*1 kum, 201 Tenn. mandamus, peremptory
A there writ of
fore, inappropriate. Moore v. Chan
dler,
(Tenn.1984). In
absence of a Board, part in-
cious action on the
junctive relief was also denied. trial court is af- appellant.
firmed at cost of cause be remanded to that court for collec-
will accrued for
tion of costs there and may necessary.
other orders which COOPER,
FONES, DROWOTA and
O’BRIEN, JJ., concur. GOSS, Appellant,
Hazel HUTCHINS,
John E. Es- Executor of the Myrtle Hutchins, Appellee.
tate of A.
Supreme Tennessee,
at Knoxville.
March 1988.
Rehearing May Denied
first A jury case. trial was held and the jury damages awarded plaintiff. held that applicable statute was not and the statute expired. limitations had granted We permission appeal.
On 18 October oper- automobile by George ated Goss collided with another automobile in County, Rhea Tennessee. Plaintiff, Goss, Hazel was a passenger in automobile, the Goss and sustained serious injuries as the result of the collision. The automobile, driver of the other Mrs. Annie Hutchins, Myrtle passenger, and her Mrs. Angel, Wanda F. injuries died from re- Defendant, ceived the accident. John E. Hutchins, is the executor of the estate of Myrtle Annie Hutchins. April
On 10 the executrix of the Angel estate of wrongful Wanda F. filed a death action George Goss and John Hutchins in his capacity as executor of Mrs. Hutchins’ estate. On 1 October George Goss filed a complaint cross and a counter complaint. Consolidated with Mr. complaint Goss’s cross and counter com- plaint plaintiff original Helen Goss’s complaint damages injuries for for she re- ceived the accident.1 The complaint consolidated read: GOSS, GOSS, E. GEORGE HAZEL (A MINOR), JOHNNY GOSS AND CON- (A MINOR), NIE GOSS b/n/f HAZEL Pectol, John Ben Dayton, appellant. for GOSS, Fritts, Gary Dayton, N. Mark A. Ram- Plaintiffs sey, Moore, Spears, Williams, Rebman & vs. Chattanooga, appellee. for THE ESTATE OF ANNIE MYRTLE HUTCHINS, AND THE ESTATE OF OPINION ANGEL, WANDA F.
FONES, Justice. Defendants This tort case brought after Goss, The summons in George et al. vs. prior non-suited a action. The Hutchins, trial court Myrtle Estate directed that denied summary defendant’s motion for the summons and be served Fritts, on “Gary based the contention that the Esq. Atty. N. for ‘Peanut’ personal representative of the Estate of Adm. of said Estate”.2 Accord- summons, Annie Hutchins had not ing been sued the sheriff served addition, original complaints 1. In qualified were tiled on 2. Mr. Hutchins as executor of the es- grandchildren, Myrtle question behalf of the tate of Annie been Hutchins. Goss’s two No has who accident, respect injured raised defendant with to this by plaintiff were also Johnson, Carpenter variance. next friend. (Tenn.1974) we held such a variance to immaterial. 2 No- then held and the awarded Gary Fritts on October 1981. On damages injuries in the amount of for “Estate of Annie vember 1981 the $45,000. Hutchins” filed its answer. answer pertinent part:
stated in Appeals held appeal, On the Court of granted plain-
that the trial court I. tiff's motion to amend her *3 addition, In held second action. the court complaint The fails a claim or to state 15.03, pursuant that to T.R.C.P. the amend- against cause of action this defendant to the com- complaint ed would relate back upon granted. may which relief 12 mencement of the second action on Feb- ruary 1983. The Court of then II. savings appli- not held that the statute was jurisdiction This defendant denies the plaintiff’s par- to action because the cable subject Court the matter of this over not identical ties to the second action were de- person and/or of this defendant and The parties with the to the first action. process nies that was issued plaintiff then concluded that as com- court and/or executed. expira- menced her second action after the limitations, ac- tion of the statute of that 1982, February plaintiff On 12 and her barred, tion was and the court ordered that voluntary a of husband entered non-suit action dismissed. pursuant their suit to T.R.C.P. 41.01. The first issue this Court must address is 1983, February plaintiff On 12 filed her proper whether decedent’s estate was a complaint complaint in this action. This party plaintiff’s defendant to action. captioned was “Hazel Goss vs. The Estate Myrtle of Annie Hutchins and the Estate of At common law an action could not be (The Angel.” against Wanda F. action the brought against tort feasor. a deceased Angel non-suited.) 