Davis v. Parks

• Decision Date: 29 November 1924
• Citation: 270 S.W. 444
• Parties: DAVIS, Agent, v. PARKS.
• Court: Tennessee Supreme Court

Page 444

270 S.W. 444

DAVIS, Agent, v. PARKS.

Supreme Court of Tennessee.

November 29, 1924.

Certiorari to Court of Civil Appeals.

Suit by Georgia Taylor Parks against James C. Davis, Agent, etc. Judgment of dismissal was reversed, and the case was remanded by the Court of Civil Appeals, and defendant brings certiorari. Affirmed.

W. H. Watkins and Joe V. Williams, both of Chattanooga, and W. L. Granbery, of Nashville, for plaintiff.

Floyd Estill, of Chattanooga, for defendant.

THOMAS H. MALONE, Special Judge.

This matter comes before the court for the second time under the following circumstances:

The plaintiff below, Georgia Taylor Parks, lived in Roane county, Tenn., and, claiming to have been injured by the default of an agent of the Director General of Railroads, occurring in Franklin county, Tenn., instituted suit against the Director General in the circuit court of Hamilton county, Tenn., to recover damages for the injuries claimed.

This suit was instituted on April 4, 1919. The Director General filed first a motion denying the jurisdiction of the court, and, after that was overruled, filed a plea in abatement, asserting that the language of section 10 of the Control Act (U. S. Comp. St. Ann. Supp. 1919, § 3115¾j) as modified by General Orders Nos. 18 and 18A, confined the jurisdiction of such actions to the county in which the plaintiff resided, or in which the injury arises; and that, since the declaration on its face disclosed the fact that the plaintiff resided in Roane county, Tenn., and had received her injuries in Franklin county, Tenn., the circuit court of Hamilton county had no jurisdiction of the case. This contention on petition to rehear was finally sustained by the Court of Civil Appeals on October 29, 1921, and certiorari denied by this court on January 14, 1922.

It may be noted that the Court of Civil Appeals, in its opinion in the original case, treated the question as one of venue rather than of jurisdiction. Thus it was said:

"We find no authority for prosecuting suits against carriers while under federal control elsewhere than as provided in General Orders No. 18 and No. 18A. Certainly, when plaintiffs are claiming the right to prosecute suits in a venue other than that required in the orders above quoted, the burden should be upon them to show that they do not fall within the requirements of said orders, and also to show why they have the right to prosecute suits in a venue other than that provided by said orders. Plaintiffs have not done so."

Thereafter, on February 24, 1922, the present suit was instituted against the defendant, James C. Davis, Agent, as provided in section 206 of the Act of Congress approved February 28, 1920 (U. S. Comp. St. Ann. Supp. 1923, § 10071¼cc). This suit was also brought in the circuit court of Hamilton county, Tenn., and plaintiff claimed damages in the sum of $2,900.

To the declaration filed by plaintiff, the defendant, James C. Davis, as Agent, interposed a plea of the Tennessee statute of limitations of one year, being section 4469 of Shannon's Compilation of Tennessee Statutes, which reads as follows:

"Sec. 4469 (2772) 3469. One year for libel, personal injuries, etc. — Actions for libel, for injuries to the person, false imprisonment, malicious prosecution, criminal conversation, seduction, breach of marriage promise, and statute penalties, within one year after cause of action accrued. (1715, ch. 27, sec. 5.)"

The plea in question was very elaborate. It stated at the outset that the defendant appeared alone for the purpose of challenging the jurisdiction of the court. But it then proceeded to set out the substance of the proceedings had in the former suit, the provisions of section 10 of the Federal Control Act, the substance of General Orders Nos. 50, 18, and 18A, the provisions of section 206A of the Transportation Act of 1920 (Comp. St. Ann. Supp. 1923, § 10071¼cc), and exhibited with said plea the judgment of the Court of Civil Appeals the opinion of said court dismissing the former suit and the judgment of this court denying the petition for certiorari.

The plea then sets out the one-year statute of limitations, above quoted, and ends with the following language:

"Wherefore the defendant, James C. Davis, as Agent, pleads that this court is now without jurisdiction of the instant case, and same should be dismissed and abated because —

"(1) The plaintiff's action, if any, accrued more than one year before this suit was brought.

"(2) The bringing and maintaining of the suit aforesaid in this court did not save the bar of the statute of limitations because, as held by the appellate court of Tennessee, this court was without jurisdiction of the plaintiff's said action.

