1870).

4. —Place for Making Motion.

The motion must be made in the court and cause where the costs accrued. Tindell v. Robbins, 136 Tenn. 321, 189 S.W. 684, 1916 Tenn. LEXIS 134 (1916).

5. —Jurisdiction.

Where Private Acts 1939, ch. 54 created a general sessions court for Knox County and divested the justices of the peace (now general sessions courts) of jurisdiction in civil and criminal cases and vested such authority in the general sessions court, such court had jurisdiction to hear and determine a motion under the section by a justice of the peace (now general sessions court) to recover costs against the successful parties in civil actions tried before him prior to the creation of the general sessions court. Morris Plan Bank v. Scott, 176 Tenn. 496, 144 S.W.2d 741, 1940 Tenn. LEXIS 93 (1940).

6. —Limitations.

As no period of limitation is expressly provided by the statutes applicable to a motion under this section, the period of limitation is 10 years under the provisions of § 28-3-110. Morris Plan Bank v. Scott, 176 Tenn. 496, 144 S.W.2d 741, 1940 Tenn. LEXIS 93 (1940).

7. Officer's Right to Have Costs Retaxed.

The clerk may, by suit or motion, recover from the successful party his fees allowed by law for services rendered at such party's instance, where they cannot be collected from the unsuccessful party against whom adjudged. Ewing v. Lusk, 12 Tenn. 459, 1833 Tenn. LEXIS 78 (1833); Carren v. Breed, 42 Tenn. 465, 1865 Tenn. LEXIS 88 (1865).

Any officer has the right to make the motion only for fees due to himself. State ex rel. Bedford v. McCorkle, 163 Tenn. 496, 43 S.W.2d 496, 1930 Tenn. LEXIS 145 (1931).

In habeas corpus proceeding dismissed, the attorney general has no such interest as to authorize his motion to retax costs against the state. State ex rel. Bedford v. McCorkle, 163 Tenn. 496, 43 S.W.2d 496, 1930 Tenn. LEXIS 145 (1931).

8. Surety of Successful Party — Liability.

Under this section the surety of a successful party is not liable for his principal's cost in actions of law. Carren v. Breed, 42 Tenn. 465, 1865 Tenn. LEXIS 88 (1865); Deaton v. Mulvaney, 69 Tenn. 73, 1878 Tenn. LEXIS 44 (1878).

A motion to collect costs of the surety which accrued at the instance of his principal as complainant, in an equity case, lies against such successful party, not the surety of such party. Woolfolk v. Woolfolk, 167 Tenn. 362, 69 S.W.2d 1089, 1933 Tenn. LEXIS 48 (1934).

9. Evidence of Inability to Collect — Sufficiency.

The nulla bona return of an execution issued against the unsuccessful party is sufficient evidence that the costs cannot be collected from him. Clerk's Motions for Judgments for Costs, 59 Tenn. 152, 1873 Tenn. LEXIS 39 (1873); Lefeber v. Nashville, C. & St. L.R.R., 92 Tenn. 164, 20 S.W. 978, 1892 Tenn. LEXIS 62 (1892).

10. Appeal.

11. —Appeal as to Costs.

An appeal will not be entertained solely to review the action of the trial court in adjudging ordinary costs. State ex rel. Wilson v. Bush, 141 Tenn. 229, 208 S.W. 607, 1918 Tenn. LEXIS 84 (1919); Wright v. Eakin, 151 Tenn. 681, 270 S.W. 992, 1924 Tenn. LEXIS 95 (1925).

The rule that appeal will not be entertained solely to review the action of the trial court in adjudging ordinary costs does not apply where a substantial amount was allowed, as guardian ad litem fee, to be taxed as costs. American Nat'l Bank v. Meadors, 162 Tenn. 324, 36 S.W.2d 86, 1930 Tenn. LEXIS 93 (1931).

12. —Appeals from Justices.

The successful party is liable for costs accruing at his instance, where they cannot be made out of the unsuccessful party, in appeals from justices of the peace (now general sessions court), as well as in other cases. Day v. Joiner, 65 Tenn. 441, 1873 Tenn. LEXIS 384 (1873).

13. —Appeals to Supreme Court.

The appellant who has obtained a reversal and judgment for costs of appeal against the appellee is liable, upon motion of the interested parties, made in the supreme court, for all costs of the appeal, accrued at the instance of the successful appellant and that cannot be collected out of the appellee, after return of execution against the appellee nulla bona, although the cause is still pending and undetermined in the lower court. Lefeber v. Nashville, C. & St. L.R.R., 92 Tenn. 164, 20 S.W. 978, 1892 Tenn. LEXIS 62 (1892).

Collateral References. 20 Am. Jur. 2d Costs §§ 95-98.

20 C.J.S. Costs § 109.

Recovery of computer-assisted research costs as part of or in addition to attorney's fees under state law. 33 A.L.R.6th 305.

What constitutes “trial,” “final trial,” or “final hearing” under statute authorizing allowance of attorneys' fees as costs on such proceeding. 100 A.L.R.2d 397.

Costs 32.

20-12-138. Notice of motion against successful party.

In all civil cases, when motions are made against the successful party for costs accrued at the successful party's instance, and that cannot be collected from the other party, five (5) days' written notice of the time and place, and the court before which the motion is to be made, shall be given to the defendant in the motion.

Acts 1879, ch. 113, § 1; Shan., § 4946; mod. Code 1932, § 9099; T.C.A. (orig. ed.), § 20-1640.

Textbooks. Tennessee Jurisprudence, 18 Tenn. Juris., Limitations of Actions, § 17.

Cited: Morris Plan Bank v. Scott, 176 Tenn. 496, 144 S.W.2d 741, 1940 Tenn. LEXIS 93 (1940).

NOTES TO DECISIONS

1. Place for Making Motion.

The motion against the successful party for costs accrued at his instance, which cannot be collected from the other party, must be made in the particular court in which the costs accrued, and in which the suit was filed wherein the costs sued for arose. Tindell v. Robbins, 136 Tenn. 321, 189 S.W. 684, 1916 Tenn. LEXIS 134 (1916).

20-12-139. Bill of costs on appeal.

In case of appeals from the circuit or chancery court, the clerk shall make out a complete bill of costs, which shall accompany the record, and a copy of the bill of costs shall be placed upon the execution docket of the court below.

Code 1858, § 3216; Shan., § 4958; Code 1932, § 9111; T.C.A. (orig. ed.), § 20-1641.

Collateral References. 20 Am. Jur. 2d Costs §§ 91, 94.

20 C.J.S. Costs §§ 279, 368.

Costs 202-205.

20-12-140. Payments from appellate to trial court.

When the costs accrued in the appellate court, and in the court below, are paid to the clerk of the appellate court, the clerk of the appellate court shall pay so much of them as accrued in the court below to the clerk of the court and take a receipt for the payment.

Code 1858, § 3217; Shan., § 4959; Code 1932, § 9112; T.C.A. (orig. ed.), § 20-1642.

Cross-References. Duty of supreme court clerk to pay over costs, § 18-3-102.

20-12-141. Payments by clerk of trial court.

On receiving the costs as described in § 20-12-140, the clerk of the court below shall charge the clerk's office with the money, upon the clerk's execution docket, and pay it to the persons entitled to it.

Code 1858, § 3218; Shan., § 4960; Code 1932, § 9113; T.C.A. (orig. ed.), § 20-1643.

NOTES TO DECISIONS

1. Persons Entitled to Costs.

The costs of a suit belong exclusively to the witnesses, officers of the court, and the other persons in whose favor they are taxed, and may, when collected, be paid by the sheriff to them. Smith v. Van Bebber, 31 Tenn. 110, 1851 Tenn. LEXIS 28 (1851); Carey v. Campbell, 35 Tenn. 62, 1855 Tenn. LEXIS 14 (1855).

2. Costs Distributed to Wrong Party.

If the clerk of a court improperly pays to the party to the suit, nominally recovering the costs of suit, the costs taxed in favor of other persons, such persons may, by motion, recover the same from the clerk. Carey v. Campbell, 35 Tenn. 62, 1855 Tenn. LEXIS 14 (1855).

3. Part Payment — Distribution.

The party recovering costs is entitled to have the costs collected applied first to the payment of costs accrued at his instance and for which he would be liable if not collected from the opposite party; as, where the defendant recovers judgment for costs against the plaintiff and his prosecution surety to the extent of the prosecution bond, which is insufficient to cover the entire costs, and the penalty of the bond only is collected from the surety, such defendant is entitled to have such costs as accrued at his instance and for which he would be liable if not collected from the plaintiff, paid first, with the qualification as to the order of the payment. The surety for cost cannot satisfy the judgment against himself for the penalty of his bond, by paying the amount to those entitled to costs from his principal (the unsuccessful plaintiff), but the law applies it to the costs incurred by the defendant. Locke v. McFalls, 35 Tenn. 674, 1856 Tenn. LEXIS 41 (1856); Deaton v. Mulvaney, 69 Tenn. 73, 1878 Tenn. LEXIS 44 (1878).

Where only a part of the costs is paid, the clerk must pay in full as far as the amount will go, in the order following: (1) The state tax on litigation. State v. Stanley, 71 Tenn. 524, 1879 Tenn. LEXIS 110 (1879); State Tax Cases, 80 Tenn. 744, 1884 Tenn. LEXIS 159 (1884); Ex parte Griffin, 88 Tenn. 547, 13 S.W. 75, 1889 Tenn. LEXIS 75 (1890)(2) The officers of the court, and then the witnessesLocke v. McFalls, 35 Tenn. 674, 1856 Tenn. LEXIS 41 (1856).

4. Continuances — Costs Not Included.

Costs of continuances adjudged below should not be included in the bill of costs sent up to the appellate court, but should be collected in the court below. Ross v. McCarty, 22 Tenn. 169, 1842 Tenn. LEXIS 58 (1842).

20-12-142. Construction as remedial.

The law of costs shall be construed remedially and not as the penal law.

Code 1858, § 3219 (deriv. Acts 1801, ch. 6, § 65); Shan., § 4961; Code 1932, § 9114; T.C.A. (orig. ed.), § 20-1644.

Cited: Barrett v. Town of Nolensville, — S.W.3d —, 2011 Tenn. App. LEXIS 119 (Tenn. Ct. App. Mar. 10, 2011).

20-12-143. General sessions courts — Collection of costs.

  1. It is the duty of the clerk of the court of general sessions, not less than thirty (30) days after the judgments of the court of general sessions have become final, to issue an execution against the party against whom the costs have been adjudged.
  2. Likewise, in case of inability to collect the costs from the party against whom they have been adjudged, evidenced by the return of an execution nulla bona, it shall be the duty of the clerk, not later than thirty (30) days after the return of the execution nulla bona, to undertake to collect from the successful party all costs accruing at the instance of the successful party.

Acts 1959, ch. 109, § 3; T.C.A., § 20-1645.

Law Reviews.

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

20-12-144. Collection of fines or costs in default.

  1. If any portion of the court costs or litigation taxes, or both, have not been paid within six (6) months after the adjudication of a civil case, the clerk of the court may retain an agent to collect or institute proceedings to collect the costs or taxes, or both.
  2. If an agent is used, the clerk of the court shall use the county's normal competitive bidding procedures to select and retain the agent. The clerk of the court shall award the bid with the approval of the judge of the affected court.
    1. The clerk may retain up to fifty percent (50%) of any portion of the court costs or litigation taxes, or both, which have not been paid within six (6) months after the adjudication of a civil case in accordance with any in-house collection procedure or, if an agent is used, for the collection agent, which may be allocated from each payment made on the amounts owing for such civil costs and taxes. The proceeds from any in-house collection shall be treated as other fees of the office.
    2. On or after January 1, 2015, if an agent is used, the agent's collection fee shall be added to the total amount owed. The agent's collection fee shall not exceed forty percent (40%) of any amounts actually collected, which may be allocated from each payment made on the amounts owing for such civil costs and taxes.

Acts 1992, ch. 676, § 1; 1993, ch. 440, § 1; 2014, ch. 737, §§ 3, 4.

Compiler's Notes. Pursuant to Article III, Section 18 of the Constitution of Tennessee, Acts 2014, ch. 737 took effect on April 21, 2014.

