# Jurisdictional Statement — Gravel v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0281%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Jurisdictional Statement - **Published:** January 1, 1972 - **Citation:** 405 U.S. 916 ## Text } | . A aa Kempe v. Bader, 86 Tenn. 189 (1887). ian + © + & oe Knox v. Batson, “9 620, 399 S. W. 2d 765 (1966). . 7 . . . . oe . io . . - . "ss -_ ve Vv. Powder River Live Stock oe... 134 F. 434. (8th Cir.- 1944) | 7 © . . . o . ihe . . . . . . Langford Vv. Vanderbilt Univ., 199 Tenn. 389, : -287° Ss. ~ 32 (1956). . . . . . . > . . . . “ . ‘Layman v. Kell Ladders, Inc., 455 S.W.2d 594 (Tenn.\L970). 2 6 we ee we ee ee ew Lerner v. Casey, 357 U.S. 468 (1958) . . D>. es - Marcus v. Search .Warrants, 367.U.S. 717-(1961) 0% e McDaniel v. Mulvihill, 196 Tenn. ‘41, 263 ; S.W. 2d 75 (1953) * a * . . . . . eke . . : . . Missouri v. Lewis, 101 OB. an GCROGR0S c co e+e se ee Mullane v. Central Handver Bank & Trust Co., : 339 U. Ss. 306 (1950) - . . . . . . . . . o . . AZo NAACP v. Alabama ex sei* Dettetenn. 357 v.S. 449 (1958) Th. * - * + . _ * *. * . * * *. * Parker v. North Carolina, 397 U.S. 790 (1970)... ‘Peebles v. Green, 74 Tenn. 471,(1880)........ Rives v. international oil Burner Corp., 298 ae F. Supp. 1146 (E.D. Tenn..1969) .......2.6 Shapiro v. Thompson, 394 U.Sv'618 (1969) . Sullivan v. Little’ Hunting’ Park, Inc., 396 U.S. 229 (1969). . . . . . . . . . . ° e . ° e . . . . . - ‘Terry v. prac,» ea 628 (1877) 0s ae’ «2 2 pruax v. Corrigan, U.S. 312 (1921) ..s&.. mi . Vason v. Nickey, 438 F.2d 242 (€th Cir. 1970)... . 5 Williams v.. Georgia, 349 U.S. 375 (1955) .-. .... Zucht Vv. King, -260 U.S. 174 (1922) . t. a . . . . . . 19 34. 22 32 10 30 30 19 26 22 ans 33 19 28 25 passim 21, 36 25 11 35 30 Statutory Authorities ; U:S. CONST. amend. XIV .°-.. 2 6 0 ee ee tee ‘Judicial Code § 1257(2),. 28 U.S.C. §.1257(2) 2... TENN. CODE ANN. § 28-304. . * . . .e¢ e@ e ° ‘eee. e ° e | Tenn. Acts 1969, ch. es se ae ee 3g te TENN. SUP. CT. R. 14(4) . . *, . ° . . . ’ . . . | . TENN. SUP/ CT: R. 32.0 ee ee eee ee TENN. CT. APP. R. 124(4) : Other Authority RESTATEMENT OF CONFLICTS OF LAW §§ 603, 604 (1934) RESTATEMENT (SECOND) OF TORTS § 402A, (1966)... . Annot., Noncompliance with State Procedural Rule as Constituting "Adequate State Ground" for Denial of Relief so as to Preclude _ Supreme Court Review of Federal Questions, 24 L. EG. 2d 837 (1970) .. -. «© «© © © © © @ @ 2 4 Page . passim 29, 30 passim ‘37, 38 30, 32 . ad 34 oe ae SUPREME COURT OF THE UNITED STATES. OCTOBER TERM, 1971. J..W. HARGROVE, PLAINTIFF-APPELLANT, ; « _-vs- ‘C. L. NEWSOME, et al., DEFENDANT-APPELLEES.— -‘6n Appeal from the Supreme Court of Tennessee JURISDICTIONAL STATEMENT _. J. W. Haxgrove, the appellant here ‘anid the plaintiff, boléw, respectfully prays that this Court note puchabie juris- diction of its appeal seeking review of the judgment of the Supreme Court of Tennessee entered-in this case on September , 1971. = a - OPINION BELOW. The initial and supplementary opinions of the Supreme ~ Court of Tennessee are reported at 470.S.W.2d 348, “but are as cet weessentio$’ t0 the official reports of the Supreme Court of Tennessee. The-opinion denying the plaintiff's petition for re- hearing is unpublished. -All three opinions are set forth in . e / the Appendix. =: j e This proceeding originated, as an action in the Circuit Court for Davidson ‘County, Tennessee. It was a products | Lisdriee eetion iv which tis piatenitt, the’ weniiask here ;. sought to recover. for POTRORES. LAINE LOR received froma defec- tive mechanical dock. The trial court dismissed the action as parces. by the statute of limitations on July %, 1970. On appeal this dismissal -was affirmed on June 7, 1971. ‘On September. Vo 1971, a weneesen for rehearing was denied and judgment entered by the Supreme Court of Tennessee. Timely notice of “appeal to this Court was filed in the Supreme Court of Tennessee on December 2, 1971... : en Teisie ceca a The heenen Cxtuak of Tennessee ontaned its. judgment on September 7, 1971. ‘Its aise’ sad supplemental opinions had been filed on June 7, 1971 but because the plaintiff had. ey eC petitioned the state court for a rehearing, the judgment was entered at that time but did not become final until disposition of the rehearing petition. The petition for re- a hearing was denied, and judgment was entered on September 7, 1971.: Jurisdiction of fhis Court is invoked pursu.int to. section 1257(2) of the Judicial Code [28 8. S.C. § 1257 (2) ] this ) heang an appeal’ which’ draws into question the validity of - 2.6 § 28-304, on the anand that a€-is. xepugnant. al the Constitution of the United States. | 2 ‘As the Supreme Court of Tennessee applied TENN. CODE ANN. § 28-304, the general statute of limitations, to bar an “action betore injury’ had occurred in Spite of the appellant’ Ss: -assextion that. —e application was unconstitutional, this ‘matter - Walker elites: Co. ve Bondurant, Py) U.S. 282 (1921). is appropriately sit ci to this Court by appeal. _Dahnke- “Nor is there an acegente state ground. The Tennessee Sesininini Court cited- its rule, ‘TENN. SUP. CT.R. 14(4), in over- ruling the plaintiff's constitutional arguments. | certainly “a focedural state. ground as opposed to a substantive state ground so that the jurisdiction of this Court is not. brought | into question. .Henry v. Mississippi,. 379 U.S. 443 (1965). Evenso, this state procedural rule does not on its face.apply | to provide.state grounds for denying the plaintiff's. constitu- ‘tional claim and ;no .reported case has been found where: the. Tennessee appellate courts in overruling.a demurrer applied the cited rule or the analogous rule of the state Court’ of Appeals, TENN.. “er. APP. R. 12(4). At best, the Tennessee = _spreme Court's dismissal was se pet at worst, it was novel. In gither Gase, the reference to rule 14(4)-is,not « an . adequate state ground. See NAACP v. Alabama ex rel. Patterson, (357 U.S. 449 (1958) ("Novelty in procedural noypehranapts cannot : be permitted “to thwart review."). and Sullivan Vv. Little Hunting © Park, Inc., 396 U.S. 229 (1969) . ("(A] canes more properly deemed ‘discretipnary than jurisdictional, does not: bar review."),. “Moreover, the’ federal quentsan was timely. | Willians v2. Georgia, — 349 U.S. 375 (1955) ; Sullivan v: ache Hunting Park, supra. ” & e ? In the event that the Court does not consider appeal the proper mode-of review, the appellant requests that the - \ 949° (1969) er er ee ek a oe ee ee ee ee ee a ee ee ee > ee A | wae m4 . | ; al = ee upon as a petitian: for writ of certiorari pursuant ‘to Section 2203. of the Judicial Code ‘[28 U. s. | 7 - G@iversity courts to hold that Jackson's time-of-sale principle applied. , pons | 7 . ee ef | The present case is a products liability action. aris- ing out of injuries received by the plaintiff in an industrial accident ‘causéd by a defective’ mechanical ‘dock. Because the | dock nes. been. purchased over fourteen months alain the accident, the. state. courts neid that Jackson barred suit by the plain-~ | tiff .over two months before the isijury occurred. re] Thus, the questions presented are: a Whether\Tennessee' s one-year personal injury - limitation running fr the time of sale is so short that it denies plaintiffs a reasonable opportunity to be heard and to present claims recognized by state law to be valid,) thus violating. the due: process Cclause;. a - an ‘Whether the principle’ Jackson decision singles ~ ~ out a class for denial to them- of access to the courts pa the justification of a compell_ng governnental interest in. 4 i contravention of equal protection of the laws guaranteed by ~the fourteenth amendment. STATEMENT OF THE CASE. The Facts. This is a secausteAiability action for $60,000 for v4 . ' i coum injuries suffered by the plaintiff,-J. W. Hargrove, in an industrial accident on September 22, 19674 The accident was caused by a defect ina mechanical dock purchased by the plaintiff's employer, the Schroeder Division of Scoville Manu- factoring Company located in Dickson, “ennessee, from défendant, Ww. L. Newspme, doing business as Materials Handling ‘Service. THe date of sale was July 8, 1966. The ramp was manufactured by defendant, Kelley Company, and distributed through Newsome. | - The accident