"And the defendant prays the judgment of the court on these pleas as to whether it should answer or make further defense herein."

It is obvious that this is not a plea in abatement, but a plea in bar, of the statute of limitations, and it is so described in the additional brief of learned counsel filed in this case.

To this plea the plaintiff demurred on the following grounds:

"I. The plea shows on its face that the plaintiff instituted a suit in the circuit court of Hamilton county to recover damages upon the same cause of action upon which the present suit is based within one year from the commission of the wrongs and injuries therein and herein complained of, and that plaintiff's said suit was dismissed by the Court of Civil Appeals and its judgment affirmed by the Supreme Court upon the sole ground that the venue was laid in the wrong county, as shown by the judgments of the Court of Civil Appeals and of the Supreme Court, and the opinion of the Court of Civil Appeals, certified copies of which are exhibited with the plea; and that said cause was not disposed of on its merits.

"II. The plea and the judgments of the Court of Civil Appeals and of the Supreme Court and the opinion of the Court of Civil Appeals exhibited with the plea show on their face that the Director General of Railroads challenged the court's jurisdiction of his person by motion to dismiss and by plea in abatement, on the sole ground that the venue was laid in the wrong county, which was a personal privilege that the Director General exercised, and that he did not and could not challenge the court's jurisdiction of the subject-matter.

"III. The plea and its exhibits show on their face that the judgment rendered in plaintiff's favor by the circuit court of Hamilton county was reversed on appeal in the nature of a writ of error by said appellate courts upon a ground not concluding plaintiff's right of action, and that the present suit was instituted within one year next after said reversal; wherefore demurrant invokes section 4446 of Shannon's Annotated Code of Tennessee, and prays the judgment of the court that said plea be stricken from the files and for nothing held."

The trial judge overruled the demurrer; being of opinion that the special plea stated a valid legal defense, "and that the statute of limitation of one year bars the plaintiff's cause of action."

Plaintiff declined to file a replication, or to take issue on said plea, and it was accordingly ordered that said plea be sustained and that plaintiff's suit be dismissed.

The Court of Civil Appeals, in a full and carefully considered opinion, reversed this judgment, and remanded the case to the circuit court of Hamilton county for a trial on its merits.

To review this judgment of the Court of Civil Appeals, James C. Davis, Agent, files his petition for certiorari, which writ has heretofore been seasonably granted.

The determinative, and in fact the sole, question presented is whether this case falls within the provisions of section 4446 of Shannon's Compilation, which reads as follows:

"Sec. 4446 (2755) 3449. New action within one year after arrest or reversal. — If the action is commenced within the time limited, but the judgment or decree is rendered against the plaintiff upon any ground not concluding his right of action, or where the judgment or decree is rendered in favor of the plaintiff, and is arrested, or reversed on appeal, the plaintiff, or his representatives and privies, as the case may be, may, from time to time, commence a new action within one year after the reversal or arrest. (1819, ch. 28, sec. 3.)"

The Court of Civil Appeals held in this case, as indicated in its former opinion, that General Orders Nos. 18 and 18A simply related to venue, and did not concern jurisdiction of the subject-matter. It was therefore of the opinion that the former hearing and judgment was not a judgment which concluded the plaintiff's right of action. As stated in its opinion:

"The dismissal of the suit on defendant's plea in abatement that it was brought in the wrong county was not an adjudication of the merits of the controversy, and hence the plaintiff's right of action was not concluded."

This holding is strongly assailed by learned counsel for the petitioner, who insist that the circuit court of Hamilton county was wholly without jurisdiction of the subject-matter; that any judgment which it might have pronounced on the merits of the case would have been absolutely void; and that, in view of the construction given to said statute (Shannon's Code, § 4446) by this court, in such cases, the right of action is not preserved.

1. In making their argument, counsel for petitioner, while claiming that the decision of the Court of Civil Appeals deprives petitioner of due process of law and other rights guaranteed by the federal Constitution, seem to have overlooked the fact that the Supreme Court of the United States has also construed this statute adversely to the contention here advanced.

This was in the case of Smith v. McNeal (1883) 109 U. S. 426, 3 S. Ct. 319, 27 L. Ed. 986. In that case the trial court sustained the demurrer, and dismissed plaintiff's suit, on the ground that it had "no jurisdiction of the cause...