Acts 2014, ch. 737, § 8 provided that the additional fee if a collection agent is used shall apply to all amounts that have been owed for at least six (6) months on January 1, 2015, or become owed for at least six (6) months after January 1, 2015, whether the case was adjudicated prior to, or on or after, April 21, 2014.

Acts 2014, ch. 737, § 5 provided that any changes to a court clerk's computer system or software necessitated by the use of a collection agent under this act, which amended subsection (c), shall be paid for by funds collected by the clerk for computer related expenses pursuant to § 8-21-401(j) to the extent such funds are available. No state funds shall be allocated to make any changes to a court clerk's computer system or software necessitated by this act.

Acts 2014, ch. 737, § 6 provided that this act, which amended subsection (c), is remedial in nature and is intended to assist court clerks with the administrative costs and difficulties associated with the collection of delinquent fines, costs and litigation taxes.

Amendments. The 2014 amendment rewrote (c) which read: “The clerk may retain up to fifty percent (50%) of any portion of the court costs or litigation taxes, or both, which have not been paid within six (6) months after the adjudication of a civil case in accordance with any in-house collection procedure or, if an agent is used, for the collection agent, which may be allocated from each payment made on the amounts owing for such civil costs and taxes. The proceeds from any in-house collection shall be treated as other fees of the office.”

Effective Dates. Acts 2014, ch. 737, § 8. April 21, 2014. [See the Compiler's Notes.]

Attorney General Opinions. Collection of fines and costs, OAG 96-049 (3/15/96).

Retention of delinquent court costs, OAG 97-042 (4/7/97).

Cited: O'Neill v. Parks, — S.W.3d —, 2008 Tenn. App. LEXIS 568 (Tenn. Ct. App. Sept. 29, 2008).

NOTES TO DECISIONS

1. Litigation Taxes.

One method by which a clerk of the court may collect outstanding litigation taxes is through issuance of a distress warrant that is addressed and delivered to the sheriff or constable of the county in which property of such taxpayer may be found. Fletcher v. State, 9 S.W.3d 103, 1999 Tenn. LEXIS 678 (Tenn. 1999).

Chapter 13
Actions by and Against State

20-13-101. Power to prosecute suits.

The state shall commence and prosecute suits according to the laws of the land, as in cases between individuals, except that no security shall, in such case, be required.

Code 1858, § 2806 (deriv. Acts 1839-1840, ch. 139, § 2); Shan., § 4506; Code 1932, § 8633; T.C.A. (orig. ed.), § 20-1701.

Cross-References. Advancement on docket of cases involving state, § 20-8-106.

Payment of costs, § 20-12-134.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 123.

Tennessee Jurisprudence, 6  Tenn. Juris., Constitutional Law, § 58.

Law Reviews.

Judgments and Appeal, 4 Mem. St. U.L. Rev. 373.

Comparative Legislation. Actions by and against state:

Ala.  Code § 6-5-1 et seq.

Ark.  Code § 16-106-101.

Ga. O.C.G.A. §§ 9-10-2, 45-12-26.

Ky. Rev. Stat. Ann. § 15.060.

Miss.  Code Ann. § 11-45-1 et seq.

Mo. Rev. Stat. §§ 27.050, 27.060.

N.C. Gen. Stat. §§ 143-300.14, 147-89.

Va.  Code § 8.01-192 et seq.

Cited: State ex rel. Estes v. Persica, 130 Tenn. 48, 168 S.W. 1056, 1914 Tenn. LEXIS 3 (1914).

NOTES TO DECISIONS

1. County Officials Not Covered.

This section applies to the state only; and an appeal bond for costs in motions by county officials for county revenue is necessary to authorize and perfect the appeal by them. Davis v. Hansard, 28 Tenn. 173, 1848 Tenn. LEXIS 66 (1848).

Collateral References. 72 Am. Jur. 2d States, Territories and Dependencies §§ 90-98.

1 C.J.S. Actions §§ 1, 18; 81A C.J.S. States § 3.

Attorney's authority to compromise action — modern cases. 90 A.L.R.4th 326.

Attorney's compensation for services in action against state, amount of. 143 A.L.R. 850, 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.

Contributory negligence as defense to action by state. 1 A.L.R.2d 827.

Substitution by amendment of state for officer or board. 135 A.L.R. 338.

States 190-215.

20-13-102. Actions against state prohibited.

  1. No court in the state shall have any power, jurisdiction or authority to entertain any suit against the state, or against any officer of the state acting by authority of the state, with a view to reach the state, its treasury, funds or property, and all such suits shall be dismissed as to the state or such officers, on motion, plea or demurrer of the law officer of the state, or counsel employed for the state.
  2. No statutory or other provision authorizing the University of Tennessee and its board of trustees to sue and be sued shall constitute a waiver of sovereign immunity.

Acts 1873, ch. 13, § 2; Shan., § 4507; Code 1932, § 8634; Acts 1977, ch. 170, § 1; T.C.A. (orig. ed.), § 20-1702.

Cross-References. Sovereign immunity of state in comparative fault litigation, § 20-1-199. s

Personal service on the state or any agency thereof, Tenn. R. Civ. P. 4.04(8).

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

Tennessee Jurisprudence, 3  Tenn. Juris., Attachment and Garnishment, §§ 140, 144; 10  Tenn. Juris., Ejectment, § 12; 18  Tenn. Juris., Mandamus, §§ 13, 14, 25; 22  Tenn. Juris., State, §§ 13, 14.

Law Reviews.

Bivens-type Actions Under State Constitutions — Will Tennessee Give You a Remedy?, 30 U. Mem. L. Rev. 409 (2000).

Claims Against States, 7 Vand. L. Rev. 234.

Claims Against the State in Tennessee — The Board of Claims, 4 Vand. L. Rev. 875.

Policing the Police: Clarifying the Test for Holding the Government Liable Under 42 U.S.C. § 1983 and the State-Created Danger Theory, 54 Vand. L. Rev. 165 (2001).

Sovereign Immunity and the Tennessee Governmental Tort Liability Act (John C. Cook), 41 Tenn. L. Rev. 885.

States — Suits Against State Officers, 15 Tenn. L. Rev. 253.

Tort Liability of Public Officers in Tennessee, 21 Tenn. L. Rev. 306.

Torts — Hurd v. Woolfork: The Public Duty Doctrine in Tennessee, 28 U. Mem. L. Rev. 1279 (1998).

Trial, 4 Mem. St. U.L. Rev. 335.

Attorney General Opinions. The Uniform Trade Secrets Act does not authorize an action for civil remedies against the state or state employees; the doctrine of sovereign immunity dictates that a lawsuit brought under the Uniform Trade Secrets Act against the state or a state employee would be barred, OAG 00-115 (6/27/00).

Neither T.C.A. § 68-201-115 nor any other provision of the Tennessee Air Quality Act waives sovereign immunity by explicitly making state agencies subject to qualified local air pollution control programs. The Tennessee Air Pollution Control Board does not have the authority to waive the state’s sovereign immunity as that authority is reserved solely to the General Assembly.  OAG 10-86, 2010 Tenn. AG LEXIS 92 (7/13/10).

NOTES TO DECISIONS

1. Construed with Constitution.

A suit against the state of Tennessee is barred by Tenn. Const. art. I, § 17 when it is not brought in such manner as the legislature has directed in this section. Chumbley v. State, 183 Tenn. 467, 192 S.W.2d 1007, 1946 Tenn. LEXIS 226 (1946).

A suit against a state official in that person's official capacity is a suit against the state, and therefore, must be brought in compliance with Tenn. Const. art. I, § 17. Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 2000 Tenn. App. LEXIS 171 (Tenn. Ct. App. 2000).

2. Judicial Modification of Rule Prohibited.

The rule of sovereign immunity in Tennessee is both constitutional and statutory; it is not within the power of the courts to amend it. Jones v. L & N R. Co., 617 S.W.2d 164, 1981 Tenn. App. LEXIS 497 (Tenn. Ct. App. 1981).

Appellate court declined a request by the surviving spouse of a deceased patient for prospective application only of the decision in Cunningham because granting the request would have resulted in an extension to the twelve-month statute of limitations specifically provided under the Tennessee Governmental Tort Liability Act, T.C.A. § 29-20-101 et seq., and a waiver of the State of Tennessee's sovereign immunity. Miller ex rel. Miller v. Cookeville Reg'l Med. Ctr., — S.W.3d —, 2015 Tenn. App. LEXIS 796 (Tenn. Ct. App. Sept. 29, 2015).

3. Extent of Prohibition.

General assembly has chosen not to waive sovereign immunity under the circumstances where a state college or university professor seeks back pay or other monetary relief for wrongful dismissal; moreover, any abrogation of the immunity doctrine by the legislature must be set out in plain, clear, and unmistakable terms. Wells v. Tenn. Bd. of Regents, 231 S.W.3d 912, 2007 Tenn. LEXIS 647 (Tenn. Aug. 17, 2007), cert. denied, 169 L. Ed. 2d 732, 128 S. Ct. 928, 552 U.S. 1101, 2008 U.S. LEXIS 50 (U.S. 2008).

4. —Generally.

By the statute all jurisdiction to entertain suits against the state, without limitation or qualification, is taken from the courts. Riddle, Coleman & Co. v. State, 3 Shan. 529 (1875); Walters v. State, 2 Shan. 69 (1876); Collier v. Goessling, 160 F. 604, 1908 U.S. App. LEXIS 4227 (6th Cir. 1908), cert. denied, 215 U.S. 596, 30 S. Ct. 399, 54 L. Ed. 342, 1909 U.S. LEXIS 1979 (1909).

The principle is elementary that a state cannot be sued in its own courts without its consent. Railroad Co. v. Tennessee, 101 U.S. 337, 25 L. Ed. 960, 1879 U.S. LEXIS 1923 (1880).

The express declaration of the Constitution that “suits may be brought against the state in such manner and in such courts as the legislature may by law direct,” carries with it a positive implication that they shall not be brought otherwise, or at all, unless legislative authority therefor be affirmatively given. North British & Mercantile Co. v. Craig, 106 Tenn. 621, 62 S.W. 155, 1900 Tenn. LEXIS 197 (1901); Quinton v. Board of Claims, 165 Tenn. 201, 54 S.W.2d 953, 1932 Tenn. LEXIS 38 (1932).

The state may not be sued unless the words of the statute are so unmistakable as to leave no doubt of legislative intent that the state may be subjected to litigation. Phillips v. Marion County, 166 Tenn. 83, 59 S.W.2d 507, 1932 Tenn. LEXIS 116 (1933); Sweeney v. State Dep't of Transp., 744 S.W.2d 905, 1987 Tenn. App. LEXIS 2853 (Tenn. Ct. App. 1987).

This section is a general denial of jurisdiction of any suit against the state or its officers to reach its treasury, funds, or property, and directs that any such suit shall be dismissed on motion. Corporation of Sevierville v. Trotter, 170 Tenn. 431, 95 S.W.2d 920, 1935 Tenn. LEXIS 148 (1936).

Suits to recover money from the state cannot be maintained unless legislative authority therefor be affirmatively given. Daugherty v. S. & W. Const. Co., 196 Tenn. 357, 268 S.W.2d 94, 1954 Tenn. LEXIS 389 (1954).

Jurisdiction of board of claims to adjudicate claims against state must be strictly construed and cannot be enlarged by implication. Hill v. Beeler, 199 Tenn. 325, 286 S.W.2d 868, 1956 Tenn. LEXIS 329 (1956).

Doctrine of sovereign immunity prevails under Tennessee law and suits against state are prohibited. Hill v. United States, 453 F.2d 839, 1972 U.S. App. LEXIS 11853, 15 A.L.R. Fed. 658 (6th Cir. Tenn. 1972).

The rule of sovereign immunity in Tennessee is both constitutional and statutory. It is not within the power of the courts to amend it. Austin v. Memphis, 684 S.W.2d 624, 1984 Tenn. App. LEXIS 3086 (Tenn. Ct. App. 1984), aff'd in part, rev'd in part, Austin v. State, 796 S.W.2d 449, 1990 Tenn. LEXIS 299 (Tenn. 1990).

Private contributions, as well as revenues generated by a department of a state educational institution, become state funds and are thus protected by the sovereign immunity of a state. Greenhill v. Carpenter, 718 S.W.2d 268, 1986 Tenn. App. LEXIS 3582 (Tenn. Ct. App. 1986).