ovourred when the plaintif£-employee was operating a mobile fork lift in the course of his employment. tHe drove the fork: lift into the mechanical dock, a oafect in | the netioning of the dock caused the dock to incline at a steep angle ‘throwing the fork lift, with the plaintiff on it, backwards to the.ground level four feet below. - The lift rolled over.in mid-air, eee on top of the plaintite and severely injuring hin. Trial Court Proceedings. on September 20, 1969, the plaintff filed suit in ‘ibeouke court against these defendants, the. dock manufacturer and its sexties agent; alleging diversity al adieu damages * , for his injuries. At che tine of filing, two years and two months’ had elapsed Since the sale of the defective products. . The injury occurred: within one year of the filing. The declaration alleged: negligence, strict liability, and breach of rer The defendants demurred, contending e ’ the es te was barred by Tennessee' Ss general personal injury limitatjon, TENN. CODE ANN. § 28-304, and that the warranty ‘counts should be dismissed for lack of privity of contract. - The’ circuitecourt held that because more than one year had .elapsed prior to the initial filing, Jackson required the----~ dismissal of the negligence and striét liability counts; lack _ of privity barred the warranty count. a Proceédings’ in the State Supreme Court. -On appeal to the Supreme Court of Tennessee the plaintiff arguedy in addition’to advocating the abolition of_the privity requirement in warranty actions, that. the limitation™ . period coula not begin to run until some injury "however slight" was incurred by ‘the plaintiff. In the Tetnessee Court’ s 5 initial opinion the limitations issue,-even though raised, was ignored; the Court simply reversed its trend toward the abolition ef the no-privity defense. Ina supplemental opinion the state Supreme Court overruled the decisions of its intermediate court in Harts Vv. Tennessee Liquified Gas Corp., 2 Tenn: App. Bull. 207 (Ct. App. 1971); and the federal diversity courts in Hodge v. ‘Service Mach.-co., 438 F.2d 376 (6th Cir. 1970); Vason v. Nickey, 438 F.2d 242 (6th Cir. 1970). Hargrove immediately »etitioned for a PRPEANG Seseany two new authorities: the state workman's [eee limitation, and the fourteenth amendment of the federal .Consti- ‘tution. on September % the state court denied the rehearing and entered judgment, stating that TENN. SUP. CT. R. 14(4) justified denial of the additional ‘questions. From -this judg- ment the plaintiff appeals to this Court. * WHY THE QUESTIONS ARE SUBSTANTIAL This case arises Sut ae tnuiies-cabbecsa by J: W. Hargrove because - of a defect’ in a fourteen-month- old machine. _ The district court applying Tennessee’ 's ala pérsonal-— injury limitation held that the action became time-barred two months before the injury occurred. Hargrove has been ; denied any right to present his claim to the courts even though he. has a valid right-of action. — A limitation rule which bars recovery for injuries before they occur is manifestly unfair and irrational. It. brings to mind: the brand of justice ‘dispensed by Lewis Carroll's. Queen of Hearts. ‘Judge Jerome Frank, dissenting in Dincher _ “Marlin Firgarns Co., 198 F.2d 821 (2d Cir. 1952) pointed out the. anomaly of a- pre- an pety time-bar. 7 Except in topsy-turvy land, you cant die before you are conceived, or be divorced be- fore ever you marry, or harvest a crop never planted, or burn down a house never built, or | miss a train running on a non-existent railroad. For substantially similar reasons, it has always heretofore been accepted, as a sort of legal "axiom," that a statute of limitations does not begin to run. against a cause of action before oon that cause of action exists, i.e., before a judi- cial remedy is available to the plaintiff... As the: Conriecticut’ Supreme Court has ‘said, the policy behind-a limitations statute is that of penalizing on@ who "sleep[s] upon his © rights."* But no student of such legal somnolence . has ever explained how a man can sleep on a-right ‘he. does not have. ~ . .. 198 F.2d at 823. J. W. Hargrove did not sleep on his rights. He did not delay unnecessarily in bringing his action. Even under == Tennessee law, his rights are still alive. ‘the Law of Sens essee still. recognizes Hargrove’ s. right of action provided he ‘can find a forum-to present his claim. The most. rudimentary notion of justice demands that Tennessee allow Serene a “meaningful and appropriate hearing for a recognized claim. This notion is embedded in the federal Constitution. The question is whether the courts of ‘Tennessee cen, while recognizing an established right of action, close their doors to hear such claims before the transaction cunditing the action transpires. What more fundamental right can there be than the right to bring. a claim into the courts for. determina “tion: on the merits? Without that privilege all other legal rights become useless gestures, judicial principles devolve into empty axioms, and legal thought deteriorates into a mean- ingless metaphysics without connection with the. real world. The issue is not. whether Tennessee law ar cues products’ liability. certs. It\does. The issue is the right of access to the courts, the right ‘i a ‘hearing on the merits. - This right is fundamental to the due process of daw guaranteed by the napeceree: Coristitution. . . 441. S.W. 24a. 482, cert. denied, 396 U.S. 942 969), is at the . -9 core of this lawsuit. . It was a products liability action for” _ personal injuries which allegedly occurred when a defect in’ the. - brakes of the Jackson's cay caused it to suddenly roll. backward iets their .sloping driveway , striking and-injuring Mrs Jackson. The car, "purchased before the. uni form Commercial Code became _ effective in 1962, was ‘two and a hale years. old at the time of’ the accident. ae _ re, | QS $ ‘ % Box * Subsequently the Jacksons sued for these injuries, plead- : as ing negligence, warranties, and misrepresentation.. The Tenn- e essee Supreme Court, however, dismissed the action. All counts eo ‘barred by the weer personal-injury limitation, TENN. CODE ANN. s 28- 304, because the TonnerEee Court held that in : products liability: actions the Limitation period began running at the time of ‘Sale, not the time of injury. ‘ af Mee eb: : : The Tennessee Court has followed. Jackson in a subse- quent’ line of cases. In Layman’ 7. Keller Ladders , inc., 455 S.W. 2a 594 (Tenn. 1970), the state Supreme Court reaffirmed Jackson’ s time-of-sale principle in dismissing the plaintife: s negligence and strict tort liability counts. Unlike the product in ‘Jackson: ’ the Layman product was’ purchased subsequent to the efféctive tate of the Uniform Commercial Code. Because the UCC’ contains’ a specific limitation: for warranty actions thereunder, the Lay- man decision allowed the plaintiff to prodeed.on his warranty - count. In Bates We shapard, 461 S« We 2a 946. (Tenn. 1970), handed > _ down the nial on. which the present: case’ was _ argued, the Court again denied recovery eee the manufacturer of an allegedly defective auyémobi le on limitations groynds even though the “plaintifé, the car’ owner's girl friend. (and by the time of his filing, nis wife) had no ‘legal interest in the automobile — at the time of the accident. Warranty recovery was allowed against the automobile dealer! * * ; Finally in Flynn v. Camp, 470 S.W.2d 347 (Tenn. . 