85, 87, Estate was later The See, Stephens, 165 Tenn. Brown v. summons directed sheriff to 146, (1932) the serve 146 and cases there 52 S.W.2d 1935, Legislature abrogated “Peanut Administrator of said cited. In the Estate.” The by adopting summons indicates that rule the the common law February Hutchins served on predecessor 19 of the current T.C.A. provides This section in rele- 20-5-103. § April On 11 the Estate of Annie part: vant Myrtle Hutchins filed a motion to dismiss surviving death Causes tort-feasor.— of “improperly brought” against the action as (a) shall person In where a all cases representative. rather than its estate wrongful commit a tortious or act caus- addition, the estate filed a motion for another, proper- ing injury or death to summary judgment ground on the damage, person committing ty and such plaintiff’s statute of limitations barred ac- wrongful act shall die before suit is such tion. Plaintiff filed a motion to amend therefor, damages instituted to recover capacity in his complaint to sue defendant person shall not abate such death of such Myrtle of Hutch- as Executor of the Estate action which the cause of granted plaintiff’s mo- ins. The trial court had, but such would have otherwise complaint, to the and denied tion amend may survive and cause of action shall summary judgment. motion for defendant’s personal repre- against the prosecuted opinion, judge In his memorandum the trial wrong- such tort-feasor or sentative of Myrtle of Annie noted that the Estate doer. proper party not a defend- Hutchins was (b) abating such The rule common law ant, complaint amendment of the but that wrongdoer death of the upon actions the party proper to include a abrogat- commenced is and before suit is then held that the stat- proper. ed. plaintiffs limitations did not bar ute of does not create saving This survival statute operation due to the action preserves simply but statute, A trial was a new cause of T.C.A. 28-1-105. § 824 against argues
a cause of action a N.E.2d if tort-feasor who at 438. Defendant subsequently Coulter, complete dies. the first nullity, Goins action is 346, 348-49, Tenn. 206 S.W.2d statute cannot be used to avoid (1947). preserved by An action this section statute of limitations because there is noth- may only against ing personal be instituted to save. Id. representative of the tort-feasor. Brooks clearly bases his contention Garner, 624, 626, Tenn. only sued the estate of Annie Myrtle Hutchins her first action present
Plaintiffs cause action in caption complaint of filed in that is a tort case action tort-feasor action. 10.01 require T.R.C.P. does has subsequently caption who died. Plaintiff’s include cause of action parties. survived tort-feasors names of all plain- solely by virtue of tiff’s death T.C.A. in the first action identifies section, 20-5-103. Pursuant suit defendants “The Estate of Annie § *4 against may only be instituted Mrs. Hutch- Hutchins” and “The F. Estate of Wanda personal Thus, representative. Angel.” ins’ the caption identify Es- The does not the proper party personal was not a representative tate defendant to of either decedent. plaintiff’s action. The in Tennessee the rule before plaintiff The next issue is sued whether adoption of Civil the Tennessee Rules of personal representative the of the Hutch- correctly Procedure the was that failure to lawsuit, ins’ Estate in the filed on 1 first identify caption a in the not defendant 1981, the October so that second suit was a fatal defect if the bill itself stated a cause timely filed of by savings virtue the stat- against of action the defendant. See Alt ute. Bank, man v. Third National 30 Tenn. 81, 88, 701, argues savings App. (1947);
Defendant
stat-
704
inapplicable
present
Bank,
is
the
ute
action Rose v.
27 Tenn.
Third National
553, 564-65,
1,
App.
(1944).
first action sued
183
because
an
S.W.2d 5-6
argument
adoption
of
estate. Defendant cites
of the Tennessee Rules
general
changed
an
Civil
not
rule that
estate is not a
Procedure has
this rule.
party
Although
requires
proper
caption
to sue or be sued because an
Rule 10.01
legal entity.3
complaint
parties,
is not
of a
name all
is
estate
See McLean v.
this
Tenn.App.
(1926);
merely
requirement.
Chanabery, 5
276
a technical
See
see
also,
327,
Inc.,
Wagner,
Terry Wright,
331
Heuschel v.
73 Colo.
Blanchard v.
&
(1923);
467,
(6th Cir.1964),
denied,
P.
F.2d
215
476
Estate v.
469
cert.