University employee's suit against state university, seeking reinstatement, back-pay, employment benefits, and attorney's fees, came within the prohibition of this section. Stokes v. University of Tennessee, 737 S.W.2d 545, 1987 Tenn. App. LEXIS 2757 (Tenn. Ct. App. 1987), cert. denied, 485 U.S. 935, 108 S. Ct. 1110, 99 L. Ed. 2d 271, 1988 U.S. LEXIS 1097 (1988).

The state of Tennessee has expressly preserved its sovereign immunity. Hair v. Tennessee Consol. Retirement System, 790 F. Supp. 1358, 1992 U.S. Dist. LEXIS 16549 (M.D. Tenn. 1992).

Under T.C.A. §§ 9-8-307(a) and 20-13-102, the state, generally shielded from suit under well-established principles of sovereign immunity, did not consent to be sued in Hamilton county circuit court, and the trial court therefore did not have jurisdiction to hear the police officer's action against the state of Tennessee, judge, and prosecutors in their official capacities as state employees. Parks v. State, — S.W.3d —, 2007 Tenn. App. LEXIS 89 (Tenn. Ct. App. Feb. 20, 2007), appeal denied, — S.W.3d —, 2007 Tenn. LEXIS 723 (Tenn. Aug. 13, 2007).

Trial court did not err in dismissing a father's lawsuit against the State of Tennessee, the Tennessee Department of Human Services, and the Assistant Commissioner of the Child Support Services Division of the Tennessee Department of Human Services as barred by sovereign immunity because the Father failed to make out any cognizable claim for a violation of 42 U.S.C. § 1983; even assuming, that the father made out a cognizable claim neither the State, the Department, nor the assistant were “persons” within the meaning of § 1983. Payne v. State Dep't of Human Servs., — S.W.3d —, 2012 Tenn. App. LEXIS 846 (Tenn. Ct. App. Dec. 10, 2012).

Trial court did not err in dismissing a father's lawsuit against the State of Tennessee, the Tennessee Department of Human Services, and the Assistant Commissioner of the Child Support Services Division of the Tennessee Department of Human Services as barred by sovereign immunity because the father's complaints were filed in State court and sought only monetary damages; the father sought damages for alleged wrongful actions committed by the Assistance while he was acting in his official capacity. Payne v. State Dep't of Human Servs., — S.W.3d —, 2012 Tenn. App. LEXIS 846 (Tenn. Ct. App. Dec. 10, 2012).

5. —Suits Against Officers.

A suit against a commissioner of highways is a suit against the state. A. L. Kornman Co. v. Moulton, 210 Tenn. 491, 360 S.W.2d 30, 1962 Tenn. LEXIS 311 (1962), appeal dismissed, A. L. Kornman Co. v. Pack, 373 U.S. 63, 83 S. Ct. 1118, 10 L. Ed. 2d 197, 1963 U.S. LEXIS 1699 (1963). See, however,, Hewgley v. Trice, 207 Tenn. 466, 340 S.W.2d 918, 1960 Tenn. LEXIS 482 (1960), where court refused to sustain plea of res judicata upon second suit under eminent domain statutes alleging unlawful taking after alleged abandonment of easement.

A suit against a state official in his official capacity is a “suit against the state.” Cox v. State, 217 Tenn. 644, 399 S.W.2d 776, 1965 Tenn. LEXIS 552 (1965).

State courts have no jurisdiction to hear declaratory judgment action against commissioner of revenue. Northern Telecom, Inc. v. Taylor, 781 S.W.2d 837, 1989 Tenn. LEXIS 526 (Tenn. 1989), cert. denied, 496 U.S. 905, 110 S. Ct. 2587, 110 L. Ed. 2d 268, 1990 U.S. LEXIS 2907 (1990).

Probationary employee of the department of mental health and mental retardation [department of mental health and developmental disabilities] was barred by sovereign immunity from suing state officials for monetary relief for wrongful discharge. Cashion v. Robertson, 955 S.W.2d 60, 1997 Tenn. App. LEXIS 198 (Tenn. Ct. App. 1997), rehearing denied, — S.W.2d —, 1997 Tenn. App. LEXIS 241 (Tenn. Ct. App. Apr. 11, 1997).

When arrestee was charged with rape of a child, but the charge was later dismissed, arrestee's suit alleging negligence in investigation of the underlying matter was properly dismissed because jurisdiction was exclusive to the Tennessee claims commission. Newell v. Maitland, — S.W.3d —, 2008 Tenn. App. LEXIS 300 (Tenn. Ct. App. May 21, 2008), appeal denied, — S.W.3d —, 2008 Tenn. LEXIS 921 (Tenn. Dec. 1, 2008).

In a 42 U.S.C. § 1983 case in which a pro se father argued that his suit against the Tennessee Department of Children's Services was not barred by the doctrine of sovereign immunity because the Tennessee Constitution preserved his right to sue the state, that argument failed. While Tenn. Const. art. I, § 17 provided that suits could be brought against the state in such manner and in such courts as the Legislature may by law direct, in T.C.A. § 20-13-102(a), the Tennessee General Assembly had expressly forbidden any party from suing the state or a state officer with a view to reach the state, its treasury, funds, or property. Murphy v. Humphreys County Juvenile Court, — F. Supp. 2d —, 2009 U.S. Dist. LEXIS 85788 (M.D. Tenn. Sept. 18, 2009).

Debtor who failed to pay appellate court costs and whose car was subsequently seized and sold by the sheriff failed to state a claim against the sheriff for “carjacking.” The sheriff was immune from suit, and the duty to execute and return process under T.C.A. § 8-8-201 was not an operational decision. Millen v. Shelby County Sheriff's Office, — S.W.3d —, 2010 Tenn. App. LEXIS 704 (Tenn. Ct. App. Nov. 10, 2010).

Chancery court properly dismissed defendant's declaratory judgment action seeking to enjoin his execution on the ground he met the criteria for intellectual disability because sovereign immunity barred the suit; defendant's allegations, in the absence of a claim that the statute being enforced was unconstitutional, were not sufficient to state a claim against the warden and Attorney General in their individual capacities for the purposes of granting relief to defendant. Payne v. Carpenter, — S.W.3d —, 2016 Tenn. App. LEXIS 556 (Tenn. Ct. App. Aug. 2, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 877 (Tenn. Nov. 16, 2016).

Denial of a motion to dismiss a former state employee's compliant was appropriate because, although subject matter jurisdiction was challenged based on sovereign immunity, the factual allegations in the employee's complaint, taken as true, supported jurisdiction as the complaint was against the Commissioner of the Tennessee Department of General Services and alleged that the Commissioner was not acting by authority of the State of Tennessee in failing to pay the employee the full wages to which the employee was entitled. Arnold v. Oglesby, — S.W.3d —, 2017 Tenn. App. LEXIS 760 (Tenn. Ct. App. Nov. 22, 2017).

6. —State's Power over Court's Jurisdiction.

The power to decide what class of suits the courts may take cognizance of, directly or indirectly, is vested in the state. General Oil Co. v. Crain, 117 Tenn. 82, 95 S.W. 824, 1906 Tenn. LEXIS 32, 121 Am. St. Rep. 967 (1906), aff'd, 209 U.S. 211, 28 S. Ct. 475, 52 L. Ed. 754, 1908 U.S. LEXIS 1728 (1908).

Unless the state has expressly consented to be sued, sovereign immunity bars a court from entertaining any suit against the state. Woolsey v. Hunt, 932 F.2d 555, 1991 U.S. App. LEXIS 9001 (6th Cir. Tenn. 1991), cert. denied, 502 U.S. 867, 112 S. Ct. 195, 116 L. Ed. 2d 155, 1991 U.S. LEXIS 4568 (1991), cert. denied, McCrackin v. United States, 116 L. Ed. 2d 155, 112 S. Ct. 195, 502 U.S. 867, 1991 U.S. LEXIS 4471 (1991).

7. —County — Rights Against State.

Where a county has improperly paid a duly certified bill of costs taxed against it, in a felony case, for which the state and not the county was liable, it cannot subsequently recover of the state the amount thus paid. State v. Odom, 93 Tenn. 446, 25 S.W. 105, 1893 Tenn. LEXIS 71 (1894); State v. Ledford, 93 Tenn. 451, 25 S.W. 106, 1893 Tenn. LEXIS 72 (1893).

8. —Breach of Executory Contract.

Action cannot be maintained against the state, whether directly or through its official, for breach of authorized but executory contract. State ex rel. Day Pulverizer Co. v. Fitts, 166 Tenn. 156, 60 S.W.2d 167, 1932 Tenn. LEXIS 125 (1933), vacated, Rescar, Inc. v. Ward, 2003 Tex. LEXIS 1 (Tex. Jan. 7, 2003).

9. —Implied Contract Claims.

Tennessee does not recognize the enforcement of implied contract claims against the state. Woolsey v. Hunt, 932 F.2d 555, 1991 U.S. App. LEXIS 9001 (6th Cir. Tenn. 1991), cert. denied, 502 U.S. 867, 112 S. Ct. 195, 116 L. Ed. 2d 155, 1991 U.S. LEXIS 4568 (1991), cert. denied, McCrackin v. United States, 116 L. Ed. 2d 155, 112 S. Ct. 195, 502 U.S. 867, 1991 U.S. LEXIS 4471 (1991).

10. —Board of Claims — Finality of Action.

The action of the board of claims is final and a claimant may not resort to certiorari under title 27, ch. 9, for reviews of adverse action. Quinton v. Board of Claims, 165 Tenn. 201, 54 S.W.2d 953, 1932 Tenn. LEXIS 38 (1932).

11. —Garnishment Against Employees.

Relationship of debtor and creditor does not exist between the state and its employees, in the sense of garnishment laws; salary and wages of employees remain state funds until disbursed, and no suit can be brought to garnishee such salary or wages. State ex rel. Allen v. Cook, 171 Tenn. 605, 106 S.W.2d 858, 1937 Tenn. LEXIS 143 (1937).

Although former statute permitted garnishment of wages of state employee for unsatisfied final judgment, it did not authorize commencement of suit against state employee by attachment or attachment by garnishment to reach wages due employee. Brewington v. Brewington, 215 Tenn. 475, 387 S.W.2d 777, 1965 Tenn. LEXIS 666 (1965).

12. —Made Defendant Without Consent.

Where a county filed a petition for condemnation and without authority used the name of the state and its highway commissioner as copetitioners, and later amended by seeking to bring the state and commissioner before the court without their consent to satisfy any judgment rendered, this was in effect an adversary proceeding forbidden by this section. State Dep't of Highways v. Roseborough, 17 Tenn. App. 403, 68 S.W.2d 132, 1933 Tenn. App. LEXIS 75 (Tenn. Ct. App. 1933).

13. —Nuisances.

Suit against department of transportation alleging that the department had negligently created and willfully maintained a defective, unsafe and dangerous highway condition which posed a nuisance to the public was properly dismissed under subsection (a) of this section. Sweeney v. State Dep't of Transp., 744 S.W.2d 905, 1987 Tenn. App. LEXIS 2853 (Tenn. Ct. App. 1987).

14. —Condemnation Disputes.

Suit cannot be maintained against the state or its department of highways (now bureau of highways within department of transportation) to recover damages for land taken for construction of a state highway, there being no authority therefor in any statute. Enforcement is left to the discretion of the commissioner of that department, but mandamus lies to force compliance when right to compensation is clear and facts not subject to dispute, so that an exercise of discretion is not involved. Phillips v. Marion County, 166 Tenn. 83, 59 S.W.2d 507, 1932 Tenn. LEXIS 116 (1933).

Notwithstanding the provisions of § 54-5-111, this section prohibited action against the state or its department of highways for damages from the taking of land for highways. State Dep't of Highways v. Roseborough, 17 Tenn. App. 403, 68 S.W.2d 132, 1933 Tenn. App. LEXIS 75 (Tenn. Ct. App. 1933).

Where counsel for a county without authority joined the state and its commissioner of highways as petitioners in a condemnation proceeding, a judgment rendered against the state was void. State Dep't of Highways v. Roseborough, 17 Tenn. App. 403, 68 S.W.2d 132, 1933 Tenn. App. LEXIS 75 (Tenn. Ct. App. 1933).

