Barnes v. Walker

• Decision Date: 09 October 1950
• Parties: , 191 Tenn. 364 BARNES v. WALKER.
• Court: Tennessee Supreme Court

Page 648

234 S.W.2d 648

27 Beeler 364, 191 Tenn. 364

BARNES v. WALKER.

Supreme Court of Tennessee.

Oct. 9, 1950.

Rehearing Denied Dec. 9, 1950.

Barber & LeDuke, Memphis, for plaintiff in error, John B. Barnes.

Burch, Porter & Johnson, Memphis, for defendant in error, O. G. Walker.

TOMLINSON, Justice.

Barnes bought a house trailer from Walker in May of 1948 under a Conditional Sales Contract regulated by Code Section 7286 et seq. After he had paid by December of 1948 to Walker $873.26 on the purchase price, Walker obtained possession of the trailer in a manner said by Barnes to have been illegal, and then sold the trailer, presumably to satisfy the balance of the purchase price, in a manner said by Barnes to have been illegal in that before such sale he did not advertise as required by the Conditional Sales Law, Code Section 7287.

Predicated upon the alleged illegal retaking and sale of the trailer Barnes sued Walker for its conversion, but subsequently was allowed a voluntary non-suit. Code Section 8816. Then he commenced within the time permitted by statute the present suit wherein he seeks a recovery under section 7291 sought because of the alleged failure of Walker to advertise the trailer previous to sale as required by the Conditional Sales Statute, Code Section 7287.

Nothing will be gained by laboring this opinion with a detailed recitation of the contents of the plea in abatement to the declaration; the overruled motion to strike that plea, the replication and the demurrer thereto sustained by the Court. It is sufficient to say that the Court held on pleadings which properly presented the question (1) that the remedy afforded by conversion to Barnes, the conditional vendee, and the remedy furnished him by the conditional sales statute for recovery of the payments which he had made on the purchase price are remedies which are inconsistent and repugnant, thereby requiring an election by Barnes as to which remedy he would pursue, and (2) that Barnes irrevocably made his election in commencing his action for conversion, and is thereby precluded from maintaining this second suit. Accordingly, the Court dismissed the second suit and Barnes by this appeal asserts that the Court erred in its holdings above stated.

The doctrine of election of remedies applies where there are 'two existing alternative remedial rights, inconsistent and not reconcilable with each other,' and an election is made by 'the adoption, by an unequivocal act, of one of' the two existing remedies. Phillips v. Rooker, 134 Tenn. 457, 462, 184 S.W. 12, 13: An unequivocal election of one of two repugnant remedies conclusively estops a subsequent resort to the other remedy. Grizzard v. Fite, 137 Tenn. 103, 108, 191 S.W. 969, L.R.A.1917D, 652.

Assuming, but not deciding, that the two remedies afforded Barnes, the conditional vendee here are repugnant and, therefore, put him to his election between the two repugnant remedies, the question is whether the mere commencement of the action for conversion by Barnes, followed by a voluntary non-suit, amounted to the unequivocal act necessary to an irrevocable election between the two remedies. As stated, the trial court held that it did. Barnes, the conditional vendee, insists that this did not amount to an irrevocable election. His position is that the effect of the judgment of voluntary non-suit merely placed him in the same position he occupied before he commenced the action for conversion. His insistence is sustained by the decisions of many eminent courts of last resort. There are, likewise, such courts which hold to the contrary. Refer to cases annotated in 26 ALR commencing at page 111, and to the text of 18 American Jurisprudence, pp. 141-143 and cases there cited.

When the trial court in the case at bar concluded that the two remedies were repugnant and then held that the commencement of the action for conversion upon the part of Barnes amounted, notwithstanding the subsequent voluntary non-suit, to an irrevocable election which precluded this subsequent suit to recover purchase money already paid, that court was only following, as it should have done, the decision of this court in Grizzard v. Fite, supra.

However, it is the opinion of the present personnel of this court that this decision of Grizzard v. Fite, supra., is inconsistent with one of the purposes for which courts are created, to-wit, a redress of wrongs found to have been committed. The ultimate question, therefore, is whether this court should follow Grizzard v. Fite because of the rule of stare decisis.

For obvious reasons the rule of stare decisis is one of paramount importance. Therefore, the power of this court to overrule a former decision should be sparingly exercised and only when the reason is compelling. J. T. Fargason Co. v. Ball, 128 Tenn. 137, 141-142, 159 S.W. 221, 50 L.R.A., N.S., 51; Hall v. Skidmore, 180 Tenn. 23, 29, 171 S.W.2d 274. The rule is even more rigidly followed with reference to decisions construing constitutional provisions and legislative enactments, Humphries v. Manhattan Savings Bank & Trust Co., 174 Tenn. 17, 25, 122 S.W.2d 446; and when that decision has established a rule of property, Wilkins v. Chicago, St. L. & N. O. R. Co., 110 Tenn. 422, 458, 75 S.W. 1026.

Where a former decision neither involves the construction of statutes and constitutional provisions, nor announces that which has become a rule of property, but does involve the private rights of litigants whose conduct has not been prejudiced by the former decision, and when a litigant has not acted upon such former decision to his prejudice with relation to the establishing or fixing of a private property right, courts of last resort 'should feel at liberty to settle principles of law according to the opinion of then existing members, neither regardless of, nor implicitly bound by, prior decisions'. Wilkins v. Chicago, St. L. & N. O. R. Co., supra, 110 Tenn. at page 460, 75 S.W. at page 1035, quoting dictum. When such is the situation, it seems to be 'the manifest policy of our courts to hold the doctrine of stare decisis subordinate to' what is subsequently considered 'legal reason and justice, and to depart' from such former decisions when such departure is necessary to the achievement of what it subsequently considers manifest justice. State v. Matthews, 143 Tenn. 463, 475, 226 S.W. 203, 207, 13 A.L.R. 314, provided the court can see that more good than evil would result from the overruling of the previous decision which is now considered erroneous. Steedman, Steere & Co. v. Dobbins & Dazey, 93 Tenn. 397, 406, 24 S.W. 1133.

Grizzard v. Fite, supra, does not involve the construction of a constitutional provisions or of a statute, nor will an overruling of that case disturb a rule of property. It involves only the effect of certain practice in our courts. In the text of 14 American Jurisprudence, p. 344, sec. 127, it is said with citation to decisions that where a previous decision dealing only with a question of practice 'goes to the merit of the controversy, where the whole right of parties is dependent upon, and is governed by, it, if the court from any cause errs, it is not only a proper, but an obligatory, duty upon them (it), a duty imperiously demanded by litigants whose rights are before them (it) for...