*1 false state- person to whom the is commit- ment wás made. The offense CRAVEN, Plaintiff, Timothy A. made, ted when the false statement fraud, a and with the intention to commit LAWSON, Defendant. Fred thereby obtained. money or property Supreme Court of Tennessee. Jan. is to punish The of the statute purpose committed perpetrators of fraud gist The through any pretense. false misrepresen- is the successful
the offense
tation, regardless person to whom (Emphasis supplied). made.
it was at 370.
S.W. judgment
The of the trial court is rein-
stated; Ap- that of the Court of Criminal
peals is
Reversed.
FONES, J., C. and BROCK
OPINION ON PETITION TO REHEAR
AND MOTIONS
HENRY, Justice. petition to rehear is respectfully
overruled.
The motion to set aside conviction is
respectfully denied. a stay pending application motion for Supreme Court of the United States granted, providing peti-
for certiorari is timely filing
tion is filed. Pending
disposition petition, of said be stayed
this Court will and defendant
may present remain bond.
654
voluntary pursue as to his non-suit Lee and Lawson. against lawsuit date, moved to On the trial Lawson Craven had amend his answer to assert not to sue and also given Lee a covenant on the moved for extinguished of Lee ground that the release liability of Law- the derivative or vicarious son. both motions on judge
The trial sustained presented. were filed and day they the same sustaining orders entry Prior to the motions, plaintiff moved to Lawson’s against Lawson to al- complaint amend his entrustment and other inde- lege negligent moved negligence and the pendent acts of summary judgment on court to vacate motion had not been that the ground prior hearing (30) days to thirty filed by Rule 56.03 TRCP. required as thereon were overruled plaintiff’s motions Both of judge trial and the Court of by the learned Appeals affirmed. to three certiorari consider granted
We (3) issues. requiring that a motion for
Is the rule
thirty
at least
summary judgment be served
Stair,
Bernstein, L. Caesar
Bernard E.
hearing, mandatory or
prior to the
days
Susano, Knox-
Bernstein,
&
III,
Dougherty
discretionary?
ville,
plaintiff.
for
judge
failing
grant
err in
to
Did the trial
Doughty &
Hodges,
Campbell,
Robert R.
complaint
amend
motion to
plaintiff’s
Carson, Knoxville, for defendant.
against Lawson?
Among
Contribution
Did the Uniform
OPINION
change the rule of Stew
Act
Tort Feasors
761
208 Tenn.
S.W.2d
Craig,
art v.
FONES,
Justice.
Chief
liability of a mas
derivative
(1961),that the
Lee, III,
D.
sued William
Timothy Craven
by a cove
extinguished
principal
ter or
Lawson, owner, of a motor
driver,
Fred
agent?
the servant or
not to sue
nant
sustained while
injuries
personal
for
vehicle
Law-
riding
passenger.
as a
was
plaintiff
I.
predicated
was
alleged
son’s
with Law-
the automobile
operating
Lee
held that the
Appeals
The
Court
and benefit.
for his use
consent and
son’s
passing
in error
judge
trial
was
judgment on
summary
Monday trial Lawson’s motion for
preceding a
Friday
theOn
filed but
was
day
a sum
the motion
accept
to
the same
date,
agreed
Craven
the out
harmless because
for a covenant
it to be
exchange
declared
money from Lee
thirty (30) day
after a
between
motion
come of the
It was understood
not to sue.
the same.
have been
delay
would take a
would
plaintiff
and Lee that
Craven
premature
stances of this
grant
case.
purpose
of the rule
to allow the
summary
discovery
obvi-
opposing party
deposi-
time to file
motion
tions, affidavits, etc.,
ously
sequence
well as to
provide
upset
appropriate
as
of as-
plaintiff’s
sertion of
cause of action
opportunity
prescribing
full
to amend.
thirty
day
remaining
respect
rule uses the
defendant. With
period
*3
right
generally,
word “shall”
we
that it is manda-
the
to amend
after a mo-
and
hold
made,
tory
discretionary.
summary judgment
and not
tion for
has been
Practice,
see Moore’s Federal
Second Edi-
bear
pleaded,
In this case the
as
facts
56.10,
tion,
p.
Volume
seq.
Section
2125et
ing on the
on
issue made
defendant’s sum
judges
mary judgment
Rule 15 tells trial
that
undisputed
motion are
and
leave to
given
freely
justice
is
amend shall be
when
question presented
only.
the
one of law
so
requires.
orderly
Henry
As Mr. Justice
said in
expedi
In the interest
and
of the
Warren,
litigation
(Tenn.
Branch v.