See as to governing rules: State Dep't of Highways v. Roseborough, 17 Tenn. App. 403, 68 S.W.2d 132, 1933 Tenn. App. LEXIS 75 (Tenn. Ct. App. 1933); Department of Highways & Public Works v. Gamble, 18 Tenn. App. 95, 73 S.W.2d 175, 1934 Tenn. App. LEXIS 16 (Tenn. Ct. App. 1934).

Suit by property owner to recover possession of land from state acquired in eminent domain proceeding was properly dismissed, since suit cannot be filed against the state unless brought in manner directed by legislature. Chumbley v. State, 183 Tenn. 467, 192 S.W.2d 1007, 1946 Tenn. LEXIS 226 (1946).

Complainant could not mandamus state to exercise power of eminent domain as to property of complainant allegedly taken over by the state since he had an adequate remedy under § 29-16-123. Fritts v. Leech, 201 Tenn. 18, 296 S.W.2d 834, 1956 Tenn. LEXIS 458 (1956).

Provision is made in § 54-5-106 for suit against the county where land is taken for state highway purposes and therefore there is no violation of Tenn. Const., art. I, § 21 or U.S. Const., amend. 14 in prohibiting suit against the state. Brooksbank v. Leech, 206 Tenn. 176, 332 S.W.2d 210, 1959 Tenn. LEXIS 333 (1959).

Suit against commissioner of highways to quiet title as to land previously obtained by city for benefit of state and conveyed to state was suit against state within the meaning of this section. A. L. Kornman Co. v. Moulton, 210 Tenn. 491, 360 S.W.2d 30, 1962 Tenn. LEXIS 311 (1962), appeal dismissed, A. L. Kornman Co. v. Pack, 373 U.S. 63, 83 S. Ct. 1118, 10 L. Ed. 2d 197, 1963 U.S. LEXIS 1699 (1963). See, however, Williams v. Southern Bell Tel. & Tel. Co., 164 Tenn. 313, 47 S.W.2d 758, 1931 Tenn. LEXIS 36 (1932), where court refused to sustain plea of res judicata upon second suit under eminent domain statutes alleging unlawful taking after alleged abandonment of easement.

Where game and fish commission acquired lands by purchase suit in equity by persons claiming to be owners of the land to have such deed set aside and removed as a cloud upon complainants' title was improper, the sole remedy of complainant being for damages under a reverse condemnation action under § 29-16-123. Cox v. State, 217 Tenn. 644, 399 S.W.2d 776, 1965 Tenn. LEXIS 552 (1965).

Reverse condemnation action under § 29-16-123 will not lie against the state. Jones v. Cocke County, 57 Tenn. App. 496, 420 S.W.2d 587, 1967 Tenn. App. LEXIS 240 (Tenn. Ct. App. 1967).

Landowner in inverse condemnation action lacked specific statutory authority to file suit against the state. Hise v. State, 968 S.W.2d 852, 1997 Tenn. App. LEXIS 680 (Tenn. Ct. App. 1997).

15. —Ejectment and Suits in Nature of Ejectment.

Bill alleging that department of highways and public works had taken over complainant's land and was asserting title thereto and asking for writ of mandamus to put complainant in possession and for injunction against state to restrain interference in effect alleged that both complainant and the state were asserting title to the land and that the state was in possession was in this respect in the nature of an ejectment suit against the state and as such was in violation of this section as seeking to reach the property of the state. Fritts v. Leech, 201 Tenn. 18, 296 S.W.2d 834, 1956 Tenn. LEXIS 458 (1956).

16. —Tax Refund Suit.

Insurance company was not entitled to collect interest from state in tax refund suit where state collected tax on “gross premium receipts” without allowing deduction for dividends. New England Mut. Life Ins. Co. v. Reece, 169 Tenn. 84, 83 S.W.2d 238, 1935 Tenn. LEXIS 19 (1935).

17. —Interest on State Bonds.

Repeal of Acts 1855-56, ch. 113, §§ 1, 2 permitting suits against the state by Acts 1865, ch. 36, § 34 withdrawing remedy of suit against the state barred suit by railroad against state to recover interest on state bonds paid by railroad to the Bank of Tennessee, where suit was instituted after repeal though interest was paid prior to repeal, since court did not have jurisdiction of such a suit following repeal, and furthermore railroad had its remedy by means of the legislature. State v. Bank of Tennessee, 62 Tenn. 395, 1874 Tenn. LEXIS 67 (1874).

18. State May Be Sued.

Carrier was not seeking to reach the state treasury, state funds, or state property; instead, the carrier was seeking a declaratory judgment that the present tax scheme was unconstitutional, and thus it was permissible for the carrier to commence and maintain a declaratory judgment action against the state. Colonial Pipeline Co. v. Morgan, — S.W.3d —, 2007 Tenn. App. LEXIS 408 (Tenn. Ct. App. July 2, 2007), aff'd, 263 S.W.3d 827, 2008 Tenn. LEXIS 589 (Tenn. Sept. 9, 2008).

19. —Waiver.

Where, in a suit begun by a county to condemn land for a state highway, an order is entered by the officers of the state's legal department substituting the state for the county, that was the entry of a general appearance which precluded the state from thereafter relying upon immunity from suit. Jackson County v. McGlasson, 167 Tenn. 311, 69 S.W.2d 887, 1934 Tenn. LEXIS 2 (1934).

The language in § 64-1-204 allowing the Chickasaw Basin Authority to sue and be sued in corporate name is not a waiver of sovereign immunity. Austin v. Memphis, 684 S.W.2d 624, 1984 Tenn. App. LEXIS 3086 (Tenn. Ct. App. 1984), aff'd in part, rev'd in part, Austin v. State, 796 S.W.2d 449, 1990 Tenn. LEXIS 299 (Tenn. 1990).

Dismissal of a claim under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. §§ 4301-4334, was proper because, for an individual to sustain an action against a state pursuant to USERRA, the action must have been permitted by state law, and the Tennessee general assembly had not passed legislation to expressly waive its sovereign immunity from claims based on USERRA; appellant's claim that the state of Tennessee had impliedly waived its immunity from USERRA claims by expressly waiving its immunity from claims under the Tennessee Human Rights Act, T.C.A. § 4-21-101 et seq., and the Tennessee Disability Act, T.C.A. § 8-50-103(a), was misplaced because any such waiver had to be made in plain, clear, and unmistakable terms. The Tennessee National Guard was a division of the Tennessee Military Department, and thus was an entity of the state of Tennessee, and accordingly, the Tennessee National Guard had immunity from claims arising under the USERRA. Smith v. Tenn. Nat'l Guard, 387 S.W.3d 570, 2012 Tenn. App. LEXIS 552 (Tenn. Ct. App. Aug. 8, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 871 (Tenn. Nov. 21, 2012), cert. denied, at’l Guard, 185 L. Ed. 2d 365, 133 S. Ct. 1471, 568 U.S. 1195, 2013 U.S. LEXIS 1807 (U.S. 2013).

State of Tennessee and a town were entitled to dismissal in a property owner's suit to condemn an easement or right-of-way to access landlocked property because the statutory scheme on which the owner relied did not contain an explicit waiver of sovereign immunity. Bratcher v. Hubler, 508 S.W.3d 206, 2015 Tenn. App. LEXIS 833 (Tenn. Ct. App. Oct. 12, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 155 (Tenn. Feb. 18, 2016).

Court of appeals erred in reversing the dismissal of a claim filed by a former Lieutenant Colonel in the National Guard under Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) because the Lieutenant had actual knowledge that he had suffered an injury sometime before August 8, 2011; therefore, his claim remained barred by sovereign immunity because T.C.A. § 29-20-208 limited the waiver of sovereign immunity to USERRA claims accruing on or after July 1, 2014. Smith v. Tenn. Nat'l Guard, 551 S.W.3d 702, 2018 Tenn. LEXIS 318 (Tenn. June 22, 2018).

City was entitled to summary judgment on a contractor's contract and estoppel claims, when a real estate developer hired the contractor to upgrade a sewer system, the city approved the upgrade project, and the developer went bankrupt before the completion of the project, because there was no contract between the contractor and the city and the doctrine of sovereign immunity applied. Harakas Constr., Inc. v. Metro. Gov't of Nashville, — S.W.3d —, 2018 Tenn. App. LEXIS 45 (Tenn. Ct. App. Jan. 29, 2018).

20. —Corporation Owned by State.

A corporation, in which the state is the sole owner and stockholder, is not exempt from suit for its liabilities. Hutchinson v. Western & A. R. Co., 53 Tenn. 634, 1871 Tenn. LEXIS 406 (1871); Moore v. Tate, 87 Tenn. 725, 11 S.W. 935, 1889 Tenn. LEXIS 22, 10 Am. St. Rep. 712 (1889).

Where a state university, to which governmental immunity attached, owned an independently incorporated publishing enterprise, that enterprise did not come under the blanket of governmental immunity in a libel action against it. Applewhite v. Memphis State University, 495 S.W.2d 190, 1973 Tenn. LEXIS 487 (Tenn. 1973).

21. —Replevin for Seized Property.

A replevin action against employees of the state department of finance and taxation to recover tobacco seized as contraband goods under Acts 1933, ch. 58 and Acts 1936 (E.S.), ch. 46 was not a suit against the state within the inhibited class since it was a suit to recover possession of property of the plaintiffs to which neither the state nor its employees assert any claim of ownership or possession except the right of confiscation so that such suit is not brought with a view to reach the state, its treasury, funds or property. Stockton v. Morris & Pierce, 172 Tenn. 197, 110 S.W.2d 480, 1937 Tenn. LEXIS 70 (1937).

22. —State Action Under Unconstitutional Act.

A suit against officials of the state attacking the constitutionality of a statute under which they acted is not a suit against the state or against an official acting under the authority of the state. Stockton v. Morris & Pierce, 172 Tenn. 197, 110 S.W.2d 480, 1937 Tenn. LEXIS 70 (1937); Cornelius v. McWilliams, 641 S.W.2d 508, 1982 Tenn. App. LEXIS 494 (Tenn. Ct. App. 1982).

A replevin action by a wholesale tobacco dealer against employees of the state department of finance and taxation to recover tobacco seized as contraband goods under Acts 1933, ch. 58 and Acts 1936 (E.S.), ch. 46 on grounds that the acts under which the goods were seized were unconstitutional was not a suit against the state in the sense that it would be barred by the Constitution and statutes since an official acting under an unconstitutional act is not acting by the authority of the state. Stockton v. Morris & Pierce, 172 Tenn. 197, 110 S.W.2d 480, 1937 Tenn. LEXIS 70 (1937).

23. —Fair Labor Standards Act.

Where former residents of a state hospital sued for unpaid wages under the Federal Fair Labor Standards Act (29 U.S.C. § 203(d) and 29 U.S.C. § 216(b)), the court held that the state could not defeat such suit by pleading sovereignty under this section, Tenn. Const. art. I, § 17 or art. II, § 24, or U.S. Const. amend. 11, since, by empowering congress under the constitution to regulate commerce, the states relinquished their sovereignty to the extent necessary to permit the reasonable enforcement of such regulation. Clover Bottom Hospital & School v. Townsend, 513 S.W.2d 505, 1974 Tenn. LEXIS 463 (Tenn. 1974), dismissed, 421 U.S. 1007, 95 S. Ct. 2410, 44 L. Ed. 2d 675, 1975 U.S. LEXIS 1879 (1975).

24. —Civil Rights Violations.

A municipal corporation is not accorded an immunity for good-faith actions in defense of a claim of deprivation of civil rights. Keebler v. Johnson City Power Board, 505 F. Supp. 521, 1980 U.S. Dist. LEXIS 16035 (E.D. Tenn. 1980).

25. Obligations of County.

In case the liability of a county for the value of a right-of-way taken by the state in its name is clearly established, it becomes the duty of the state to reimburse the county in obedience to §§ 54-5-111, 54-5-112, by which the state assumed all such obligations, and the defense of the statute of limitations by the state relates to the landowner's claim for compensation and is not available to relieve the state of its obligation to the county. Stubblefield v. Warren County, 170 Tenn. 211, 93 S.W.2d 1269, 1935 Tenn. LEXIS 129 (1936).

26. Injunction.

Action of state in bringing suit to enjoin owners of land situated on road leading into road closed at controlled access interstate highway from cutting fence along interstate highway and crossing highway at closed road conferred no right on landowners to bring cross-bill to enjoin commissioner of highways from maintaining such fence and to compel him to build another access road for landowners. State ex rel. Moulton v. Williams, 207 Tenn. 695, 343 S.W.2d 857, 1961 Tenn. LEXIS 387 (1961).