1971), nanded down the same day as the present case, the ooo Tennesgee Court” hela that the amendatory act passed by the legislature even before the Jackson decision became final, was ineffective to save an action for a defective product sold before the amendment's effective date. None of the Jackson: line of cases however involved lajuries to plaintiffg =e no legal remedy at all until | their injury until the sinaiiis case. In this case an em- ployee injured by a defective mechanical dock sought re- covery for his injuries. Despite prior indications that it might rule otherwise for uce products, the state Supreme Court reiterated the privity ‘requirement for warranty actions and refused to allow an employee to maintain an action for injuries suffered in the course of employment from his em- ‘ployer's equipment. In a supplemental Opinion the state Court also re- fused to accept this Court's holdings in Vason v..Nickey, 438,F.2d 242 (6th Cir. 1970) and in the first appeal in Hodge v. Service Machine Co., 438 F.2d 347 (6th Cir. 1970), . in which it was decided that some. “legally cognizable damage,” however slight, was necessary to cominence the Jackson limita- tion. Finally in ate thin opinion, an unpublished denial of a cobsentns, the state Supreme Court made it clear. -that for procedural reasons it had not considered the. -derite of the '. Material «Issues of’ ‘their: Claims. — lec ..The ‘limitations euie of 2eSSEoR ve General Motors fails ‘to satisfy due process of law because it does not allow plaintifts eo reasonable time within which: to present their clains, 1 hence i violating the ‘right’ to a hearifg guaranteed by the due" process" clause. Analysis, of’ state law in the manner followed by this | Court. in. | Bell Vv. Burson, supra, 402 U. Ss. §35, shows that the present plaintiff was: prevented ‘from —— any opportunity at - all for a hearing on his claim. The Burson case first analyzed. state é ; | ; law to determine’ which issues are ar . material. ‘The Court’ then. examined * } the state procedures to-determine . at the hearing opportunity afforded _ Be “was mange and eee satd.” In the Burson case; this Court analyzed the Georgia * . _ License-suspension procedure pn wah to determine whether ‘they were sufficient te provide Mr. Burson wwith an opportunity FOr a full hearing wadieh was "méaningful" and appropriate to the nature of the case." The Court ‘concluded Georgia: had de- ae : ¢ : prived Mr. Burson due process by refusing to allow. him to: ; a | present evidence that a. judgment Couns not be. réndered auainst | . } ? him in a “proceeding. where the only pee eas .- s the proceading was to secure such judgments: Georgia had no interest ih” srptectiae claimants of. unrecoverable judgments. * e a %, Ns Georgia’ s primary aygument contended that: fault and liabylity was irrelevant to its statutory scheme; chen¢e, a} s ee 2 ad : A 4 as fete Y ee, ee ee Te ie a ae 2 dit. rhe ine nee “a Pe - ‘4 hearing on the fault.issues was unnecessary: But an analysis - . by the federal Court showed conclusively that Georgia law ‘of * accident reparation was fr nrs SSS . + ‘Thus, we/are not -deali with ano-fault. ; scheme./ Since the statutory scheme makes P ; _ liability an important factor in the s?-.% ” State's determination to deprive an indivit - dual .of his license, the State may.not _ consistently with due process eliminate . consideration of that factor in its ‘_* : prior hearing. : ae, a 402 U.S. at 541. me. the present case we are not - dealing with a otetetesy . scheme whereby a. state oryate a Kight for only a limited time. e The state-law schene allows Hargrove A right of aption: it > ‘simply denies him a forum within which to bring such action. ° i be . . ——_ - Affter oustiinine state law to aetimminn the mntbiried \ y ‘ a at . , ° : $ issue, the Burson Court then analyzed the state's procedural mechanits to determine whether the procedural scheme provided ia a "mpeningtes® hearing “appropriatd &o ‘the nature of the case* . , - ° within the meanhétg of those criteria as stated in Armstrong + W Manzo, supra, 380 U.S. at 552, and Mullane Vi. Hanover Bank, supra, 339 U.S.‘at 313. The Court's conclusion was that the ; Georgia provision for hearing opportunity failed to meet the Gus-peocess standard. ‘~~. Itisa proposition which hardly seems to 7 need explication that a hearing which . excludes consideration of an element -° . rs essential to the decision whether ‘licenses -- > of the nature here involved shall be P ’ suspended does not meet this standard. ~ r eS - roar | “ 402 U.S.*at 542. we . . as . ; Under Bell v. pursoh, due process and its "oppor tunity- *s for-hearing ‘corollary ‘require: “that state procedure allow any - a : . . . ; | aiFe _. . é ; , : . person with an “important interest" in nee be given an opportunity to present any ‘evidence relevant to issues which under state. law are material to the determination of the interest. AS “we shall see, under this. test, ‘the Jackson ‘rule fails miserably; without ss the Hargrove’ Ss. ‘substantive soe. of action, Jackson vy. General Motors, when applied to the present cate, . : % completely withdraws from the plaintifé the right to present evidence to stteb kien his ee A Burson analysis of- the state law, . . _ shows. that, notwithstanding the a limitations bar, the plaintiff's claim- remains valid. The issues material to-the plaintiff's claim remain the same dfter the limita- tion..as BOLOES. “The. first Step in ‘the Supreme Court's analysis in ’ Bell v. Burson, supra, 402 U.S. 535, is an ‘examination of the state law to ascertain the material elements of the. claim. ‘In the present situation such an examination shows: | Pricing sy i that the -elements are the same, both before and after the linti- tation bars the* action, because the Jackson time-bar. does not — in any way affect the plaintiff's: substantive right. Under state law the limitation bars the remedy not .the right.. The common law ‘has always regarded the question of limitations as affecting only the remedy, and not the underlying subs«cantive ‘right. As early as Estes v. -Kyle, 19 Tenn.-.34 (1938) the Tennessee Court said: . Motac or .. an es -( With regard to the statutes. em limigations especially, there can be. no . doubt ... they are strictly questions =e. -e . . ; : . ? ~18- affecting the remedy, and not questions s — the merits. . 19 Fenn. ‘at 41. This statement -has been followed by the Tennéssee courts in an unbroken line of cases since that time: to ‘justify application of local limitations to ‘foreign laine. Barbour v. Erwin, 82 Tenn. 716; _ tae (1885);. McDaniel v. Mulvihill, 196 Tenh. 41, 44, 263 s. W. 2d 75 (1953). See also Kempe: v. Bader, 86 Tenn. 189. (1887) ; Peebles v. Green, 74 Fenn. 471 (1880); Hybbard Vv. Epps, 68 Tenn. 231 (1877); Gassaway Vv. Hopkins, 38 Tenn. 583 (1858). Compare RESTATEMENT OF CONFLICTS OF LAW §§ 603, 604 (1934). - al In the most recent of these cases, McDaniel-v. Mulvi- hill, 196°Tenn.. 41,. 236 S.W.2d 75 (1953), an action based on the Mississippi Wrongful Deati: Act was brought in-the Tennessee _-courts. | The Mississippi Death Act eer iied for no limitation period but instead a that state's general Limitation 7 f statute which allowed ‘Six years within ‘which to bring a death action. - The. trial court dismissed the case and the Tennessee a Court: upheld the. dismissal on the ground that while Mississippi ‘law -estab$ished the sight of: action, the Tennessee limitation law barred the remedy. Similarly,, the limitation bar of the Jacksen rule _bars the remedy afforded by the Seneoaiens court, but not the right of action. The plaintiff, without+a doubt, is entitled to relief if. he is allowed to. rove the ‘facts alleged ta the complaint. -In essence, Tennessee has created a right of action but has denied the plaintiff ayy reasonable Opportunity - e., to enforce that right of action. 19 . rom \ - Thus even while dismissing Hargrove! s abtion, it is clear that Tennessee law recognizes that Hargrave has a right 5 ps . of action for his ‘pro lucts liability injury. Yet under the state limitation law ‘he is precluded from the sa satel to prove. _ his right of action and* to obtain a 1 judgment. He is simply barred from any - remedy. to entorpe such right. He is not given the reasonable opportunity to be heard required by procedural due process... _/ Analysis of the. hearing afforded ~ 7 rah the plaintiff shows that it faiis, a miserably to measure up to the. -. Standards of meaningfulness and har rae appropriateness announced " in ean 7 7 Burson. nes e y . ° The second step in the Burson analysis is to aeter- L mine whéther is state | procedures allowed the plaintiff the | Opportunity to praesent evidence on each matérial issue. = > | o : : Due ‘process requirés- that the plaintiff ‘have. a reason- 3 | able ‘opportunity to pregelt his claim, including a eampenia time within which to: present: it: .Armstrong Vv. Manzo, soecd.. 380 U.S. 545, was clear. ae c ar oe . ~ j =} s ; ‘ A Fundamental requirement of don process. »~ iF ‘is "the Opportunity to be heard. oe oe oe ‘7 Opportunity which must be granted ‘at a’ | = ‘(Peohes is added. ) In AEDS EEONG » . the petitioher was notified of the pendency. of - the action only after the judgment had been entered. The . Supreme: Court struck » the late notice saying that it was too » . .