render error III. However, it apparent should be that where possibility there is the slightest that the provides 23-3105 Section in T.C.A. party opposing summary the motion for part: judgment has opportunity been denied the of “23-3105. Effect release or cove- affidavits, to file discovery depositions take liability nant not to sue of other amend, by disposition or the of a motion for a release tort-feasors.—When or covenant (30) a thirty without not to sue or not to enforce day filing interval of the following the mo given (1) good in faith to one of two (2) tion, it will be to remand necessary the case or more persons liable in tort for the to cure such error. injury death; same wrongful or the same (a) It discharge any does not of the II. liability other tort-feasors for from the It was an abuse of discretion to deny injury wrongful or death unless its terms plaintiff’s motion to amend under the cir so provide; reduces the but it claim cumstances in this case. Plaintiff’s settle against the the any others to extent of with Lee ment resulted Lawson’s asser by stipulated amount the release or the that, sustained, a legal tion of if principle covenant, or in the amount of the consid- extinguish would the cause of action based it, paid eration for whichever is the solely liability. on derivative This develop greater; and gave ment rise a by plain to consideration (b) discharges It the tort-feasor any possible tiff of of grounds independent whom given liability it is all from for negligence, little signifi which was of or no contribution to other any tort-feasor.” dilatory tactics, cance theretofore. No neg ligence or other fault can be attributed to urging that Act changed the Uniform plaintiff for failure to offer the proposed Craig, the supra, plaintiff rule of Stewart v. amendment earlier. was He entitled to ne language reasons the that Act em- gotiate a settlement one of parties with the joint as well braces vicarious tort-feasors as pursue and to of cause action active-passive tort-feasors and tort-feasors remaining party. plain the The fact that by “one language use of the of two tiff’s amendment no doubt have would re persons or more liable tort for the continuance, justifica a no quired provided injury.” same 23-3105. (Empha- T.C.A. § particular for denial sis supplied). tion in the circum- however, (f) 23-3102 as subsection which reads as argument persuasive; § our that not follows: research convinces us it was the intent of the on Commissioners Uniform “(f) chapter impair not This does Legislature Laws nor of our to em- State existing right indemnity under law. brace the derivative or vicarious is entitled to in- Where one tort-feasor scope of principals masters or within the another, demnity from 'T.C.A. 23-3105. § indemnity indemnity obligee is 'for contribution, indemnity obli-
The common law denied contribution entitled to contribution from gor is not theory among tort-feasors based of his obligee any portion indem- wrongdoers did not deserve assist- nity obligation.” achieving equal ance of the courts in or proportionate distribution of a common bur- comment observes Commissioners *4 (6) only den. Tennessee was one of six the 1939 Act single that sentence of recognize by judicial states to rule some there left it uncertain whether apparently among form of contribution tort-feasors any indemnity in situ- be contribution could enactment. prior any legislative to as follows: and continues ation “ 1939, there In the Commissioners on Uniform . It seems clear that . . promulgated Laws the first uniform be no contribution. Where a mas- State should among act for contribution tort- the tort of his providing vicariously ter is liable for adopted servant, act been possible feasors. The 1939 has the servant has no claim master; eight (8) jurisdictions. Apart any from ver- and the to contribution from the Act, (8) from eight sion of the states not need contribution Uniform master does it, statutes which are limited in their since he have the servant and will not seek master, indemnity. The joint judg- effect to between is entitled full contribution to course, from may ment defendants. Six other states have recover contribution he declaring right to whom has any rather brief statutes third tortfeasor contribution, Laws many questions indemnity.” that leave Uniform right no short, In it is interpretation by the courts. Annotated 66. at totally lacking a field of the law in uni- long recognized case law has Our formity. obtain right principal of the master or to 1955, agent the servant or in a indemnity In on Uniform from Commissioners liability g., situation. e. D. promulgated Laws a revision of the derivative See State 307, Act, Bayless, B. Loveman v. 128 Tenn. reconciling 1939 with a view to serious Co. (1913). An- 160 841 that existed. Uniform Laws S.W. variations notated, Civil Procedural and Remedial right indemnity Where the of full 12, 59- Edition, pp. Laws, Volume Master tort, persons liable in no exists between (1975). GO exists. right of contribution adopted the Üniform Con- legislature Our exists, Where no of contribution Feasors Act of 1955 Among Tort tributions Thus, purport act does not to intrude. 575, Acts 1968. Public by Chapter providing section that a covenant not to sue pro- Act the 1939 Uniform 6 of Section discharges the covenantee from contribu- as follows: vides discharge any tion and does not other tort not Indemnity. Act does feasor, application 6. to the master- has no
“§ —This indemnity servant, relationship, under ex- where impair any right principal-agent at liability solely Laws Annotated derivative. isting law.” Uniform relies four cases from Plaintiff have held that a jurisdictions that a sentence to the other The 1955 Act added agent or does not release of the servant appears it in T.C.A. indemnity section and
657 ON discharge principal or master even OPINION PETITION TO REHEAR recovery solely where is based vicari- Upon petition consideration of the liability. ous Craven, the rehear filed on behalf of Court Hellens, v. Corporation Hertz 140 So.2d is of the that we opinion did overlook (Fla.App.1962) 73 and Ritter Technicolor authority reaching or our points deci- 152, Corp., Cal.App.3d Cal.Rptr. 686 announced; petition sion heretofore and the (1972) involve interpretations of statutes of is therefore denied. that Florida California differ from 1939 and 1955 Uniform Contribution HENRY and Among Tort Feasors Acts. Also in the HYDER, Justice, Special Florida case the further distinction exists in the doctrine predicated upon dangerous that an automobile is a instru- California,
mentality. prior
adoption unique of that state’s contribution statutes,
among tort feasors case law had
held that the release of a servant did not
discharge the master. Draper,
Holve v.
95 Idaho
505 P.2d
*5
al.,
James Brown BRADEN et
(1973),
v.
101 R.I.
Raparot,
Smith
Petitioners,
565,
(1967),
demnity subsection of the 1939 Act.
IV.
The result is that defendant’s motion for only sustained
extent of discharging Lawson from de- liability predicated
rivative on a master- principal-agent
servant or relationship with
Lee.
The trial disallowing court’s decree plain-
tiff’s dismissing amendment and his suit is
reversed and the case is remanded to the
trial court for further proceedings consist- opinion.
ent with this adjudged Costs are
against defendant Lawson. HENRY and HYDER, Justice, Special
BROCK, J., participating.