27. —Generally.

A suit in chancery against state officers (the sheriff and district attorney) to enjoin them from collecting a null and void judgment in favor of the state against a revenue collector and his sureties can be maintained; and the state cannot prosecute a writ of error to the supreme court, because it is not a party to the suit. Fry v. Britton, 49 Tenn. 606, 1871 Tenn. LEXIS 50 (1871).

An action brought by an insurance company against the commissioner of insurance (now commissioner of commerce and insurance) to restrain a threatened revocation of its license is not one that is prosecuted “with a view to reach the state, its treasury, funds, or property,” and therefore not within the prohibition of the statute. North British & Mercantile Co. v. Craig, 106 Tenn. 621, 62 S.W. 155, 1900 Tenn. LEXIS 197 (1901).

A bill in chancery against the state's coal oil inspector to restrain him from inspecting certain coal oil in the state, sold or intended for sale in certain other states, and to restrain him from collecting the fees for such inspection, is a suit against an officer of the state acting by its authority, with a view to reach its funds or property, and cannot be maintained. General Oil Co. v. Crain, 117 Tenn. 82, 95 S.W. 824, 1906 Tenn. LEXIS 32, 121 Am. St. Rep. 967 (1906), aff'd, 209 U.S. 211, 28 S. Ct. 475, 52 L. Ed. 754, 1908 U.S. LEXIS 1728 (1908).

Citizens generally cannot sue to restrain or compel action of state authorities unless the latter are acting illegally and the effect will occasion some specific injury, not common to the body of the citizenship. State ex rel. Allen v. American Glanzstoff Corp., 167 Tenn. 597, 72 S.W.2d 775, 1933 Tenn. LEXIS 69 (1934).

28. —Invalid Law.

State officers may be enjoined from executing an unconstitutional act. While executing an unconstitutional act they are not acting by authority of the state. Lynn v. Polk, 76 Tenn. 121, 1881 Tenn. LEXIS 16 (1881); Collier v. Goessling, 160 F. 604, 1908 U.S. App. LEXIS 4227 (6th Cir. 1908), cert. denied, 215 U.S. 596, 30 S. Ct. 399, 54 L. Ed. 342, 1909 U.S. LEXIS 1979 (1909).

A party has the right to be protected against a law which violates a constitutional right, whether by its terms or the manner of its enforcement, and a decision which denies such protection gives effect to the law and is reviewable by the United States Supreme Court notwithstanding the provisions of this section. General Oil Co. v. Crain, 209 U.S. 211, 28 S. Ct. 475, 52 L. Ed. 754, 1908 U.S. LEXIS 1728 (1908).

A suit to enjoin enforcement of a state inspection law alleged to be invalid is not prohibited by this section. General Oil Co. v. Crain, 209 U.S. 211, 28 S. Ct. 475, 52 L. Ed. 754, 1908 U.S. LEXIS 1728 (1908).

A suit against state officers to prevent enforcement of an alleged unconstitutional statute purporting to authorize confiscation of tobacco for failure to pay privilege tax, is not a suit against the state within meaning of this section and Tenn. Const. art. I, § 17. Stockton v. Morris & Pierce, 172 Tenn. 197, 110 S.W.2d 480, 1937 Tenn. LEXIS 70 (1937).

29. Mandamus.

30. —When Permissible.

Mandamus lies against the state comptroller to compel the issuance of a warrant to a state judge for his salary. Burch v. Baxter, 59 Tenn. 601, 1873 Tenn. LEXIS 120 (1873).

Mandamus against the state comptroller to compel the issuance of a warrant for a claim for fees against the state, allowed by law, is not a suit against the state, and may be maintained. Akers v. Burch, 59 Tenn. 606, 1873 Tenn. LEXIS 121 (1873); Lynn v. Polk, 76 Tenn. 121, 1881 Tenn. LEXIS 16 (1881); State ex rel. Nealis v. Nolan, 76 Tenn. 663, 1881 Tenn. LEXIS 60 (1881).

Mandamus lies to compel the state comptroller to issue warrant for lawful claims authorized by statute. State ex rel. Nealis v. Nolan, 76 Tenn. 663, 1881 Tenn. LEXIS 60 (1881).

The state board of education could not successfully invoke this section in mandamus proceedings to compel it to draw its certificate on the state comptroller for the amount found and decreed to be due for labor and materials furnished in improvements and repairs at state normal school. Dietler v. Kincannon, 151 Tenn. 652, 270 S.W. 984, 1924 Tenn. LEXIS 93 (1925).

When a plain official duty, requiring no exercise of discretion, is to be performed, and performance is refused, the person aggrieved may compel performance by mandamus. Dietler v. Kincannon, 151 Tenn. 652, 270 S.W. 984, 1924 Tenn. LEXIS 93 (1925).

31. —When Not Maintainable.

An officer of the state cannot be compelled by mandamus to do what the legislature has prohibited him from doing, because such suit is in effect a suit against the state. State ex rel. Bloomstein v. Sneed, 68 Tenn. 472, 1876 Tenn. LEXIS 32 (1876), aff'd, Tennessee v. Sneed, 96 U.S. 69, 24 L. Ed. 610, 1877 U.S. LEXIS 1627 (1878); Lynn v. Polk, 76 Tenn. 121, 1881 Tenn. LEXIS 16 (1881).

Where plaintiff prayed for an alternative writ of mandamus to compel the collector of revenue to receive certain bills in payment of taxes due, or to show cause to the contrary, such action cannot be maintained because no court had power, jurisdiction or authority to entertain any suit against the state, or against any officer of the state, acting by authority of the state. Tennessee v. Sneed, 96 U.S. 69, 24 L. Ed. 610, 1877 U.S. LEXIS 1627 (1878).

A judgment against the state for costs of boarding a jury, rendered at a term subsequent to the termination of the case, is void, and mandamus will not lie against the state comptroller to compel the payment thereof. State ex rel. Nealis v. Nolan, 76 Tenn. 663, 1881 Tenn. LEXIS 60 (1881).

Mandamus does not lie to compel the state's officials to issue vouchers or warrants for price of articles sold to the state. State ex rel. Day Pulverizer Co. v. Fitts, 166 Tenn. 156, 60 S.W.2d 167, 1932 Tenn. LEXIS 125 (1933), vacated, Rescar, Inc. v. Ward, 2003 Tex. LEXIS 1 (Tex. Jan. 7, 2003).

32. Declaratory Judgments.

This section expressly forbids filing action against state for declaratory judgment to construe statutes. Hill v. Beeler, 199 Tenn. 325, 286 S.W.2d 868, 1956 Tenn. LEXIS 329 (1956).

The courts of Tennessee are prohibited from entertaining an action for declaratory judgment against a state officer. Carter v. McWherter, 859 S.W.2d 343, 1993 Tenn. App. LEXIS 249 (Tenn. Ct. App. 1993).

Former employee's declaratory judgment action asking the trial court to hold that a state department head was without authority to impose a voluntary resignation on the employee was barred by T.C.A. § 20-13-102. Spencer v. Cardwell, 937 S.W.2d 422, 1996 Tenn. App. LEXIS 391 (Tenn. Ct. App. 1996).

The Declaratory Judgment Act does not authorize suits against state entities such as the Tennessee board of paroles (board of probation and parole) or the Tennessee department of correction and the chancery court lacks subject matter jurisdiction over such a suit. Watson v. Tennessee Dep't of Correction, 970 S.W.2d 494, 1998 Tenn. App. LEXIS 13 (Tenn. Ct. App. 1998).

Declaratory judgment action seeking a declaration that an easement for highway purposes was not a highway right-of-way and that the state had no authority to require removal of the landowners' signs because of a claimed encroachment, was a suit against the state under T.C.A. § 20-13-102 and was barred under the doctrine of sovereign immunity as it sought to affect a property interest of the state. Williams v. Nicely, 230 S.W.3d 385, 2007 Tenn. App. LEXIS 111 (Tenn. Ct. App. Feb. 28, 2007), appeal denied, — S.W.3d —, 2007 Tenn. LEXIS 621 (Tenn. June 25, 2007).

T.C.A. § 29-14-103 granted subject matter jurisdiction to the Davidson County chancery court to address the constitutional issue presented by a company which did not seek money damages or refund of paid taxes, but instead sought a declaration of unconstitutionality; chancery court could issue declaratory and injunctive relief against state officials in their individual capacity, so long as court's judgment was tailored to prevent the implementation of unconstitutional legislation and did not reach the state, its treasury, funds, or property. Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 2008 Tenn. LEXIS 589 (Tenn. Sept. 9, 2008).

T.C.A. § 68-102-122 does not expressly permit suits against the state and is not a waiver of the state's sovereign immunity; while declaratory actions may be brought against state agencies as described in T.C.A. § 4-5-225(a), however T.C.A. § 20-13-102(a) prohibits such suits “with a view,” i.e., with the purpose to reach the state's treasury, and since the state and its officers were protected by sovereign immunity which had not been waived by the legislature, trial court did not have jurisdiction to entertain the city's claim. City of Jackson v. State, — S.W.3d —, 2008 Tenn. App. LEXIS 318 (Tenn. Ct. App. May 27, 2008).

Defendant was not entitled to a declaratory judgment that T.C.A. § 40-23-116 was unconstitutional as applied due to defendant's intellectual disability because the intellectual disability issue had no effect on the statute's constitutionality, so sovereign immunity barred the claim. Suttles v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 627 (Tenn. Crim. App. June 25, 2014), rehearing denied, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 730 (Tenn. Crim. App. July 8, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 1013 (Tenn. Nov. 21, 2014).

Could not proceed under the Declaratory Judgment Act because an allegation against the Tennessee State Election Commission (TSEC) pertaining to an unconstitutional statute was a threshold requirement to remove or waive immunity, and the candidate did not make such an allegation but sought a declaration as to the TSEC's duty to educate voters; accordingly, the chancery court lacked jurisdiction to hear his suit for declaratory judgment under the Act. Johnston v. Tenn. State Election Comm'n, — S.W.3d —, 2016 Tenn. App. LEXIS 723 (Tenn. Ct. App. Sept. 27, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 49 (Tenn. Jan. 19, 2017).

33. Tennessee Claims Commission.

The Tennessee claims commission has exclusive jurisdiction to hear claims arising against the state; however, this jurisdiction is limited only to those claims specified in T.C.A. § 9-8-307(a). Stewart v. State, 33 S.W.3d 785, 2000 Tenn. LEXIS 711 (Tenn. 2000).

34. Sanctions.

In an action involving the granting of custody of a child to the maternal step-grandmother, inasmuch as the trial court cited no statutory or other authority in making the award of sanctions against the state, and in light of the fact that the appellate court was unable to determine the legal or factual basis upon which the state participated in the case, other than as counsel for the grandmother until she secured separate counsel, the appellate court was unable to say that the trial court did not have statutory authority to award sanctions against the state, T.C.A. § 20-13-102(a). State ex. rel. P.A.S. v. L.B., — S.W.3d —, 2009 Tenn. App. LEXIS 640 (Tenn. Ct. App. Sept. 24, 2009).

35. Attorney Fees.

Trial court had no authority to assess attorney's fees against the county based on equitable considerations alone, given that the county was a political subdivision of the State and was therefore entitled to sovereign immunity, for purposes of T.C.A. § 20-13-102(a). Zumstein v. Roane Cty. Executive/Mayor, — S.W.3d —, 2017 Tenn. App. LEXIS 573 (Tenn. Ct. App. Aug. 21, 2017).

Collateral References. 72 Am. Jur. 2d States, Territories and Dependencies §§ 99-101, 103, 104, 120-122, 124, 127.

1 C.J.S. Actions §§ 1, 4; 81A C.J.S. States §§ 303-307.

Consent to suit against state, necessity of. 42 A.L.R. 1464, 50 A.L.R. 1408.

Declaratory relief with respect to unemployment compensation as suit against state. 14 A.L.R.2d 826.

Immunity from suit of governmental liquor control agency. 9 A.L.R.2d 1292.

Liability of state or governmental unit or agency for damages in tort in operating hospital as affected by capacity to be sued. 25 A.L.R.2d 203, 18 A.L.R.4th 858.

Mortgage foreclosure suit, right to join state (or officer who represents state) in, in order to cut off interest acquired by state subject to the mortgage. 113 A.L.R. 1511.