\ late to be at a "meaning£ul time" in la proceedings. ilies a fo y ‘ feet: A Ss a ae 71, oe: . bee A hearing. at a "meaningful time". is-a hearing | in which the parties. have adequate notice and sufficient time té prepare, attend; and-present their hearing. ‘Under ‘Armstrong a party may ‘not be Ganied: an opportunity to present evidence until after. his ciate have been altered. Indeed, in Armstrong Vv. Manzo se a the petitioner | was at least allowed an opportunity to challenge the change in his rights, in “the present : case Hargrove — | received no such opportunity, the time-bar was irrevocable. J. W. Hargrove was barred even before he was injured. The omen court declared that - the proposition that the claim-. oye ant be. — a reasonable opportunity. to preadet evidence on- éach material element of ‘chi claim "hardly seems to need expli- cation." A fortiorari, the ” ecco to Hargrove of .any. right . all Z present any. evidemte is ey a denial of - the right to a. hearing granted by ine due process Clause. Cc. This Court Has Long Held that Due __. Process Requires. Reasonable Limitation __ Periods. re We have shown the development ‘of the opportunity ‘corollary: in ghe eink of recent Supreme Court decisions. d : y While only one aspect of ‘the right to an opportunity for a ae eu fair Saran is ‘the problem of. excessively short limitation | “period, it has long been firmly established that unreasonably ‘short limitation periods’ are contrary - to “— process of law: ‘ For example, in Terry Vv. Anderson, 95°U.S. 628 (1877), the. Supreme a sete a limitation marta hosing civil war. claims but on y becatise "a reasomable time is. ven yas ‘pelecs the bar takes: effect.". 95 U.S. ‘at 633. ne no | ff. ‘ments to. ‘bring the action. = i - P =k. . a 5 s - . ° * Pee. “ 4 ee Cite. . . ° Pa S A . ar . , | * ox : rh ‘In In‘ re Brown, 135°U.s. 662, 701, 708 (1890) this % “ie Court’ refused f ° allow Virginia ‘€dyplace a ‘one-year Limitation es on the enforce! ent = certain “bonds: issued by | that state ‘Because a the bondholders were widely scattered and _—. of them would | not. receive notite “of the ‘Limitation. in time to: make varrange-. , |-- ; =A . Ld ' Perr See er Lem Wi Powder. River Live Stock Co., 134 F.. 434, 439 (8th Cir. 1904) : ("A reasonable time... must be of “~ sufficient duration to Sefora full opportunity for resort Armstrong v. Manzo, supra} ‘supra, 401 U.S. 371; and Bel intention. to require unfalteping adherence to the opportuni ty- ‘claims are,the same after the limigation Yan’ as WOECES, but wowien - mae to. the courts for ‘the: - enféxcement of the rights upon which the — ’ limitation is intgnded to operate."). ~ at a i ) . s - j he 7 — ‘Because ckson' 's*limitation is, so . sho it denies a reasanable - ne _ Op tunity to'be heard, it is a denial of oe REQESSS as t Pi i : ’. as W. Migs is entitled ron a ‘reversal of the judg- ment below.’ Ir Nal lane ae ake supra, 339. U. s. 3063. - 380 U.S. 545;. Boddie v. Connecicut, : v. Burson, supra, “402 U. Ba - 3255 - the federal- supreme Court nae made manifestly elear its firm for-hearing corollary. “Every person is entitled ‘s a reason- able opportunity for a hearing on a material issue. An analysis 4 of state law shows that: the issues materia] +0. Hargrove’ $ e | y vite, because of the Jackson soe Hatgrove eee given a reason- able opportunity ‘to present these claims “The most’ rudiméen~ ‘ : a . 2 . a / 4. ss e: mates | - é «tary concepts of due process: demand ‘such: an opportunity to be §iven Hargrove. III. THE JACKSON. RULE DISTINGUISHES BETWEEN THOSE PERSONS - ENTITLED TO THE FUNDAMENTAL CONSTITUTIONAL INTEREST OF ACCESS TO THE COURTS WITHOUT BEING JUSTIFIED BY A COM- PELLING STAVE INTEREST; HENCE IT DENIES EQUAL PROTECT1UN- 3% OF THE LAWS. =... -- 5 | ? . Judicial review under the equal protection clause is. | ’ made in two levels: At a-minimum the clause raynseee that soak, classification have a ‘reasonable relation to. the objectives aaa cine “classification:. But beyond this minimum requirement, . o a state's classification limiting the exercise of constitutional rights, such as the right of access to the court), may be s° ra justified only if. there is a countervailing Sea govern- mental interest” requiring anu classification. , ‘Because the plaintiff is denied access to the courts, SOR ERAMY a ‘fundamental constitutional right, while others similarly situated are allowed to sue, and because there is . ; ise: ~ “no compelling governmental interest to juastity ‘ssuch a distinc- tion, the use of' the’ statute of. limitations, to bar them ‘from | access to the courts for their personal injuries is a deniul to them of: equal protection of the laws. A. Equal Protection Clause Requires. | a Compelling State Interest to cae . . Sustify Discrimination Against the | Exercise of a Fundamental Consti- tutional Interest. ° t . The Jackson rule-completely ‘excludes the plaintiffs. res tho courts of Tennessee without any compelling aovernmental . 6, TR es POEL EEE OE BE ERE POE IO NE Eg BC a TES SOO LES 7 a tego ee —S eer . - - interest. Because access .to the courts is-a constitutional right, a mere showing of rational relationship between the lassificetica and ‘kts objeckives is insufficient. _A *com- pelling governmental ‘inmenest* is necessary to surmount the- ‘requirements of the equal protection clause. — Under Jackson ‘the class’ o plaintiffs who in ‘dealing with a | product manage not to be interes until the product ais .. one . year old is completely barred from access to the courts. On the other hand, those plaintiffs who do not avoid injury for such a period are allowed to Maintain an action. This differentiation, which is ,made without the justification of —a-compeiting interest; is impermissible under the equal pro- tection clause. Be —— The "compelling interest" test was clearly stated in Shapiro v. Thompson, 394 U.S. 618 (1969). In that case the Supreme Court reviewed the constitutionality of Connecticut's ~ ‘iain residency requireiment. imposed as a prerequisite to - welfare payments. Finding that — a requirement Tw the iiteetinaeieitas seek te free travel, the Court refused to listen to the ‘state's argument that the en was reason- ably related to proper state interest. A more stringent | requirement. was imposed ‘by the Court to justify any Classifi- cation imposing upon constitutional cian. [A] ppellees were exercising a constitutional right, ana any classification which serves ‘to penalize the exercise of that right unless shown to be necessary to promote a compelling -governmental interest is unconstitutional. eos 394 U.S. at 634 (Emphasis in ——— oe . — rome) thee ree ome . -Since access to. the courts is indisputably a constitutional & _xight, = limitation upon ‘that right imposed upon: any class ' Of. plaintiffs violates the equal protection clause unless _jus- ” eee. Vv. Corrigan, -257 U.S... 312 (1921) = ‘Supreme Court struck tified by a compélling state interest. B. Access to the Courts is Indubitably a Fundamental Constitutional Right ne Entitled to the Maximum Protection . of the Equal Protection Clause. . a ’ . ° . e . - . ’ Indeed, . the most fundamental ae. constitutional rights is access to the courts.» Without. such access other rights, | constitutional or ‘honconstitutionai ; are “unenforceable. In . pe are down. an exception ‘to the general Arizona injunction statute prOnihs King the agent ene for labor disputes. ~The Court nase that the eausiity provision of the fourteenth amendment ry volmieuk: eet Po of accéss to. the courts. | [T] hey should — like access to'the courts of ‘the country for the protection of their . persons and property, the ,revention and — fo ee ‘redress of wrongs, and the enforcement of. . contracts ...°- 257 U.S. at 335. (Original in ; italics. ) Pa In Missouri, v. Lewis, 101 U.S. 22 (1880) the federal Suenees Me. aoe" oie pees while sitet territorial = eer in. judicial procedure, aia To} only with thie express proviso that the access. to the courts be denied to. none. | The ‘ake restcdetivn, as. to the equal _ protection ofthe laws, is not violated by any, diversity in the jurisdiction of the ' several courts as to subject matter, amount, or finality of decision, if all persons within the territorial limits of their. . é respective jurisdictions, have an equal right ; yn like cases, wid under like circumstan es, jo resort to them for redress. 