Denson v. Webb

• Decision Date: 12 October 1938
• Parties: DENSON v. WEBB et al.
• Court: Tennessee Court of Appeals

136 S.W.2d 59

23 Tenn.App. 599

DENSON v. WEBB et al.

Court of Appeals of Tennessee, Western Section.

October 12, 1938

Certiorari Denied by Supreme Court. April 1, 1939.

Appeal in Error from Circuit Court, Shelby County, Division I; Harry Adams, Judge.

Action to recover for injuries allegedly resulting from hair dye by Mrs. Ethel Denson against Mrs. Gwin Webb and Sales Affiliates, Inc. From a judgment sustaining the plea in abatement filed by the defendant Sales Affiliates, Inc. plaintiff appeals. Defendant filed a motion to dismiss the appeal, and plaintiff petitioned for writ of error after plaintiff had taken a voluntary nonsuit against Mrs. Gwin Webb.

Motion to dismiss appeal granted. Petition for writ of error granted, and judgment affirmed.

Joseph H. Norville and Wallace Lopez, both of Memphis, for plaintiff in error.

McDonald McDonald & Brown, of Memphis, for defendants in error.

SENTER Judge.

Plaintiff in error, Mrs. Ethel Denson, sued the defendant, Mrs. Gwin Webb, and the defendant, Sales Affiliates, Inc., for damages alleged to have resulted to plaintiff from the use of a hair dye known as "Inecto."

The declaration avers that as a customer of Webb's Beauty Shop owned and operated by the defendant, Mrs. Gwin Webb plaintiff had her hair dyed, and that said defendant used the preparation "Inecto", manufactured and sold by the defendant, Sales Affiliates, Inc.; that said preparation, "Inecto," is dangerous, harmful, and deleterious; and that the same was negligently manufactured and placed upon the market by the defendant, Sales Affiliates, Inc., and negligently used by the defendant, Mrs. Gwin Webb, in her beauty shop in Memphis, Tennessee.

The declaration further avers that the defendant, Mrs. Gwin Webb, was a resident of the City of Memphis, Tennessee, and avers that the defendant, Sales Affiliates, Inc., is a non-resident of the State of Tennessee, but avers that said defendant, Sales Affiliates, Inc., had designated a representative in City of Memphis. Service of process was directed by plaintiff in the summons to be served upon the U.S. Fidelity & Guaranty Company as the agent and representative of this defendant in this suit. Service of process was had upon the defendant, Mrs. Gwin Webb, in the City of Memphis, and process was served on an agent of the U.S. Fidelity & Guaranty Company located in the City of Memphis.

The defendant, Sales Affiliates, Inc., filed a plea in abatement, and entered its appearance only for the purpose of filing a plea in abatement to the suit against it. The plea in abatement averred that it was a non-resident corporation, and was not engaged in the transaction of any business in the State of Tennessee at the time the summons was issued, and had never been engaged in any business and had never conducted any business in the City of Memphis and did not have any agent in Shelby County, Tennessee, or elsewhere in Tennessee authorized to accept service of process, and that no authorized agent of said defendant was a resident of Shelby County, Tennessee. The plea in abatement then set forth, in substance, that the Sales Affiliates, Inc., had not designated the U.S. Fidelity & Guaranty Company as a process agent for the Sales Affiliates, Inc., that the U.S. Fidelity & Guaranty Company is not the attorney in fact of the Sales Affiliates, Inc., and that there is no connection existing between the Sales Affiliates, Inc., and the U.S. Fidelity & Guaranty Company which would bring the Sales Affiliates, Inc., into the jurisdiction of the courts of Tennessee; that said two corporations are distinct corporations engaged in entirely different lines of business, and that the Sales Affiliates, Inc., had not authorized said U.S. Fidelity & Guaranty Company to accept process for it; and that the service of process in this cause is void and of no effect, and asked that the same be quashed and for nothing held.

The defendant, Mrs. Gwin Webb, filed a plea of the general issue of not guilty. Plaintiff below filed a replication to the plea in abatement and the issues thus created were tried to the Circuit Judge, resulting in the plea in abatement being sustained by the court.

A motion for a new trial by plaintiff below was overruled, and from the action of the court in overruling her motion for a new trial and in dismissing the suit as to the defendant, Sales Affiliates, Inc., plaintiff prayed and was granted an appeal in error to this court.