Railroad owned by or in which interest is held by state, suit against. 8 A.L.R. 995.

Remedy available against invalid judgment in favor of state. 163 A.L.R. 244.

Right of contractor with federal, state or local public body to latter's immunity from tort liability. 9 A.L.R.3d 382.

Taxes, right to enforce provision of governmental obligations or of statute under which they were issued, that they shall be accepted in payment of, as affected by state immunity from suit. 100 A.L.R. 1349.

Tort liability of public schools and institutions of higher learning. 86 A.L.R.2d 489, 33 A.L.R.3d 703, 34 A.L.R.3d 1166, 34 A.L.R.3d 1210, 35 A.L.R.3d 725, 35 A.L.R.3d 758, 36 A.L.R.3d 361, 37 A.L.R.3d 712, 37 A.L.R.3d 738, 38 A.L.R.3d 830, 23 A.L.R.5th 1.

States 193.

20-13-103. Compromise and settlement of litigation.

The attorney general and reporter may compromise and settle, insofar as the state is concerned, any civil litigation to which the state may be a party, upon such terms as in the attorney general and reporter's opinion may seem to be in the best interest of the state, and may enter into such agreements in connection with the compromise and settlement as may be necessary to effectuate the purposes of this section. Written approval of the comptroller of the treasury and governor shall be required for any compromise and settlement greater than twenty-five thousand dollars ($25,000). The attorney general and reporter shall submit a report quarterly to the comptroller of the treasury and governor of all compromises and settlements made without the written approval of the comptroller of the treasury and governor. The written approval of the speaker of the senate and the speaker of the house of representatives, the comptroller of the treasury and governor, shall be also required for the compromise and settlement of such civil litigation to which the state may be a party if the compromise and settlement will result in a significant increase in state expenditures, affect the bond rating of the state or result in a decision on a policy issue that may result in a significant increase in state expenditures.

Acts 1933, ch. 78, § 1; T.C.A. (orig. ed.), § 20-1703; Acts 1986, ch. 728, § 1; 2012, ch. 637, § 1.

Amendments. The 2012 amendment deleted “, with the written approval of the governor and the comptroller of the treasury,” following “attorney general and reporter” and substituted “attorney general’s” for “their” in the first sentence; added the second and third sentences; and inserted “, the comptroller of the treasury and governor,” in the last sentence.

Effective Dates. Acts 2012, ch. 637, § 2. March 30, 2012.

Textbooks. Tennessee Jurisprudence, 6  Tenn. Juris., Compromise and Settlement, § 2.

Collateral References.

Attorney's authority to compromise action — modern cases. 66 A.L.R. 119, 30 A.L.R.2d 944.

States 179.

20-13-104. Order for deposit in treasury.

In all suits brought by the state, where it is made to appear, to the satisfaction of the chancellor or judge before whom the same is pending, that any funds, moneys, bonds, notes, coupons or securities are held by any person as agent, depository or trustee, either for the state or for any of the parties against whom the suit is pending, and the litigation involves the question as to which party is entitled to the ownership or possession of the fund, or the terms on which it shall be taken by the state, it shall be the duty of the court, judge or chancellor, in open court or at chambers, in term or in vacation, to order and direct that the fund be deposited in the treasury for safekeeping, which order the court, judge or chancellor shall proceed to enforce by process of attachment against the person, or by such other writ, process, orders or agency as may be adequate to the purpose.

Acts 1873, ch. 78, § 1; Shan., § 4508; mod. Code 1932, § 8635; T.C.A. (orig. ed.), § 20-1704.

Collateral References. States 75, 122.

20-13-105. Appeal from deposit order.

No appeal shall lie from any deposit order until after it has been fully complied with, nor shall any supersedeas be granted therein until after the deposit order is fully complied with.

Acts 1873, ch. 78, § 1; Shan., § 4509; Code 1932, § 8636; T.C.A. (orig. ed.), § 20-1705.

Textbooks. Tennessee Jurisprudence, 10  Tenn. Juris., Ejectment, § 31.

20-13-106. Safekeeping of deposited securities.

The court, judge or chancellor shall make such order as the court, judge or chancellor deems necessary for the safekeeping or cancellation and redelivery or appropriation of the securities so deposited.

Acts 1873, ch. 78, § 2; Shan., § 4510; Code 1932, § 8637; T.C.A. (orig. ed.), § 20-1706.

20-13-107. Return of deposited property.

Where moneys are deposited in the state treasury under the provisions of this chapter, the court shall have power, in the event the right to the moneys are adjudged against the state, to order the return of the moneys to the party entitled, and the moneys shall be paid out of the treasury without any delay, and in exclusion of all other claims whatever.

Acts 1873, ch. 78, § 3; Shan., § 4511; Code 1932, § 8638; T.C.A. (orig. ed.), § 20-1707.

Collateral References. States 89.

20-13-108. Methods of deposit and withdrawal.

The funds or securities shall be placed in the state treasury, and drawn from the state treasury on warrants of the commissioner of finance and administration.

Acts 1873, ch. 78, § 4; Shan., § 4512; Code 1932, § 8639; impl. am. Acts 1937, ch. 33, § 24; impl. am. Acts 1959, ch. 9, § 3; impl. am. Acts 1961, ch. 97, § 3; T.C.A. (orig. ed.), § 20-1708.

20-13-109. Tax recovery by other states.

Any state of the United States or the political subdivisions of any state shall have the right to sue in the courts of this state to recover any tax that may be owing to it when the like right is accorded to this state and its political subdivisions by such state.

Acts 1949, ch. 157, § 1; C. Supp. 1950, § 8639.1; T.C.A. (orig. ed.), § 20-1709.

Law Reviews.

Symposium State Taxation of Interstate Business — Out-of-State Collection of State and Local Taxes (Robert A. Leflar), 29 Vand. L. Rev. 443.

Cited: United States Steel Corp. v. Multistate Tax Comm'n, 434 U.S. 452, 98 S. Ct. 799, 54 L. Ed. 2d 682, 1978 U.S. LEXIS 58 (1978).

20-13-110. Venue for real property lien action against state.

Venue for any suit against the state relative to a lien on real property shall be in the county in which the property is located.

Acts 1986, ch. 799, § 1.

Chapter 14
Violence in the Workplace

20-14-101. Chapter definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Course of conduct” means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking an employee to or from the employee's place of work, entering the workplace of an employee, following an employee during hours of employment, telephone calls to an employee, and correspondence with an employee, including, but not limited to, the use of the public or private mails, interoffice mail, facsimile or computer e-mail;
  2. “Credible threat of violence” means a knowing and willful statement or course of conduct that would cause a reasonable person to believe that the person is under threat of death or serious bodily injury and that is intended to, and that actually causes, a person to believe that the person is under threat of death or serious bodily injury;
  3. “Employer” means any person or entity that employs one (1) or more employees and shall include the state and its political subdivisions and instrumentalities; and
  4. [Deleted by 2011 amendment.]
  5. “Unlawful violence” means assault, aggravated assault, stalking, intimidation, or extortion as prohibited by §§ 39-13-101, 39-13-102, 39-17-315, 39-17-309 and 39-14-112.

Acts 2002, ch. 541, § 2; 2011, ch. 315, §§ 1, 2.

Compiler's Notes. For the preamble to the act concerning laws related to violence in the workplace, please refer to Acts 2011, ch. 315.

Amendments. The 2011 amendment deleted the definition of “labor dispute” which read: “‘Labor dispute’ includes any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of employment, regardless of whether or not the disputants stand in the proximate relationship of employer and employee; and”; and rewrote the definition of “unlawful violence” which read: “‘Unlawful violence’ means assault, aggravated assault or stalking, as prohibited by §§ 39-13-101, 39-13-102, and 39-17-315, but shall not include lawful acts of self-defense or defense of others.”

Effective Dates. Acts 2011, ch. 315, § 7. May 27, 2011.

Comparative Legislation. Violence in the workplace:

Ark.  Code § § 11-5-115

Ga.  O.C.G.A. § § 34-6-1 et seq.

Miss.  Code Ann. § 97-23-41

20-14-102. Temporary restraining order and injunction.

Any employer or employee who has suffered unlawful violence or a credible threat of violence from any individual, or an organization that the individual is affiliated with, which can reasonably be construed to have been carried out at the workplace, may seek a temporary restraining order and an injunction prohibiting further unlawful violence or threats of violence by that individual, or the organization that individual is affiliated with, at the workplace. Nothing in this chapter shall be construed as authorizing a court to issue a temporary restraining order or injunction prohibiting speech or other activities that are protected by the constitutions of this state or the United States.

Acts 2002, ch. 541, § 3; 2011, ch. 315, § 3.

Compiler's Notes. For the preamble to the act concerning laws related to violence in the workplace, please refer to Acts 2011, ch. 315.

Amendments. The 2011 amendment rewrote the section which read: “Any employer whose employee has suffered unlawful violence or a credible threat of violence from any individual, which can reasonably be construed to have been carried out at the employee's workplace, may seek a temporary restraining order and an injunction on behalf of the employer prohibiting further unlawful violence or threats of violence by that individual at the employee's workplace or while the employee is acting within the course and scope of employment with the employer. Nothing in this chapter shall be construed as authorizing a court to issue a temporary restraining order or injunction prohibiting speech or other activities that are protected by the constitutions of Tennessee or the United States.”

Effective Dates. Acts 2011, ch. 315, § 7. May 27, 2011.

NOTES TO DECISIONS

1. Injunction Erroneously Granted.

It was error to enjoin a citizen under the Tennessee Violence in the Workplace Act (Act) because: (1) there was no clear and convincing evidence that the citizen engaged in at least two acts of stalking or that the citizen engaged in intimidation; and (2) a trial court could not issue an injunction “separate and apart” from the Act, since a permanent injunction was available as a remedy only if an applicant prevailed on the merits of a claim. City of Leb. ex rel. Craighead v. Dodson, — S.W.3d —, 2018 Tenn. App. LEXIS 240 (Tenn. Ct. App. Apr. 30, 2018).

20-14-103. Jurisdiction.

  1. Except for proceedings involving a nonresident respondent, the court of competent jurisdiction of the county where the unlawful violence or credible threat of violence occurred shall have jurisdiction over all proceedings under this chapter.
  2. For proceedings under this chapter involving a nonresident respondent, the court of competent jurisdiction where the petitioner's workplace is located shall have jurisdiction, where the act involving unlawful violence or a credible threat of unlawful violence meets the elements for personal jurisdiction provided for under § 20-2-223(a)(3) or (a)(4).

Acts 2002, ch. 541, § 4.

20-14-104. Petition — Affidavit — Duration of temporary restraining order.

Upon filing a petition with the court for an injunction pursuant to this chapter, the petitioner may obtain a temporary restraining order if the petitioner also files an affidavit that, to the satisfaction of the court, shows reasonable proof that an employee or employer has suffered unlawful violence or a credible threat of violence by the respondent and that great or irreparable harm will result to an employee or an employer if the injunction is not granted. The affidavit shall further show that the petitioner has conducted a reasonable investigation into the underlying facts that are the subject of the petition. A temporary restraining order granted under this chapter shall remain in effect, at the court's discretion, for a period not to exceed fifteen (15) days, unless otherwise modified or terminated by the court.

Acts 2002, ch. 541, § 5; 2011, ch. 315, § 4.

Compiler's Notes. For the preamble to the act concerning laws related to violence in the workplace, please refer to Acts 2011, ch. 315.

Amendments. The 2011 amendment inserted “or employer” and “or an employer” in the first sentence.

Effective Dates. Acts 2011, ch. 315, § 7. May 27, 2011.

20-14-105. Hearing on petition — Response — Relevant testimony — Duration of injunction — Renewal of injunction.

Within ten (10) days of the filing of the petition under this chapter or as soon as practical thereafter, but in no case later than thirty (30) days after the filing of the petition, a hearing shall be held on the petition for the injunction. In the event a hearing cannot be scheduled within the county where the case is pending within the thirty-day period, it shall be scheduled and heard as soon as possible. The respondent may file a response that explains, excuses, justifies, or denies the alleged unlawful violence or credible threat of violence or may file a cross-complaint under this chapter. At the hearing, the judge shall receive any testimony that is relevant and may make an independent inquiry. If the judge finds by clear and convincing evidence that the respondent engaged in unlawful violence or made a credible threat of violence, an injunction shall be issued prohibiting further unlawful violence or threats of violence at the workplace or while the employee or employer is acting within the course and scope of employment. An injunction issued pursuant to this chapter shall have a duration of not more than three (3) years. At any time within the three-month period before the expiration of the injunction, the petitioner may apply for a renewal of the injunction by filing a new petition for an injunction pursuant to this chapter.