4 | 101 U.S. at 30. / / Because “thie present plaintifs has. been denied equal access to the courts for the redress of his wrongs, withont ‘the justifi- cation of any "compelling governmental interest," he has: been denied equal protection. — : ee iat i ar eh 2y, . The Jackson rule is simply a procedural exclusion of | = plaintiffs from the courts of Tennessee, not based Dp - i: akan state law.’. The Jackson time-bar of 28- 314 in no: oe way restricts the plaintifé’ Ss’ cies et action if he can find a forum in which to /assert ‘such action; /ogEeee only bars the remedy in the Tennessée courts, 1 not tue right. Tennessee clearly recognizes the peeeenere’s right of action as indepen- dent’ from. the general personal-injury limitation, TENN. CODE - ANN. § 28-304. Because section 28-304 is a part of the State’ “os 7 general statute of Limitations, it bars. only the reinedy ‘and not the plaintiff's right of action.. The Limitations defense does not substantively affect the pld@intiff's right to bring the ilamaans 1 action or limit the defendants' ‘liability; it cee closes the doors of courts of the State of Tennessee to the assertion of the action. Thus it is clear that Tennessee’ s use of the Jackson limitation is in'no way a re- -fusal of the state. to recognize the plaintiff" s right of action ‘for substantive reasons. It is imply the blatant, denial to * . the plaintiff of ‘the constitutional right of access to ae courts. * . 3 ints Di¥ferentiation: Among Those cs. Seaseneen’ Has ‘No. Compelling Interest. oe ee aes Entitled to eue.. a * » . Of course | Tennessee has no "compelling governmental { intérest" to justify the denial ‘of access ‘to its courts to ee the present plaintife. Indeed SO compelling is the _state* interest requiring this, yikes that in the overwhelming | 2 » “majority of jurisdictions the | statute of limitations runs from . the date of injury — liability cases, at least! inso-" far as. the negligence counts. are concerned. ie | ’ . . . rd ‘ . : 6 -. ; . ; =! % a 4: ' ‘This is not to argue that statutes. of limitation: are ‘unconstitutional because they by Wefinition de distinguish eh between: those allowed access to’ ‘the court and those not. allowed. such access. The ordinary: limitation provision : - however justified by compelling state interests: “The state -interest in Mc acti, state claiins for which the evidence and vii witnesses! Memories: of the. ‘incident Nees faded wath ‘time, o/s “ : —“— : ri ’ and the state. interest in prom ting expedition . in the dis- position. of disputes. ‘Moreover, such ‘lim: tation ees are 327s avoidable. by prompt filing. , es aN 3 régarded as a "compelling govermmental interest..". is unique to this state. a » First. As we have seen; almost all other: states use the injury - re and there is no- Spy that the interest gought to be gained by Tennessee in the Jackson. classification — : . - “- Second. - In practice the Tennessee limitation does not even-~,rovide product writé-offs for three reasons: (1) It. only applies to produ¢sts sold in the hiatus between Jackson and. the. legislature’ s * sandetens amendment. (2) Even for those products it provides no ptotectio§ against out-of-state claims. , ¢ 7 ; ile (3) Under TENN. CODE ANN. § 28-107 Tennessee delays commence- ment of the limitation period in, products liability actions brought by minors until the plaintiff achieves his majority. ad +? e Rives v. International Oil Burner Corp., 298 PF. Supp. 1146. (E.D. Tenn. 1969). ' . Third. With the exception of the Jackson line of “cases, Tennessee has evinced: no compulsion to adopt a time- of-sale rule: Both the — Tennessee law and “fhe post- amendment. imitations rule utilize the time-of- -injury madara in cominencing — limitation provision contrary to the ‘Jackson suie. "eneenie fhe Jackson principle is not a "com= pelling governmental interest," Tennessee cannot deny the plaintiff access to its courts without denying him egual pro- Sl . * - tection of the law.. . =v Ww © ee EO Se oe et NN as =o SiN OANA LO ve JUKRLOUICLLON IV..° THE NATURE OF THE CASE AND. THE DECISIONS OF THIS ‘COURT — tHIS CASE WITHIN SECTION 1257(2). Section 1257 (2) provides the basis of. this Court! Ss ‘Sprisdiction in this appeal. It provides that: — | Final Seteinnke or decrees rendered by - the highest court of a State -in which a | decision could be had, may be reviewed by ‘ the Supreme Gourt as follows: (2) By appeal, where is drawn in question the validity of a statute of any state on the ground of its being repugnant to-the Constitution, -treaties or laws of. the United States, and the decision is in favor of its validity. ' Judicial Code § 1257(2). Since the appes ant: raised constitutional objections to the use of the statute of limitations, RENN. CODE ANN. § 28- "304, by the state court below but the limitation was applied over this object- ion, the only question concurring the applicability of section 1257(2) is whether Hargrove's constitutional challenge was directed at the "validity" of the state statute. This question a whether ‘the valiafty of the statute was attacked is brought about by the fact that the appellant does not challenge the general validity of TENN. CODE ANN. § 28-304. ‘He only challenges the construction given that statute by the Senendeoe Court in products liability cases. Such a challenge to a statute's application is sufficient, however, to bring the case within the ambit of section 1257(2). In Dahnke-+Walker Milling Co. v. Bondurant, 257 U.S. 282 (1921) this Court sustained an appeal even though the state question. In their discretion they declined to do sa. ‘statute Compiarned Was Skat chaiienged | ausolar as- di euraeiicu’ ° interstate commerce. The Dahnke Secseane is still viable today, having been applied in Marcus Vv. iieeeh Rersente. 367 U.S. 717, % 721 (1961) and Cohen v. California, 91 S.Ct. 1780, 1784 (1971). Evén stieaieaii it is directed to the validity of T.C... § 28-304 only as applied ia 5 ekes of cases and. not its general velidite, the present challenge to the state etiiie is not focused upon ‘the weighing of evidence or the exercise of . discretionary authority under the statute. Hence Lerner v. ae Casey, 357 U.S. 468-41958)—and Zucht v. King, 260 U.S. 174 — (1922) do not apply. Because the state statute's application is. entirely mechanical, the Dahnke doctrine affords review: here on appeal. a REVIEW IN THIS COURT IS NOT PRECLUDED BY THE STATE PROCEDURAL GROUND. “ P " e The Tennessee Court relied on its rule 14(4) .to dis- miss the appellant’ S constitutional contentions. This dis- cretionary rule provides that the state Supreme Court will - not consider errors not presented at the trial level. Because the-app}hication of that rule to the present. : case, was novel, because its application in the present case wee not justified, and because the rule is discretionary, it does not provide“an adequate state ground for the judg- ment below. Because the present Case went up on. a demurrer withou. 2 trial and th- , lcauings properly presented the issues, rule 14(4) had no applicability. No Tennessee decision - © las peeh- Lound applylug ruse L444). ol the ‘state Supreme court, Sed ie eee or its analogue, rule 12 (4) of: the state Court of iii On . a demurrer or, more generally, to limit the theories presented ‘to the mera court on a well=- “developed factual ‘record. eat i —“Tndeed, in Poss Vv. Dixie Sanda. & Gravel Co. 458 S.W.2d 625, —— | 627 (‘tenn App. 1970) ; cert. iio: the Tennessee appellate court: glowed appellate objection ba aes court's jury charge given without exception. “Such novelty in’ procedural : = . requirement will ‘not preclude review here. MAGE v. Alabama ex rel. Patterson,- 357 U.S. 449 (1958). Indeed, a ‘procedural , .