In May, 1963, Plaintiff John D. Jackson bought an Oldsmobile automobile from Pryor Oldsmobile Company, placing the title thereto in the name of his wife, Lois D. Jackson. In November, 1965, approximately two-and-a-half years later, Mrs. Jackson parked this automobile in her slightly sloping home driveway, and, according to the allegation of the declaration, placed the gear in park position and set the hand-brake. After alighting from the car, and leaving it, according to the allegation of the declaration, the automobile suddenly rolled backwards down the driveway, striking Mrs. Jackson and injuring her.
Mr. and Mrs. Jackson sued Pryor Oldsmobile Company and General Motors Corporation, Oldsmobile Division, for the usual damages, personal injuries, loss of services, consortium, and medical expenses. As summarized in the assignments of error, the action was based on Defendants' common law negligence; breach of warranty; and misrepresentations of fact.
Pryor Oldsmobile Company pleaded to the declaration, but the action against this Defendant need be noticed no further as suit against it was dismissed, and it is not involved in this appeal.
General Motors Corporation, Oldsmobile Division, demurred to the declaration, because it showed on its face that the automobile had been bought on May 16, 1963, but that suit had not been commenced until November 21, 1966.
When the demurrer was heard, the Trial Judge held that the suit was barred by the one year statute of limitations which commenced
The Court is satisfied, after a thorough consideration of the Plaintiffs-in-error's contention, that this case is ruled by Chief Justice Green's holding in Albert v. Sherman, 167 Tenn. 133, 67 S.W.2d 140. In that case it was said:
Chief Justice Green concludes his reasoning on this proposition with this observation:
While this observation was in reference to a malpractice action, it is peculiarly and particularly applicable in this case where after operating an automobile for some two-and-a-half years an action is brought for damages against the manufacturer for a defect alleged to have been present in the automobile during the whole of that time.
The assignments of error are overruled and the judgment of the Trial Court is affirmed.
BURNETT, C.J., and DYER, CHATTIN and CRESON, JJ., concur.
ON PETITION TO REHEAR
Appellants have filed a petition to rehear suggesting the opinion filed by the Court "overlooked the fact that under its holding plaintiff has never at any time had any remedy for the personal injuries that she suffered on November 23, 1965; because the Court has apparently held that plaintiff's cause of action for personal injuries was barred before plaintiff had a cause of action for personal injuries upon which plaintiff could have filed suit."
On this assumption, several specific inquiries are addressed to this Court. We respond by explaining what we thought was evident.
In spite of this, citing Bodne v. Austin, 156 Tenn. 353, 2 S.W.2d 100, 62 A.L.R. 1410, for the proposition that when the damages sought are for injuries to the person, whether the basis of the suit is contract or tort, the suit is barred by the one-year statute of limitations, it was held that the statute commenced to run at the time of the original breach of contract or duty, and that the later injury claimed was simply a consequence of that breach. On this basis, plaintiffs' suit was dismissed.
In the present case, we have a comparable situation. The breach of contract or duty, according to the declaration, occurred on May 16, 1963, when the automobile was bought. The injuries sustained some two-and-a-half years later grew out of this breach of contract or duty, and so were consequential.
Under Bodne, the suit for personal injury had to be commenced within one year even though the cause of action was breach of contract. And under Albert, even though the breach of contract resulted in no injury whatsoever at the time — so that no suit could be brought, there can be no recovery for personal injuries consequential to the basis of the action, the negligent breach of contract or duty.
In must be borne in mind, that the cause of action in this case is not the injury plaintiff allegedy sustained. It is fundamental that the bare fact of an injury does not justify an award against a defendant. The cause of action in this case was an alleged breach of contract and duty in respect to a contract of sale of an automobile. Under the allegations of the declaration, this breach occurred at the time of the sale, so that the cause of action accrued at that time and the statute of limitations began to run on it.
As Chief Justice Grafton Green pointed out in Albert, the alternative to this, that of testing the period of limitation from the time of the occurrence of the personal injury rather than the time of the breach of contract from which the injury is a consequence, would create an intolerable situation. For under that rule there would never be a time that a suit could not be brought.
We recognize that some courts have followed the reasoning contended for by plaintiffs-in-error, but this Court has chosen not to do this. And we point out, that the rule which allows a suit to be brought at any time, has proved so unmanageable, that the Uniform Commercial Code undertakes to deal with the problem. See T.C.A. 47-2-725. Of course, the construction and application of this statute of limitations will be for determination in future litigation in which it is invoked.
Suffice it to say, under the authority of Bodne and Albert, to which we add Hackworth v. Raulston Purina Co., 214 Tenn. 506, 381 S.W.2d 292, (the latter presenting the most eloquent and forceful statement of the purpose of statutes of limitation yet written), the original opinion is reaffirmed and the petition to rehear is denied.
BURNETT, C.J., and DYER, CHATTIN and CRESON, JJ., concur.
ON SECOND PETITION TO REHEAR
A second petition to rehear has been filed, assuming the Court's opinion was written on a misunderstanding of the relationship
The second petition to rehear is disallowed.
BURNETT, C.J., and DYER, CHATTIN, and CRESON, JJ., concur.