Acts 2002, ch. 541, § 6; 2011, ch. 315, § 5.

Compiler's Notes. For the preamble to the act concerning laws related to violence in the workplace, please refer to Acts 2011, ch. 315.

Amendments. The 2011 amendment, in the fifth sentence, substituted “an injunction shall be issued” for “an injunction shall issue”, substituted “workplace” for “employee’s workplace” and substituted “the employee or employer is acting within the course and scope of employment” for “the employee is acting within the course and scope of employment with the employer” at the end.

Effective Dates. Acts 2011, ch. 315, § 7. May 27, 2011.

NOTES TO DECISIONS

1. Injunction Erroneously Granted.

It was error to enjoin a citizen under the Tennessee Violence in the Workplace Act (Act) because: (1) there was no clear and convincing evidence that the citizen engaged in at least two acts of stalking or that the citizen engaged in intimidation; and (2) a trial court could not issue an injunction “separate and apart” from the Act, since a permanent injunction was available as a remedy only if an applicant prevailed on the merits of a claim. City of Leb. ex rel. Craighead v. Dodson, — S.W.3d —, 2018 Tenn. App. LEXIS 240 (Tenn. Ct. App. Apr. 30, 2018).

20-14-106. Service of petition, temporary restraining order, and notice of hearing.

Upon the filing of a petition for an injunction under this chapter, the respondent shall be personally served with a copy of the petition, temporary restraining order, if any, and notice of hearing on the petition.

Acts 2002, ch. 541, § 7.

20-14-107. Delivery of orders to law enforcement agencies — Availability of information to law enforcement officers.

The court shall order the petitioner or the attorney for the petitioner to deliver a copy of each temporary restraining order or injunction, or modification or termination of the temporary restraining order or injunction, granted under this chapter, by the close of the business day on which the order was granted, to the law enforcement agencies within the court's discretion as are requested by the petitioner. Each appropriate law enforcement agency shall make available information as to the existence and current status of these orders to law enforcement officers responding to the scene of reported unlawful violence or a credible threat of violence.

Acts 2002, ch. 541, § 8.

20-14-108. Construction of chapter.

Nothing in this chapter shall be construed as expanding, diminishing, altering or modifying the duty, if any, of an employer to provide a safe workplace for employees and other persons. Nothing in this chapter shall be construed to prohibit an employer or employee from pursuing any other civil or criminal remedy provided by law.

Acts 2002, ch. 541, § 9.

20-14-109. [Repealed.]

Acts 2002, ch. 541, § 10, repealed by Acts 2011, ch. 315, § 6, effective May 27, 2011.

Compiler's Notes. Former § 20-14-109 concerned the applicability of the chapter to labor disputes.

Chapter 15
Policy on Granting Comity to Foreign Law, Legal Code or System

20-15-101. Chapter definition.

As used in this chapter, “foreign law, legal code, or system” means any law, legal code, or system of a jurisdiction outside of any state or territory of the United States, including, but not limited to, international organizations and tribunals, and applied by that jurisdiction's courts, administrative bodies, or other formal or informal tribunals.

Acts 2010, ch. 983, § 1.

Compiler's Notes. For the preamble to the act concerning recognizing the right to contract freely under the laws of this state, but also recognizing that this right may be reasonably and rationally circumscribed pursuant to the state's interest to protect and promote rights and privileges granted under the United States or Tennessee Constitutions, please refer to Acts 2010, ch. 983.

Effective Dates. Acts 2010, ch. 983, § 8. May 27, 2010.

20-15-102. Public policy.

It is the public policy of this state that the primary factor which a court, administrative agency, arbitrator, mediator or other entity or person acting under the authority of state law shall consider in granting comity to a decision rendered under any foreign law, legal code or system against a natural person in this state is whether the decision rendered either violated or would violate any right of the natural person in this state guaranteed by the Tennessee Constitution or the United States Constitution or any statute or decision under those constitutions.

Acts 2010, ch. 983, § 2.

Effective Dates. Acts 2010, ch. 983, § 8. May 27, 2010.

20-15-103. Primary factor in interpretation, enforcement or application of agreement providing for choice of foreign law, legal code or system is preservation of constitutional rights.

  1. If any contract, arbitration agreement or other agreement provides for the choice of a foreign law, legal code or system to govern its interpretation or the resolution of any claim or dispute and if the enforcement or interpretation of the contract, arbitration agreement or other agreement applying that choice of law provision either resulted or would result in a violation of any right guaranteed by the Tennessee Constitution or the United States Constitution, then it is the public policy of this state that the primary factor in interpretation, enforcement or application of the contract, arbitration agreement or other agreement shall be preservation of the constitutional rights of the natural person in this state against whom enforcement is sought, unless otherwise directed by state statute.
  2. Nothing in this chapter shall be interpreted to limit the right of a natural person of this state to voluntarily restrict or limit their own constitutional rights by contract or specific waiver consistent with constitutional principles; however, the language of any such contract or other waiver shall be strictly construed in favor of preserving the constitutional rights of the natural person in this state.

Acts 2010, ch. 983, § 3.

Effective Dates. Acts 2010, ch. 983, § 8. May 27, 2010.

20-15-104. Choice of venue or forum.

  1. If any contract, arbitration agreement or other agreement provides for the choice of venue or forum outside any state or territory of the United States and if the enforcement or interpretation of the contract, arbitration agreement or other agreement applying that choice of venue or forum provision either resulted or would result in a violation of any right of a natural person in this state guaranteed by the Tennessee Constitution or the United States Constitution, then it is the public policy of this state that, in interpreting or construing the contract or arbitration agreement or other agreement, the primary factor to be considered is whether it can be interpreted or construed to preserve the constitutional rights of the natural person in this state against whom enforcement is sought.
  2. If a natural person of this state, subject to personal jurisdiction in this state, seeks to maintain litigation, arbitration, agency or similarly binding proceedings in this state and if the courts of this state find that granting a claim of forum non conveniens or a related claim violates or would likely violate the constitutional rights of the non-claimant in the foreign forum with respect to the matter in dispute, then it is the public policy of this state that the claim shall be denied.

Acts 2010, ch. 983, § 4.

Effective Dates. Acts 2010, ch. 983, § 8. May 27, 2010.

Law Reviews.

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

20-15-105. Application to various forms of business association.

Without prejudice to any other legal right, this chapter shall not apply to a corporation, partnership or other form of business association.

Acts 2010, ch. 983, § 5.

Effective Dates. Acts 2010, ch. 983, § 8. May 27, 2010.

20-15-106. Application to foreseeable violations of constitutional rights from foreign law, legal code or system.

The public policies expressed in this chapter shall apply only to actual or foreseeable violations of the constitutional rights of a natural person in this state from a foreign law, legal code or system.

Acts 2010, ch. 983, § 6.

Effective Dates. Acts 2010, ch. 983, § 8. May 27, 2010.

Chapter 16
Summary Judgment

20-16-101. Burden of proof in summary judgment motions.

In motions for summary judgment in any civil action in Tennessee, the moving party who does not bear the burden of proof at trial shall prevail on its motion for summary judgment if it:

  1. Submits affirmative evidence that negates an essential element of the nonmoving party's claim; or
  2. Demonstrates to the court that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim.

Acts 2011, ch. 498, § 1.

Compiler's Notes. Acts 2011, ch. 498, § 2 provided that the act (which enacted T.C.A. § 20-16-101, which overruled the summary judgment standard for parties who do not bear the burden of proof at trial set forth in Hannan v. Alltel Publishing Co. , 270 S.W.3d 1 (Tenn. 2008)), except as set forth in the act, did not change Rule 56 of the Tennessee Rules of Civil Procedure.

Acts 2011, ch. 498, § 3 provided that the act, which enacted this section, shall apply to actions filed on or after July 1, 2011.

For the preamble to the act regarding the burden of proof in summary judgment motions, please refer to Acts 2011, ch. 498.

Effective Dates. Acts 2011, ch. 498, § 3. July 1, 2011.

Law Reviews.

Day on Tort: Tenn. Code Ann. §§ 55-10-311(A): What Does It Mean? (John Day), 49 Tenn. B.J. 37 (2013).

The Law at Work: Variation in State and Federal Pleading Standards: Webb and Veasy (Edward G. Phillips with Brandon L. Morrow), 49 Tenn. B.J. 26 (2013).

NOTES TO DECISIONS

1. Applicability.

Summary judgment standard embodied in T.C.A. § 20-16-101, which was intended to replace a summary judgment standard that arose from caselaw, was inapplicable to a claim under the Tennessee Public Protection Act, or the Whistleblower Act, T.C.A. § 50-1-304, where the cause of action accrued before June 10, 2011. Williams v. City of Burns, — S.W.3d —, 2012 Tenn. App. LEXIS 104 (Tenn. Ct. App. Feb. 15, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 353 (Tenn. May 21, 2012).

T.C.A. § 20-16-101 did not apply to a summary judgment motion as the action was filed before the July 1, 2011, effective date of the statute. Cadlerock Joint Venture II, L.P. v. Dunlap, — S.W.3d —, 2012 Tenn. App. LEXIS 728 (Tenn. Ct. App. Oct. 18, 2012).

As a retail business filed its action against a beauty equipment manufacturer before July 1, 2011, T.C.A. § 20-16-101 was not applicable in resolving a summary judgment motion. Apollo Hair Sys. of Nashville v. Micromode Med. Ltd., — S.W.3d —, 2012 Tenn. App. LEXIS 831 (Tenn. Ct. App. Nov. 29, 2012).

T.C.A. § 20-16-101 applied to the lender's claim for a deficiency judgment against the note guarantors where the complaint was filed on October 26, 2011. Firstbank v. Horizon Capital Partners, LLC, — S.W.3d —, 2014 Tenn. App. LEXIS 47 (Tenn. Ct. App. Feb. 3, 2014).

Provision did not apply in this case as it applied only to actions filed on or after July 1, 2011 and this action was initiated in 2009. TWB Architects, Inc. v. The Braxton, LLC, — S.W.3d —, 2014 Tenn. App. LEXIS 703 (Tenn. Ct. App. Oct. 30, 2014), appeal denied, TWB Architects, Inc. v. Braxton, LLC, — S.W.3d —, 2015 Tenn. LEXIS 173 (Tenn. Feb. 12, 2015).

Tennessee General Assembly legislatively reversed the Tennessee Supreme Court's holding in Hannan v. Alltel Publ'g Co., and the statute is applicable to cases filed on or after July 1, 2011; in this case, the summary judgment standard set forth in Hannan was applied because the complaint was filed on March 14, 2008. Thomas Energy Corp. v. Caterpillar Fin. Servs. Corp., — S.W.3d —, 2014 Tenn. App. LEXIS 855 (Tenn. Ct. App. Dec. 26, 2014).

T.C.A. § 20-16-101 is applicable to cases filed on or after July 1, 2011, when the moving party who does not bear the burden of proof at trial files a motion for summary judgment. Batts v. Cody, — S.W.3d —, 2015 Tenn. App. LEXIS 737 (Tenn. Ct. App. Sept. 14, 2015).

Even though the date of accrual in a healthcare liability case was when the patient suffered a stroke, before the effective date when the statute governing summary judgment went into effect, the date of the filing of the case was after the effective date for the statute. Accordingly, the motion for summary judgment in the case was not governed by the caselaw, but was governed by the statute. Young v. Jordan, — S.W.3d —, 2016 Tenn. App. LEXIS 687 (Tenn. Ct. App. Sept. 20, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 41 (Tenn. Jan. 20, 2017).

Plaintiff, who fell when she tried to grasp a handrail, failed to meet her burden to show that there was a genuine issue for which a trial was necessary. Plaintiff submitted no evidence, in the form of building codes or other sources, showing that the handrail at issue was a “safety device” that was per se made dangerous by the addition of garland and Christmas lights. Cruce v. Memmex Inc., — S.W.3d —, 2017 Tenn. App. LEXIS 82 (Tenn. Ct. App. Feb. 7, 2017).