- —o e { rule which limits the A which may be presented in the appellate courts. even though the factual- ‘record is sufficiently developed to clearly present to such courts ‘the SaONG is a progaeere: without a ‘justifying state interest. Under Henr ry Vv. Mississippi, 379 U.S. 443 (1965) such a rule cannot be a state ground adequate: to preclude review here. But the most obvious reason that the procedural, state - ground is Lapdeaeate is that it was a discretionary rule. In Sullivan v. Little Hunting Park, Inc., 396 U.S. 299 (1969),. _ this Court réfuged to allow a discretionary procedural ‘state ground to preclyde review of federal questions in this Court. [The Virginia] decisgons do not enable us to say that the Virginia court has . so consistently applied its notice requirement as to amount to a self- denial of the power to entertain the federal claim here presented if. the Supreme Court-of Appeals desires to ‘do so. See Henry v. Mississi pd ; 2 Bee BAe 452- aS Pee Se. Juty 5371-573, 13-L.sEd. ta 408° (Black, J., dissenting). Such.a rule, more properlydeemed discretionary than here by certiorari.; ° oe : 396 U. -S; at 235. ry 3% : Although Sullivan inypived review. on | a writ of certiorari ~ f f and” the oe. case is an appeal, any ‘distinction in the od adequate state peasant: Games on certiorari and the iste on ; : . - 6 ‘ ; se appeal is artificial anc should be avoided. ms x The Tennessee procedural rule used below has long been segegns sef as completely discretionary insofar as’ consti- tutional questions are concerned. In Frazier v. Elmore, 180 Tenn. 232, 173 S.W.2a 563 (1943) the Tennessee Court said : \ ' that: ste ated ie a : wile it is true that the rules of. this Court provide that .all questions ‘ ... shall have beeh raised in the 4 trial Court and relied on in the ; assignments of error, this limitation. is not binding on this Court... where the constitutionality of statutes is involved. . . Lo . 2 Sat "180 Tenn: at 242, 173 S.W.2d at Lea , . 2 The state court then went on to say that appellate courts: have "broad - ‘discretionary powers". .in dealing with such matters of practice." See also Langford v. Vanderbilt Univ., 199 Tenn. 389, 404, 287 S.W.2d 32 (1956).. Thus it is cléar that the use of rule 14(4) to dispose ofa constitutional issue was discretionary. 4 eae Toe ae of ou | Under Sullivan v. Little Hunting Park, supra, 396 U.S. 229, a discretionary state rule of? procedure ie cannot be an adequate state ground to preclude review in _the federal Supreme Court. a ‘In Williams vy. Georgia, 349 U. Sg 375, 382-83 (1955) this | Court made the distinction clear. : . ee = , A, state. procedural rule which forbids ‘ the raising of federal questions ‘at late stagés in the case, or by any other than a» ‘prescribed method, has been recognized -as.afvalid exercise of state power. .The * prinéiple is lear enough. ... Thus, we fan eae would have a different question. from that. | _. eB. before us if the trial court. had no ‘power j “to consider Williams'. constitutional’ objection’ at the belated time he raised it, But, where a State allows questions — of/this sort to be raised at a late Pe . ; stage and be determined by its. courts .as - a matter of discretion; .we are not.” concluded from assuming jurisdiction and Be . 3 ” deciding whether the state court action * in the particular circumstances is, in effect, an avoidance of the Setqres erat me iam 349 U.S. at 382-83. The Court then noted that while such motiong were “not favored," they could grant relief in" exceptional’ or - "extraordinary" cases" ; thus the state court had @isvretion ta the refusal of the federal claims. See also suilivan v. Little Hunting Park, Inc., supra, 396 U.S. 229. See generally Anhot, Noncompliance with State Procedural Rule ‘as Constitufing “Adeguate State Ground" for Denial of ‘ Relief so as to Preclude Supreme.Court Review of Federal Questions, 24 L. Ed. "2d. 837, 845-49 ° (1970). \. The, Tennessee rehearing procedure is strikingly ‘similar to that of Georgia in’ the, Williams case. Certainly . > ; . S . : 7 és . a . new issues can be raised at that stage; rule 32, 4 2 of the Tennessee Supreme Court specifies that the rehearing petition will be refused “where no new argument is made, and no new authority adduced." An’ example of the practice under this A rule is found in Knox v. Batson, 217 Tenn. 62 399 S.W.2d 765 (1966). In that case the Semenees Ss eme Court said that the rehearing petition. should be ed-only if "some new and decisive authority hes’ been discovered which was overlooked by this Court." 217 Tenn. at 641, 399 S.W.2d at 775. The i high court then discussed and distin- y quished the o new authority cited. Thus it is clear that the procedural rules and established practice of the Tennessee courts allowed consideration of the federal 7 - > 4 Such discretion by. the state court is not sufficient - to preclude review here. Sullivan v: Little Hunting Park, y rae : ree : . . : " Inc., supra, 396 U.S. 229, and Williams v. Georgia, supra, 349 U.S. 375.° The Sullivan-Williams rule : is consistent wha: a the fundamental precepts weet federalism pen with the appellate function of the Court. PART THREE: THE QUESTIONS REQUIRE PLENARY CONSIDERATION The federal questions are not only substantial in the sense of Zucht v. King, supra,’ 260 U.S. 174; they are | also substantial in the sense that they | ‘are ANPOCCARE, so important that they require pipnary consideration by this Court. Their importance stems from these significant, areas: the broad principles involvéd, the precedent necessary to prevent injustice, and the present plairtiff's right to fair dealing in the presentation of his claim to the courts. 2 In the first place they are impertant because they involve the application of broad fundaniental princisies in the context of products liability cases, ot ‘eeaiadibiana field of litigation. The fundamental principle involved is the right of access to the courts. As we have seén, there is no doubt as to_.the fundamental nature of the right of access to the Gourts. This Court has unfalteringly adhered to its holdings that due® process ‘requires a hearing on all.material issues before a party's rights can be altered. - Bell Vv. Burson, Supra, 402 U.S. 535; Mullane v. Hanover. Bank, Supra, 339 U.S. 305; Armstrong Vv. Manzo, supra, 380 U.S. 545. Indeed the federal questions here presented are important. 2 rer that the answer to these questions will reiterate in modern’ - ees context the constitutional requirement of reasonable limitation — - — periods found in terry Vv. Anderson, supra, 95 U.S. 628; In re Brown, supra, 135 U.S. 701, and other older decisions of this Court, but which, while apparently still accepted by the Court, have not been reiterated in recent years. oy 4 - | — The federal questions are important because they analyze the right of access to the Courts and the. requirement of reasonable limitation. periods in products liability cases, an area of the hate which gains significance ‘continually in vig our increasingly consumer-oriented society. Every state has now accepted the ‘principle that manufacturers are liable in enattiend regardless of privity and with the recent advent of RESTATEMENT (SECOND) OF TORTS § 402A (1966) and “the abolition of ay: 2 pyerany requirement, the number of cases is continually increasing. Because the federal guéstion involved here involves the right of” access to. ‘the courts in such actions, they are extremely important. The second area of importance in the federal questions ' here presented stems frdm the necessity of- establishing a federal ~ precedent to Overrule the rule of Jackson Vv. “General Motors, supra,. 44] S.W.2d 482 which is being given such sway-in Tennessee. Even though the legislature attempted-to reverse Jackson, Tenn... 2 Acts 1969,: ch. 293, the Tennessee problem is aggatentiz permanent for several reasons: First, the amendment. applied - only to personal injuries, not property damage. neta A Flynn Vv. Camp, supra, 470 Ss. ,W. 2d 347 applies the Jackson \rule . to post-amendment accidents caused by products sold prior to the amendment. _ And finally, the amendment may be invalid; one state court has held the anti- Jackson amendment — is unconsti- tutional. Dobbins v. Terrazo Mach. & Suapiy Co., No. B-7122 (Davidson County Cir. Ct., Oct. 2, 1971). Furthermore, the Tennessee courts regard this Court. alone as binding authority on federal questions, Brown v. State, 466.S.W.2d 527, 528 (Tenn: ‘Crim. App. 1971); so this Court alone can establish a binding precedent. Thus, in addition to the ‘broad policy reasons for the importance of: the federal questions, Tennessee desperately needs the establishment of a federal precedent - in this area. _# | The final reason for the importance of the’ federal questions here ecannniet is the apbesatty ot doing justice in the case at- bar. As we noted in Part One, applying the ‘limitation stated to Mr. Hargrove is imdeed a denial to him . of nn process and equal protection. His right, as ‘an individual litigant, to be given justice in his case is a matter ,of. impor’ tance which eo mandates plenary consideration of the present sii. , oo 7 ape Because of a necessity of juekiow & in the present case, the need for. a precedent for tien Tennessee courts, and the significance of the broad policy issues invelved, the federal questions are so important and substantial that they require plenary consideration by this Court..