Adcox v. Southern Ry. Co.

• Decision Date: 02 December 1944
• Citation: 184 S.W.2d 37,182 Tenn. 6
• Parties: ADCOX v. SOUTHERN RY. CO.
• Court: Tennessee Supreme Court

184 S.W.2d 37

182 Tenn. 6

ADCOX v. SOUTHERN RY. CO.

Supreme Court of Tennessee.

December 2, 1944

Error to Circuit Court, Hamilton County; Fred B. Ballard, Judge.

Action by Rosa Mary Adcox, administratrix of the estate of Charlie Ammons, deceased, against Southern Railway Company for wrongful death of plaintiff's intestate. To review a judgment dismissing the action, plaintiff brings error.

Reversed and remanded.

R. W. Kemmer and L. D. Farrar, both of Chattanooga for plaintiff-plaintiff in error.

Whitaker Hall, Haynes & Allison, of Chattanooga, for defendant-defendant in error.

NEIL Justice.

The plaintiff in error, Rosa Mary Adcox, as administratrix of the estate of Charlie Ammons, brought suit in the Circuit Court of Hamilton County against the defendant Railway Company to recover compensation for the wrongful death of her intestate who was killed by a train of defendant on December 10, 1942. On February 15, 1943, suit was instituted by the plaintiff on the pauper's oath. Thereafter, on March 8, 1943, the case was, upon application of the defendant, transferred to the United States District Court at Chattanooga, Tennessee. When the record was filed in that court the defendant moved the Court for an order requiring the plaintiff to give bond or file a pauper's oath as required by Rule 32 or Rule 61 of the local rules of the Federal Court in force at that time. Rule 32 reads as follows:

'32. Causes Prosecuted or Defended in Forma Pauperis.

'1. Any citizen of the United States desiring to commence and prosecute any suit or action in forma pauperis in accordance with the acts of July 20, 1892 (c.209), and June 25, 1910, shall file in court a statement in writing under oath, showing: (a) the nature of the cause of action, briefly set forth; (b) the citizenship of the parties and other jurisdictional facts; (c) all other persons, if any, beneficially interested in the recovery sought, including any persons for whose use and benefit the cause is to be prosecuted and any counsel who has undertaken to prosecute the same for a contingent fee depending upon the recovery; (d) that he believes he is entitled to the redress sought; and (e) that because of proverty he and all of the persons so beneficially interested in the recovery are unable to pay the costs or to give security therefor. * * *'

The pertinent part of Rule 61 is as follows:

'61. Deposits for Costs. The clerk of the court shall not be required to docket any cause, except where the United States is a party, or where the person requiring services is relieved by law from the prepayment of fees and costs, until a deposit of an amount to be fixed by the clerk, not exceeding twenty-five dollars, shall be made with him by the plaintiff as a payment of the clerk's and marshal's costs which may be incurred by the plaintiff in the progress of the cause. * * *'

The motion was sustained and plaintiff's suit was dismissed. Attorneys for the plaintiff refused to give a bond or file the pauper's oath as required by the foregoing rule of court. It was for this reason that the Court dismissed plaintiff's suit. There is a stipulation in the record that the plaintiff is a poor person within the meaning of our statute. Following the dismissal of plaintiff's case, she re-instituted her suit in the state court against the defendand for $2,999.99. The filing of the present suit was within twelve months after the alleged wrongful death of plaintiff's intestate. The parties to this suit are the same as in the original case that was transferred to the United States District Court. When the plaintiff re-instituted her suit in the state court for an amount within the exclusive jurisdiction of that court, the defendant filed a plea of not guilty and also a special plea of res judicata to the effect that her suit in the Federal Court had been dismissed because of a failure of the plaintiff and her counsel to comply with Rule 32 and Rule 61 'with reference to the pauper's oath and giving bond'. Thereupon the plaintiff's attorney moved to strike the special plea, which motion was overruled. The plaintiff then filed a replication to the special plea, to which defendant demurred. The demurrer was sustained and plaintiff's suit dismissed. An exception was taken and an appeal granted to this Court. The assignments of error are as follows:

(1) The Court erred in sustaining defendant's demurrer to the plaintiff's replication, thereby dismissing the case. (2) The Court erred in holding plaintiff's replication was insufficient as a matter of law to relieve her of the effects of a Federal Court dismissal such as the defendant relied on in its special plea of res judicata. (3) It was error for the trial court to hold plaintiff's replication did not controvert the facts relied on by defendant in its plea of res judicata and in holding plaintiff's replication presented no matters which have not already been disposed of, and accordingly dismissed plaintiff's suit.

When plaintiff's attorneys filed their original brief and 'assignments of error', the foregoing specific assignments did not appear therein. It is insisted by defendant that the appeal should be dismissed for failure of the plaintiff to comply with Rule 14 of this Court requiring appellant to point out clearly and specifically the errors complained of; that the foregoing assignments were filed too late. We think the motion is without merit since the original brief contains a clear statement of the case and leaves the Court in no doubt as to the legal question in dispute. On the original brief of plaintiff's attorneys there appears the following reasonably concise statement of the holding of the trial judge, which is claimed to be error:

'The trial court in the instant case held, under the circumstances, that the dismissal of plaintiff's case in the Federal Court was equivalent to a trial on its merits, and such dismissal was a bar to the prosecution of the present suit. The plaintiff commenced the present suit in the Circuit Court on the oath allowed poor persons. The order in the Federal Court, however, required her to make a bond or again take the pauper's oath, and also required her Attorneys to make a bond or take the pauper's oath and if the plaintiff had again prepared and filed another pauper's oath in the Federal Court it would not have availed her of anything whatsoever, because the suit was ordered to be dismissed unless her Attorneys would make a bond or take the pauper's oath.'

It is the contention of the defendant that the said Federal Rule 41(b), 28 U.S.C.A. following section 723c, provides that the involuntary dismissal of any such cause of action as here involved 'operates as an adjudication upon the merits.' There is a stipulation in the record to the effect that the case was dismissed upon motion of the defendant and without the approval or knowledge of plaintiff's attorneys. The above rule, relied on by defendant, reads as follows:

'(b) Involuntary Dismissal: Effect Thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him. After the plaintiff has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue, operates as an adjudication upon the merits.'

A number of cases are cited by defendant in support of its contention: Dudley v. Community Public Service Co. et al., 5 Cir., 108 F.2d 119; Carnegie Nat. Bank v. City of Wolf Point, 9 Cir., 110 F.2d 569; Blake v. De Vilbiss Co., 6 Cir., 118 F.2d 346; United States ex rel. Randolph v. Ross, District Judge, 298 F. 64, 33 A.L.R. 728; and Marks v. Thos. Cook & Sons, etc., 316 Ill.App. 318, 45 N.E.2d 66.

We have carefully examined each of these decisions and feel that they are not controlling in the instant case. In the Dudley case the question now before us was not presented or considered. It...