Schoeller’s
Becker,
79,
831,
62,
(Su-
33 Conn.Sup.
Defendant did not receive either the summons or if had in Even fact sued an plaintiffs complaint. fact, defendant, estate her first defendant would through attorney, his filed an answer to have unable to utilize that fact been plaintiff's complaint. Defendant, having operation defeat the of the statute. plaintiff’s actual notice of summons and T.R.C.P. 9.01 states: complaint, being knowledgeable and of his relationship to the estate of Annie necessary is not Capacity.—It to aver plaintiffs knew that action capacity party of a to sue or sued be against the Estate was intended as a suit authority party or of a to sue or against capacity defendant as execu representative capacity in a or the sued Ross, tor of the estate. See Greenwood legal organized existence of an associa- (8th Cir.1985); F.2d 452 778 Miller v. persons party. tion of is made a Director, (S.D.N.Y. F.Supp. party desires to raise an issue When 1956); (2d Cir.1957). aff'd, 243 F.2d legal any party or as to the existence of clearly prejudiced by Defendant was not capacity any party or be to sue personal the omission the names of the representative capacity, sued in a he representatives caption. in the by specific negative shall do so aver-
Therefore, ment, support- shall include such we must conclude that al- which ing particulars peculiarly though of the as are within was defective, pleader’s knowledge. (Emphasis this prejudice defect did not de- added.) plaintiff, fendant. We hold that in her first asserting defendant’s answer that the OPINION ON PETITION TO REHEAR failed to state a claim complains that the Court of granted, denying which relief could be sub- Appeals gave and this Court consideration ject jurisdiction matter denying as well as only pre-trial upon by issues relied process issued and exe- defendant and overlooked issues that oc- cuted, does not meet Rule 9.01’s require- during curred the trial. specific
ment negative of a averment with We elect to address those issues rather supporting particulars. than relate their history appellate pointed herein, As pursuant out to T.C.A. courts why they were not heretofore 20-5-103, alleged an action § fully articulated. tort feasor is only who deceased can prosecuted against personal representa-
tive of such decedent. To raise the issue of I. legal lack of capacity existence or in this Defendant contends that the trial case, necessary it was that defendant an- prejudicial allowing committed error in Dr. swering representative on of the behalf plaintiff’s wrist, Dabbs to examine “in full estate, the decedent’s assert in clear and hearing open view and English, court single unmistakable that has a meaning, objection over party having eliciting to-wit: that no defendant’s ... un- legal capacity represent the decedent due sympathy plaintiff.” for has been process. sued served with The Mrs. Goss who multiple inju- sustained specific fact negative that such a averment ries on 18 October was treated at likely prompt will result in a curative County Hospital Rhea by a doctor other by plaintiff amendment does not reduce the than Dr. Dabbs. In December 1980 she stringency of the rule. Defendant’s coun- saw Dr. for Dabbs the first time. He argument sel in oral implicitly admitted testified that at that time he felt her frac- non-specif- the answer was couched in right significant tured wrist most ic terms to avoid that result. injury properly. because it had not healed Thus, we hold that did not x-rays He examined that revealed she had by specific negative raise motion or opinion a malunion of the bone which in his *6 legal averment the issue of the existence of difficulty. would cause future He decided Therefore, the estate in the first action. surgery, that she needed bone and since he defendant waived that issue. The effect of general surgeon awas he referred her to defendant’s waiver of that issue was that Pratt, orthopedic surgeon. Dr. an Dr. proper party against the prose- whom to performed Dabbs testified that Dr. Pratt action, cute representative the tort the of wrist, surgery right on Mrs. Goss’s remov- tort-feasor, the alleged deceased Annie ing part of the bone. While he did not sued and assist surgery, during at the he saw her served in the first parties action. As the in her hospitalization following Dr. the Pratt’s parties first action are identical to the surgery reports in the second and and as the second received from Dr. year action was filed within one of the Pratt. non-suit, voluntary statute is Against background plaintiff’s this coun- applicable to the instant case. if, opinion, sel asked Dr. Dabbs in his Mrs. reasons, foregoing judgment For the permanent any Goss had sustained disabili- reversed, of the Court of is and ty to her wrist. Defendant’s counsel ob- approving of the trial court jected ground on proper that a founda- jury verdict favor of is tion had not been established. adjudged affirmed. Costs are de- plaintiffs As direct de- examination and
fendant.
objections proceeded,
fendant’s
somewhat
HARBISON, C.J.,
COOPER,
sides,
inartfully on
judge
and
both
the trial
O’BRIEN, JJ.,
DROWOTA and
concur.
interceded and noted that
ex-
had
com-
upon
defendant now rests his
unspecified abnor-
which
hibited some obvious but
eliciting
sympathy of
right
jury
plaint,
had
to-wit:
undue
mality in her
wrist which the
by
if he had
been removed
seen. He then asked Dr. Dabbs
could have
operation.
requesting
Dr.
the exami-
timely objection
seen her wrist since the
that
presence
responded
place
that he had “seen her for
out of the
Dabbs
nation take
things
specifically
of
but I never
If
trial
had refused
jury.
a lot
to determine.”
could have inserted
request,
examined
wrist
then counsel
explaining
description
of the exami-
Implicitly, Dr. Dabbs was
into the record
nation,
any
other
required
not examined her and her wrist
the time
he had
specifically
pertinent
determine whether
not she
to a consideration
matters
examina-
any permanent disability.
appellate courts of whether the
had
sympathy.
tion could have aroused undue
at the trial the
point
From that
forward
is,
only
As it
the record shows
as
transcript reads
follows:
had a short look at a
jurors apparently
it
THE
Let him look at
now.