- ec > CONCLUSION For all the foregoing reasons, probable jurisdic- tion should be noted. ~ iy ae ee Respectfully submitted, WEBS ML ee '° 10 Arcade gi has Dickson, Ren Be GULLETT, STEELE, SANFORD, “ROBINSON & MERRITT Oliver B..Dickins "Life & Casualty Tower ~ Nashville, Tenhessee 37219 - Attorneys for the Appellant.. . \ e.3 \ . ‘ s * | | : | «35~ é —~ ‘TABLE OF CONTENTS ° . Initial Opinion e re e. . . e Appendix. Balled 18g f &,. t ‘ t / oe ff ae o af op” > ’ é af : a ” & 4 . road r eae : ' ° a e : ” ° =e . - . - ee 8 Fie 3 FOR PUBLICATION Se te hs | : JUKE 7, 1971 : . s J. W. HARGROVE, ) 7 ) : ; Appellant os ~2 ; ) Davidson Law-—_ “e ) ae - . - Vv. . ) Honorable Roy A. Miles, Jucse . ) a ) ¥. L. NZWSOME, aba, MATERIALS .. HANDLING SERVICES and KeLiey =) COMPANY, Inc. ‘ j : } / Appellees X ° : , William W. Halil, “7 J. Ce Summers, Dickson, Tennessee . Howser, Thomas, Susners é ‘ Binkley Oliver B. Dickins, : Sashville, .Tenneisee Gullest, Steele, Sanford, Robinson and Merritt . ille, Tennessee — For: "We Le Sewso-e, éba, Materials Kanéling Services : * Sohn K. Madéin, Jr., we S. : Gracey, Buck, Maddin & Cowen Sashville, Tennessee . - For: Kelley Compary. S26. L- : : ’ se ea * ° > ' QELizioOg - > . . a” ‘ This case cones to this Court from the action of tie trial judge 4a rated omrsere filed in answer to the Gectaze- gion, dismissing the suit. tn this opinion the parties ware >e ae pers to. as they appeared in the trial court: that is, is = sargrove, as —— and W. CL. Sewsone, cba, Materials Hand as-s —- 4 Services, and Kelley Co=zpany,. tne, as Cefendants, or by a-e. 5 , * , Anpefidi«x erin ee ee ' September 16, 1968 against both defendants on the theory a Plaintifé ‘is an abies va tre Schrader Division oz Scoville Manufacturing — On July &, 1966, Schra¢ Yr pur-. chased a mechanical dock fron the defendant Newsone,, which aie was manufactured by the defendant Kelley. On September 22, 1967, plaintife, while acting in the course of his employ=zent with Schrader, was seriously injured due to an alleged mal- function of the mechanical dock.: This suit was filed on . (1) common law negligence, (2) express and implied warrancy,, and (3) strict liability sounding in tort. | -The' negligence and strict liability counts were cis- missed as being barred by the enényets statute Of iimitations “under T.c. A. §28-304 in OtSept prior to its amendment by Chaptez 239, Public Acts .of 1969. The warfanty counts were Gis nissec for lack of privity of contract. - at this point we would like to aoa Our apprecia- tion See the help afforded this Court by the excellent ‘briefs filed by counsel ue all parties. . a ll Counsel for plaintifs frankly and candidly acmits under previous decisions pf this court the trial judseewas ccx- rect in sustaining the Gemurrers. The thrust of the aréuxe:: 2 here is that the requirenent of privity of contract in warren: ‘actions - is neither suet ities by past wmberity or by any puplic. policy argument. ; . Appendix - -3- \ We agree as plaintifs argues the cotrts of several states feeling.a need for a more satisfactory remedy in products - liability cases for consumers injured by Gefective products to obtain ae: eee against remote manufacturers accomplished this end by abolishing the. requirement of privity of contract ia . warranty actions. In view of the Uniform Sales Act adopted in most: jurisdictions various expedients have been used to circumvent the - * * - requirement of privity of contract; among them (1) the theory of . rr beneficiary contract, (2) agency theory, and (3) waz- ranty shining wate the gooGs similar to a covenant running with the land. These methods and others have been ‘praised by .some writers and condemned by others. Be that as it may, it is xox necessary for the decision in the case ot bar for us to discuss * - - the uerits of these*methods. od . . » 78 : * On this issue plaintiff cites as the lanémark case ei * 4 -er.ninesen v. mfield Bl tors, 32 X.J3. 358, 161 A.24 69 (1960). In view of the more recent Sew Jersey cases of Santor v. 2 « = Xkaracheusian, Inc:, 44 Nid. 52, 207 A.24 305 (1965), gaa Schi=ser * v. Levitt & Sons, 44 N.J. 70, 207 A2d 314 (1965). it is like? y true as stated in an article in Rutgers Law Review, vol. 13, p. 693, thet in New jane « Seaeaty has no vitality. In reaGing these - thrée New Jersey cases” it -is difficult to determine Whether they © - were decided upon the principle of strict liabilit in tort or _— Pp y upon the theory of implied warranty. Although the Uniform Si °cs e. Act and the mote recent Uniform Commercial Code were Dots acopted Appendix — | | - + ire e a a vary 1, 1963, these cases on the issue of privity give scant con- “need for abolishing vertical privity requirements at least amon in New Jersey, the Uniform Commercial Code being effective Jan- sideration to these statutes. These three cases and the Uniform -. . . eee ; ‘ Commercial Code are discussed in.the above mentioned Rutgers Law a j . gage r : : } ™ Review. * On the theory plaintiff argues, particularly on the public policy argument, the case of Chapman v. Rrown, 198 F.Supp. 78 (1961), affirmed 304°F.2d 149 (1962), is well reasoned. This case deals directly with the issue of privity and its rélation to the Uniform Sales Act in a- products liability case. cl We have considered all the authority cited by plain- ’ tifl giving the reasons for the need of now abolishing privity of contract in warranty actions. Under the view we take of the matter it is not necessary toaain list or discuss these reasons. . g In products liability. cases this Court has consistent-y required privity of contract-in warranty actions. Kyker v. Genevs “Motors Corp., 214 Tenn. 521, 381 S,W.2d 684 (1964);" Olney v. Bées- man:Bottling Co., 220 Tenn. 459, 418 S.W.2a 430 (1967). ° The rea- “sons and authority therefor are stated ‘in these opinions. Plain- tiff does cite the redent case of Layman v. Keller Ladders, inc. Tenn. , 455 S.W.2d 594 (1970), to support a statement that “In this case (Layman) .this Court hinted that it recognized the in ~ Appendix . Aa? members of the distributive chain." The only isste in lavear . ng . ‘ Spirenent of: privity in warranty actions, except for one reason - of limitations: . = ‘ “ ° . > . 2 was the.statute of limitations applicable to AW: Oz, tha , i \ ‘ease. Layman-does not mgdify the holdings in Kyker and O2n:1'. ‘ re We might well be persuaded by the arguments based a public policy in regard to the need for wien Waitn the re- we consider controlling. Plaintiff.had a remedy uncer*either his count on negligence or undér the count on strict liability in . . 2 7 . . tort. The fact plaintiff under both these counts is unfortunately barred by a statute of limitations is not material to our decision. since all civil actions are sooner or later barred by a statute - ° x . / e . . _- ws Re eo P - o... ; R f It is next argued under the Uniform Commercial Code. adopted in this state and made effective July l, 1964, by enact- ment of Chapter 81, Public Acts of 1963, this Court should re- consider the requirement of privity in warranty actions. Thre events giving rise to Kyker v. General Motors; supra, and Olnev v Beaman, supra, occurred prior to adoption in this state ‘ofthe a 5 . a : ; Uniform Commercial Code and the point raised here in reference to . * . 5 ‘ . ; ° tHis Code is of first impression in this State. The section of ae Unifozum Commereéal Code pertinent to this issue is T.C.A.