1.5 Construction.

Standard set forth in Rye v. Women's Care Center of Memphis, MPLLC is controlling and must be applied retrospectively, despite the legislature's codification of the statute, a similar, if not identical summary judgment standard. Manning v. Manning, — S.W.3d —, 2016 Tenn. App. LEXIS 448 (Tenn. Ct. App. June 30, 2016), review dismissed — S.W.3d —, 2016 Tenn. LEXIS 698 (Tenn. Sept. 22, 2016).

2. Summary Judgment Improperly Denied.

Employer's employee was not acting within the scope and course of his employment at the time he was involved in a car accident given that he was commuting to work using a private vehicle over which the employer exercised no control, and he was not engaged in any task for his employer at the time of the accident. Thus, the trial court should have granted summary judgment to the employer in the tort suit brought against it. Cooper v. Robert Ledford Funeral Home, Inc., — S.W.3d —, 2013 Tenn. App. LEXIS 479 (Tenn. Ct. App. July 29, 2013).

Trial court erred in denying the premises owners summary judgment on the event attendees' negligence claims where there was no relationship between the owners and the tortfeasors, the only duty the owners owed the attendees was to protect them from harm while they were on the business premises, and it was undisputed that the attendees were no longer on the business premises at the time of the tortious act. Akridge v. Fathom, Inc., — S.W.3d —, 2015 Tenn. App. LEXIS 8 (Tenn. Ct. App. Jan. 7, 2015).

3. Summary Judgment Properly Granted.

In a retaliatory discharge action by a former police officer against the city under the Tennessee Public Protection Act, the trial court did not err in granting summary judgment in favor of the city because the former police officer's evidence was insufficient to establish a genuine issue of material fact as to two essential elements of her claim - that she refused to participate in an illegal activity as she presented no evidence that anyone employed by the city ever suggested or required her to write an unwarranted ticket; and that the city fired her solely because of her refusal to participate in an illegal activity as there were valid and legitimate reasons for her termination, including her poor attitude and demeanor at work. Bige v. City of Etowah, — S.W.3d —, 2014 Tenn. App. LEXIS 789 (Tenn. Ct. App. Dec. 1, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 297 (Tenn. Apr. 10, 2015).

Trial court did not err in granting a retailer summary judgment on a slip-and-fall case based on the one-year statute of limitations where the injured individual knew or should have known that the facts supported a lawsuit against the retailer on the day she fell, as evidenced by her filing a report with the retailer on that date, the fact that her injuries allegedly worsened after the date of the fall did not serve to invoke the discovery rule, and the individual had filed the action one day after the limitations period expired. Redmond v. Walmart Stores, Inc., — S.W.3d —, 2014 Tenn. App. LEXIS 853 (Tenn. Ct. App. Dec. 22, 2014).

4. Summary Judgment Improperly Granted.

Granting the city summary judgment on a former police officer's retaliation claims based on res judicata and collateral estoppel was error where certiorari review of an administrative appeal of the termination had not considered whether the purported reasons for the termination may have been pretextual, the court had specifically rejected evidence in support of that assertion as irrelevant, and the crux of the instant retaliatory discharge claim was whether the city had shown that the officer could not establish that his employment was terminated solely for his refusal to remain silent about an illegal activity. Brumley v. City of Cleveland, — S.W.3d —, 2015 Tenn. App. LEXIS 839 (Tenn. Ct. App. Oct. 15, 2015).

Chapter 17
Tennessee Public Participation Act

20-17-101. Short title.

This chapter shall be known and may be cited as the “Tennessee Public Participation Act.”

Acts 2019, ch. 185, § 1.

Compiler's Notes. Acts 2019, ch. 185, § 2 provided that the act, which enacted this chapter, shall apply to any legal action commenced on or after July 1, 2019.

Effective Dates. Acts 2019, ch. 185, § 2. July 1, 2019.

20-17-102. Purpose of chapter.

The purpose of this chapter is to encourage and safeguard the constitutional rights of persons to petition, to speak freely, to associate freely, and to participate in government to the fullest extent permitted by law and, at the same time, protect the rights of persons to file meritorious lawsuits for demonstrable injury. This chapter is consistent with and necessary to implement the rights protected by Article I, §§ 19 and 23, of the Constitution of Tennessee, as well as by the First Amendment to the United States Constitution, and shall be construed broadly to effectuate its purposes and intent.

Acts 2019, ch. 185, § 1.

Compiler's Notes. Acts 2019, ch. 185, § 2 provided that the act, which enacted this chapter, shall apply to any legal action commenced on or after July 1, 2019.

Effective Dates. Acts 2019, ch. 185, § 2. July 1, 2019.

20-17-103. Chapter definitions.

As used in this chapter:

  1. “Communication” means the making or submitting of a statement or document in any form or medium, including oral, written, audiovisual, or electronic;
  2. “Exercise of the right of association” means exercise of the constitutional right to join together to take collective action on a matter of public concern that falls within the protection of the United States Constitution or the Tennessee Constitution;
  3. “Exercise of the right of free speech” means a communication made in connection with a matter of public concern or religious expression that falls within the protection of the United States Constitution or the Tennessee Constitution;
  4. “Exercise of the right to petition” means a communication that falls within the protection of the United States Constitution or the Tennessee Constitution and:
    1. Is intended to encourage consideration or review of an issue by a federal, state, or local legislative, executive, judicial, or other governmental body; or
    2. Is intended to enlist public participation in an effort to effect consideration of an issue by a federal, state, or local legislative, executive, judicial, or other governmental body;
  5. “Legal action” means a claim, cause of action, petition, cross-claim, or counterclaim or any request for legal or equitable relief initiated against a private party;
  6. “Matter of public concern” includes an issue related to:
    1. Health or safety;
    2. Environmental, economic, or community well-being;
    3. The government;
    4. A public official or public figure;
    5. A good, product, or service in the marketplace;
    6. A literary, musical, artistic, political, theatrical, or audiovisual work; or
    7. Any other matter deemed by a court to involve a matter of public concern; and
  7. “Party” does not include a governmental entity, agency, or employee.

Acts 2019, ch. 185, § 1.

Compiler's Notes. Acts 2019, ch. 185, § 2 provided that the act, which enacted this chapter, shall apply to any legal action commenced on or after July 1, 2019.

Effective Dates. Acts 2019, ch. 185, § 2. July 1, 2019.

20-17-104. Petition to dismiss legal action filed in response to party's exercise of the right of free speech, right to petition, or right of association — Response — Stay of discovery.

  1. If a legal action is filed in response to a party's exercise of the right of free speech, right to petition, or right of association, that party may petition the court to dismiss the legal action.
  2. Such a petition may be filed within sixty (60) calendar days from the date of service of the legal action or, in the court's discretion, at any later time that the court deems proper.
  3. A response to the petition, including any opposing affidavits, may be served and filed by the opposing party no less than five (5) days before the hearing or, in the court's discretion, at any earlier time that the court deems proper.
  4. All discovery in the legal action is stayed upon the filing of a petition under this section. The stay of discovery remains in effect until the entry of an order ruling on the petition. The court may allow specified and limited discovery relevant to the petition upon a showing of good cause.

Acts 2019, ch. 185, § 1.

Compiler's Notes. Acts 2019, ch. 185, § 2 provided that the act, which enacted this chapter, shall apply to any legal action commenced on or after July 1, 2019.

Effective Dates. Acts 2019, ch. 185, § 2. July 1, 2019.

20-17-105. Burden of proof — Dismissal of legal action.

  1. The petitioning party has the burden of making a prima facie case that a legal action against the petitioning party is based on, relates to, or is in response to that party's exercise of the right to free speech, right to petition, or right of association.
  2. If the petitioning party meets this burden, the court shall dismiss the legal action unless the responding party establishes a prima facie case for each essential element of the claim in the legal action.
  3. Notwithstanding subsection (b), the court shall dismiss the legal action if the petitioning party establishes a valid defense to the claims in the legal action.
  4. The court may base its decision on supporting and opposing sworn affidavits stating admissible evidence upon which the liability or defense is based and on other admissible evidence presented by the parties.
  5. If the court dismisses a legal action pursuant to a petition filed under this chapter, the legal action or the challenged claim is dismissed with prejudice.
  6. If the court determines the responding party established a likelihood of prevailing on a claim:
    1. The fact that the court made that determination and the substance of the determination may not be admitted into evidence later in the case; and
    2. The determination does not affect the burden or standard of proof in the proceeding.

Acts 2019, ch. 185, § 1.

Compiler's Notes. Acts 2019, ch. 185, § 2 provided that the act, which enacted this chapter, shall apply to any legal action commenced on or after July 1, 2019.

Effective Dates. Acts 2019, ch. 185, § 2. July 1, 2019.

20-17-106. Appeal of order dismissing or refusing to dismiss legal action.

The court's order dismissing or refusing to dismiss a legal action pursuant to a petition filed under this chapter is immediately appealable as a matter of right to the court of appeals. The Tennessee Rules of Appellate Procedure applicable to appeals as a matter of right governs such appeals.

Acts 2019, ch. 185, § 1.

Compiler's Notes. Acts 2019, ch. 185, § 2 provided that the act, which enacted this chapter, shall apply to any legal action commenced on or after July 1, 2019.

Effective Dates. Acts 2019, ch. 185, § 2. July 1, 2019.

20-17-107. Award of court costs, attorney's fees, and other costs and expenses — Additional relief.

  1. If the court dismisses a legal action pursuant to a petition filed under this chapter, the court shall award to the petitioning party:
    1. Court costs, reasonable attorney's fees, discretionary costs, and other expenses incurred in filing and prevailing upon the petition; and
    2. Any additional relief, including sanctions, that the court determines necessary to deter repetition of the conduct by the party who brought the legal action or by others similarly situated.
  2. If the court finds that a petition filed under this chapter was frivolous or was filed solely for the purpose of unnecessary delay, and makes specific written findings and conclusions establishing such finding, the court may award to the responding party court costs and reasonable attorney's fees incurred in opposing the petition.

Acts 2019, ch. 185, § 1.

Compiler's Notes. Acts 2019, ch. 185, § 2 provided that the act, which enacted this chapter, shall apply to any legal action commenced on or after July 1, 2019.

Effective Dates. Acts 2019, ch. 185, § 2. July 1, 2019.

20-17-108. Effect of chapter.

Nothing in this chapter:

  1. Applies to an enforcement action that is brought in the name of the state or a political subdivision of this state by the attorney general, a district attorney general, or a county or municipal attorney;
  2. Can result in findings or determinations that are admissible in evidence at any later stage of the underlying legal action or in any subsequent legal action;
  3. Affects or limits the authority of a court to award sanctions, costs, attorney's fees, or any other relief available under any other statute, court rule, or other authority;
  4. Affects, limits, or precludes the right of any party to assert any defense, remedy, immunity, or privilege otherwise authorized by law;
  5. Affects the substantive law governing any asserted claim;
  6. Creates a private right of action; or
  7. Creates any cause of action for any government entity, agency, or employee.

Acts 2019, ch. 185, § 1.

Compiler's Notes. Acts 2019, ch. 185, § 2 provided that the act, which enacted this chapter, shall apply to any legal action commenced on or after July 1, 2019.

Effective Dates. Acts 2019, ch. 185, § 2. July 1, 2019.

20-17-109. Intent of chapter.

This chapter is intended to provide an additional substantive remedy to protect the constitutional rights of parties and to supplement any remedies which are otherwise available to those parties under common law, statutory law, or constitutional law or under the Tennessee Rules of Civil Procedure.

Acts 2019, ch. 185, § 1.

Compiler's Notes. Acts 2019, ch. 185, § 2 provided that the act, which enacted this chapter, shall apply to any legal action commenced on or after July 1, 2019.

Effective Dates. Acts 2019, ch. 185, § 2. July 1, 2019.

20-17-110. Severability.

If any provision of this chapter or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of chapter 185 of the Public Acts of 2019 that can be given effect without the invalid provision or application, and to that end the provisions of chapter 185 of the Public Acts of 2019 are declared to be severable.

Acts 2019, ch. 185, § 1.

Compiler's Notes. Acts 2019, ch. 185, § 2 provided that the act, which enacted this chapter, shall apply to any legal action commenced on or after July 1, 2019.

Effective Dates. Acts 2019, ch. 185, § 2. July 1, 2019.