COURT:
years
operative
healed
scar almost four
that,
you do
doctor?
MR. PECTOL: Can
performed,
op-
operation
after the
you
Can
take a look at
wrist?
limi-
patient
eration which had left the
with
Sure,
happy to.
THE WITNESS:
joint.
tations of motion
the wrist
On
Honor, object
MR. FRITZ: Your
I
to this
record,
are unable to make
this
we
already
type
procedure
of
because he has
determination other than that the brief dis-
orthopedics
spe-
testified that
is not
hardly
play of the wrist could
inflame
type
specialty.
cific
of
juror.
passions of the most tender-hearted
you
THE
I
exam-
COURT: will let
cross
of this
Defendant has waived consideration
ine him on that.
Layne
Speight,
issue.
v.
See
(Tenn.1975)
Parker,
and Bass & Co.
EXAMINATION BY MR. PECTOL
(1961).
208 Tenn.
is
That is called the ulnar bone.
II.
The ulnar bone and the radius bone make
and third trial issues
Defendant’s second
up
joint.
one’s face of the
has
wrist
She
will
dealt with as
are interrelated and
degree
a rather severe
limitation
one issue.
motions,
very
her wrist
all
and it is a
*7
states the issues as follows:
very
I
Defendant
painful,
joint
tender
so—and
can
(1)
giving
erred in
the trial court
testify
degree of medical
whether
with reasonable
opinion
juror’s
an instruction that coerced
certainty
going
perma-
that this is
to be
deadlocked;
(2)
jury reported
after the
nent.
denying
trial court erred
whether the
Honor,
MR. RAMSEY: Your
would
we
a new trial in face
defendant’s motion for
objection.
like to enter an
that the instruction
juror
of the
affidavit
THE COURT: Overruled.
adversely influenced his deliberations.
transcript provides
descrip
no
The
begin
jury retired to
its deliberations
of how the examination of Mrs. Goss’s
tion
later,
minutes
at
p.m. Forty-three
2:27
at
conducted,
thereof
wrist was
the duration
to the court-
p.m.
jury
3:10
returned
counsel
any
or
other details. Defendant’s
following occurred.
room where the
contemporaneous objection to the
made no
at a
you
Have
arrived
THE COURT:
itself,
objection being di
examination
his
verdict, gentlemen
jury?
of the
solely to the fact that Dr. Dabbs
rected
No, sir.
MR.
orthopedic specialist.
was not an
The basis
COCHRAN:
THE
got
go
COURT: You’ve
ing
to
back
him to assent to or dissent from the
anything
out. Don’t tell me
more. Just
verdict or
concerning
indictment or
go
early
back out.
It’s
day.
You
processes
mental
in connection there-
go
all
back out.
Blackwell,
with-”
State v.
MR.
All right.
(Tenn.1984).
COCHRAN:
exceptions
The three
rule,
extraneous prejudicial
MR. PECTOL: Your Honor—
informa-
tion,
influence,
outside
and an antecedent
THE
you
COURT: Do
question
have a
agreement
to be bound by
quotient
or
you want to ask?
majority result were obviously not involved
No,
MR. COCHRAN:
sir. We don’t
Thus,
in this case.
juror
affidavit can-
any questions.
have
not be considered.
THE
you
COURT: Don’t tell me how
might
split.
go
Defendant
Just
back
also contends
out.
the trial
judge should have either declared a mistrial
MR.
I
COCHRAN: don’t think it will do
given
charge
approved
Kersey
any good
go
out,
v.
back
Your Honor.
State,
(Tenn.1975),
defendant charge. Kersey trial,
the motion for a new
presented the juror affidavit of one
effect was deadlocked before Tennessee, STATE of Judge return, Greer’s instruction to with Appellee/Appellant, implication the deadlock was opinion. caused affiant’s fixed The affi- say interpret- davit went on to that affiant Randolph Wayne BROBECK, Judge ed being Greer’s instruction as man- Appellant/Appellee. *8 datory in “in juror’s nature had to Supreme Tennessee, agree on a verdict” and that affiant “would at Knoxville. changed opinion not have being without 2,May
instructed by Judge to do so Greer.” juror may testify not ... as to “[A] anything upon effect of his or juror’s
other mind or emotions as influenc-