§47- which reads as follows: * Vv a - . A seller's warranty whether express or im- plied*extends to any natural person who is in the fdmily or household of his buyer or -— Appendix a “te . ow “ vee fae and who is injuréd in person.by breach of language used, particularly where. the lariguage! ‘we in “D.C.AL. a ‘ v . . je . . were who is a guest in his home if it-is rea- sonable to expect that such person may use, consume or be affected by the goods . the warranty. A,seller may not exclude or ee cue limit the operation of this section.- , The effect of this statute is to abolish the require- ment of privity of contract for personal injuries: received uncer - . 3 oy or . : os certain circumstances as to a member of the buyer's fattily, his household or a guest in his home in warranty. actions brought against the buyer's immediate iia a ‘To this extent this ‘statute - changes the law in this. state. - The argument here is that thi apne Palas a ‘legislative change in pur Law should be extended to include: all persons forgseeably, « affected by the products’ defects, at earl ‘ sesmecuan plaintice does not fall into any of. the listed categoriés 5 a Uni fock Connezcial Code was written unser the’ direction: of te Pe manent Editorial Board’ and recennended to the ; - legislatures of A petal silainn for =, on the aay, would make the law uniform in all ‘states regarding commercial | | ° sibdieneltnkar beset by ‘hie eis The value of the Code apace. to a large measyre eel. its uniformity, particularly as to the . ‘ : judicial construction courts. give to the’ _— used. This (-, *- should ‘inhibit courts from either “extending ont" eontract ing the — 7 §47- -2-318, “én the issue here, is clear containinig-no ambiguities. . ; - . : . 5 ‘ . “. ee oh \ “ ‘ . Appendix ae : =. Ce ae ei ea | SEPTEMBER 7, \ \ ° ‘ e . . - . \ . i During the time this Code was being written che issic of privity of contract im products liability gases was being Tis- \ _ assed pro and con in opinions by @ musber of courts and Gise by ~~ various other legal scholars. In the preparation of Section “2-316 . the issue of privity wes considered. One version of this section (generally referred to.as thé Virginia-wyoming versioad which abolished privity of contract was cons {dered by the Perzanext Editorial Board and rejected. The legislatures of 4 nusber of states ‘in| béopting a Uniform Commercial Code modifiec Section 2-318, weigh modi fications erawaliy went ‘further in abolishing the requirement of privity of, contract than does Section 2-216 recommended ad the Permanent Editorial ‘Board. We consider these facts pertinent since the Tennessee Jovislacere chose to adopt \_ the version of Section 2-316 recommended by the Permanent Baitorial Board. 5 - . Ia er a of this gatter we conclusively presune the Legislature at the time of its enactment of the Unifors Commercial Code had knowledge that under the law of this state privity of contract was required in warranty @ctions* — products Liability | cases. Purther, the Legislature with this knowledge enacted T.C.A. §47-2-318, which does charge the law as to privity of contract in warranty actions, bct aise clearly delineates the extent of the change. Under thioe cir- cumstances to extend to any persof not within. the categories . meritioned in the statute the right to bring an aetion upon, warranty without privity of contract would, in effect, be ie ‘ | ‘*~ . oe Appendix - ee y-1 ——— % amending the statute undey the guise of judicial constryction. This we should not do. i | : The judgment of the lower court is affirmec. Chattin, Creson, Humpnareys, anc MeCanless, JJ. concur : SS W. DYER, lef Justice - S «s - . , * a ’ - ° After the above opinion had been pregered, consice-s.c and approved by the Court, Plaintiff fided a supplemental bries Girected to*the counts of common law negligence and strict 1} 16" ‘bility sounding in tort. Reply briefs have been -filec and we have again considered the case as to these counts. The negVigence and strict. liability counts were Gis- missed on authority. of Jackson v.-General Motors Corsoration, plaintiff cites three recent cases. arising out of the Unites States District. Courts in Tennessee to ae an argument tract - - - a = under the facts of the case at bar sie ies v. General Motors + ow > Corporation, supra, is not applicable. We have carefully co:- sidered the federal cases cited -and are of the opinion Jecxs= atlhig epeemamaiene to the case- at bar. .In Jackson v. General Motors ¢ Corporati mi, supra, we held the applicabi¢ is agama T.C.A:§26-304," (prior to amenénent} commences to run at. the date of the sa ere act Or Omission * . whether the damages occasiohed- were on the sage date « ox later.. In. the case at bar the wrongful act or omission was occas ion2eg “on the Gate of the sale (July 8, 1986), and suit) was mot filed within one year from that date. ~ - > The Court was at the time of its cons ic fa ation ce Jackson v. Géneral Motors Corporation, strra, ek ie NOW,, sGliy - aware that the decision in Jackson could and very likely would il = , 7 .- cause hardships in certain cases. The decision in Jackson was controlled by the decision in Albert v. Sherman, 167 Tenn. 133 Appendix “This-cése is now in the appellate procedure anc we do not Geem . +e . : ° ° . . ; f Se » peed es an a& Srepet ae same at this time. . ‘ - The judgment is ateisned. 4 coset iets 4 } ™ . | tie ese es oa , 7 7 W. tne | iz ate (Sra justic - } . . ordered and adjudged by this Court that! the judgment ¢ of the Court below be ° which-let execution "issue. 6/7/71. - . / " * : ; ’ ; SUPR Exe COUR T, NASHVILLE _ 3. W. HARGROVE ° Vs. ' ; eee es, e . ee aa Hs harms ii Lew. ¥. Le revso®, d/b/a MATERIALS. Sica : HANDLING SERVICES AND KELLEY.CO., INC: — Affirmed pee . eo * r e ‘ i e. ns e° This cause coming on to be en rd upon, a, transcript of the.record from - - fi — . _ : the Cireuit Court of Davidson _ County, assignments of e ad error, reply bricf and argument of counsel, upon 1 corisidevation whereof the - Court is of opinion ‘that in the. *tiigment of the Court below there is nc 4 reversible error. ° a ae . . : - . ” In accordance with the opinion of the Court filed herein, it is, therefore, affifned and that the demurrers be sustained and: the case dismissed All costs -of the cause will be paid by J. W. Hargrove, for: i a ? om “re Pee ates owls a conibine _e : ri W. HARGROVE, : ) : . aa = : Or Pa Sl ‘ “4 hi Pe tir Gol 3s : Appellant 3 ) Vek ise abe SES oe ) of ; te a Og ee ) Davidson Law _ . - > _ a | ‘ ‘ ): . G a . ve ‘) Honorable Roy A.- Miles, Judge. ; * . ): . ° : : . % : y: ) : ° eA : & W. L. NEWSQME, dba, MATERIALS ) : HANDLING. SERVICES and. KELLEY ) a COMPANY,_ INC., ) } , : ‘) \ Appellees +)? ae : alee . x , » - * OPINION ON PETITION TO REHFAR: 7 The petition to: xehear is denied. ee , | Re ee : : See oa, 8 5 r ~ ‘ ns . fs : . i | hae | “fess W. DYER, / e 8 ie. i“ i ief Justice an vo . 5 5 . \ Chattin,’Creson, j \ z : Humphreys, and Sen tig) Sek | era st . McCanless, JJ. peer 4 : - : concur | ; | ae . | : : — a Sal ° 3 . ; . = Z } r ‘ os ‘ = : is * Appendix «© - .. oi ee ee * y . ° e . . ie | ° x, J. W. HARGRWE = “ ee ee “9 . eres > , . i . Lee __ Davidson Law_ ue os NEWSE, d/b/a MATERIALS ~ | Lae. 8 ' HANDLING SERWICES AND “ : . 3 - XELLEY CO,, INC, oa en Petition to Rehear Denied. : SD This cause coming on further to be heard on a petition to rehear and reply thereto, upon consideration of all of which and eoabe 7 et the Court finding no merit in the petition, it is lemsesce at the cost of petitions. __ 9/7/71. 7 , OFFICE OF THE CLERK FOR THE MIDDLE DIVISION OF THE STATE OF TENNESSEE. eee : I, Ramsey Leathers, Clerk of said Court, do hereby certify | that -the foregoing is a true, perfegt and complete copy of .the order denying petition to rehear of said Court, pronounced at its-___ DECEMBER ae Term, 19 TL, in the case of W.. L, NEWSOME, d/b/a. etc., et al 4. as appears of record now on file in my office. In testimony whereof, T have hereunto set my hand and --affixed the ceal of the Court, at office in the Supreme Court Build- ing at N ashville, on this, the __11TH day of -HOVEMBER __, 19.71 | _, Clerk . By _" ‘_______. Deputy Clerk ~* --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0281%3A1. Public record. Not legal advice.