It appears that the suit was instituted October 13, 1936, in the Circuit Court of Shelby County, Tennessee. On October 19, 1936, the defendant, Mrs. Gwin Webb, filed her plea of not guilty to the declaration. On November 12, 1936, the defendant, Sales Affiliates, Inc., filed a plea in abatement as above set forth. The plea in abatement was sustained by the court on March 26, 1938. Plaintiff in error filed a motion for a new trial to the action of the court on the plea in abatement on March 30, 1938. The motion for a new trial was overruled on April 5, 1938, and plaintiff in error appealed from the action of the court in overruling the motion for a new trial and in sustaining the plea in abatement on April 5, 1938.

It is further shown by the record that on April 5, 1938, plaintiff tendered the bill of exceptions which was approved by the court and that the appeal was perfected on April 8, 1938, by the filing of a pauper's oath as directed by the court. It further appears that after the appeal had been duly perfected as above stated on April 8, 1938, that on April 11, 1938, plaintiff below was permitted by the court to take a voluntary nonsuit as to the defendant, Mrs. Gwin Webb.

The record in the cause was duly filed in this court, and errors assigned. Whereupon, the defendant, Sales Affiliates, Inc., filed its motion in this court to dismiss the appeal of plaintiff in error, on the ground that the appeal was premature and was not an appeal from a final judgment in the cause, entitling plaintiff to appeal at this stage of the proceedings. Upon the filing of this motion to dismiss the appeal because prematurely granted, plaintiff below presented a petition for a writ of error, setting forth the fact of the voluntary non-suit having been taken as to the defendant, Mrs. Gwin Webb. This petition for a writ of error is resisted by appellee, Sales Affiliates, Inc. It being the contention of said appellee that the cause was still pending in the lower court as to the defendant, Mrs. Gwin Webb, and that an appeal had been prayed, granted and perfected to this court before there was an attempted non-suit as to said defendant, Mrs. Gwin Webb; that having perfected her appeal to this court, she was not entitled to both remedies, an appeal in error and a writ of error.

We are of the opinion that the appeal was prematurely prayed and granted and perfected, under the authority of two recent cases, Gavin v. Shelby County et al., 172 Tenn. 696, 113 S.W.2d 1195, and the case of Bruce v. Anz et al., decided by the Supreme Court April 2, 1938, and reported in 173 Tenn. 50, 114 S.W.2d 789.

In the Gavin case, under the first headnote, it is said: "In action against two codefendants, a judgment which dismissed suit as to one defendant, but did not dispose of case as to other defendant, was 'interlocutory' as to latter defendant, so that plaintiff's appeal therefrom required dismissal, since judgment did not dispose of all the facts of the case as regarded plaintiff."

In that case plaintiff sued to recover damages as a result of taking property for internal improvements. The suit was against Shelby County and the Department of Highways and Public Works of Tennessee. The trial judge sustained the motion of the Department of Highways and Public Works to dismiss the suit as to it but did not dispose of the case as to Shelby County. The court permitted the plaintiff to appeal to the Supreme Court. The Department of Highways and Public Works filed a motion to dismiss the appeal, because the judgment of the trial judge was interlocutory and from which no appeal would lie. The Supreme Court in an opinion by Mr. Justice McKinney sustained the motion to dismiss the appeal, stating: "The judgment herein is not final as to the plaintiff in error, but only with respect to one of the defendants in error. It may never become necessary to consider the liability of the Department of Highways and Public Works, because, should the trial court adjudge liability against the county and it should not appeal, then it would not be necessary to adjudicate as to the liability of the state. An appeal lies from a judgment which is final as to appellant."

The court in the opinion also quoted with approval from the case of Younger, Adm'r v. Younger, 90 Tenn. 25, 16 S.W. 78, wherein it is said: "An appeal, as a matter of right, lies only from a final decree or judgment, and the final decree or judgment is one which decides and disposes of the whole merits of the case."

In the still more recent case of Bruce v. Anz, supra, the same question was before the court. That was an action to recover for personal injuries sustained in an automobile accident, and was against A. T. Anz and one Bible, the engineer in charge of the construction work and the defendant casualty company as surety bondsmen for the contractor, Bible. The trial judge sustained the demurrers of all the defendants except Anz and granted an appeal from his order dismissing as to them. The action was still pending in the trial court against Anz on his plea of not guilty. In that case the court said: "A motion to dismiss the appeal must be sustained on the authority of Gavin v. Shelby County et al., 172 Tenn. [696], 113 S.W.2d 1195."

It was further stated by the court: "In the instant case it is clear that the judgment plaintiff...