Dowlen v. Fitch

• Decision Date: 11 February 1954
• Citation: 32 Beeler 206,196 Tenn. 206,264 S.W.2d 824,41 A.L.R.2d 791
• Parties: DOWLEN v. FITCH et al. 32 Beeler 206, 196 Tenn. 206, 264 S.W.2d 824, 41 A.L.R.2d 791
• Court: Tennessee Supreme Court

Page 824

264 S.W.2d 824

DOWLEN v. FITCH et al.

32 Beeler 206, 196 Tenn. 206, 264 S.W.2d 824, 41 A.L.R.2d 791

Supreme Court of Tennessee.

Feb. 11, 1954.

Rehearing Denied April 20, 1954.

For Opinion on Rehearing See 266 S.W.2d

357.

B. J. Boyd, Ashland City, for plaintiff in error.

H. Francis Stewart and Watkins & McGugin, Nashville, for defendants in error.

WELDON B. WHITE, Special Justice.

The plaintiff in error, Theodore Dowlen, brought an action in damages founded in tort against the defendants in error, Barbara Jeanne Fitch and C. A. Fitch, in the Circuit Court sitting in Cheatham County, Tennessee.

Dowlen was injured while riding in a truck when it collided with a Studebaker automobile owned by the defendant, C. A. Fitch, and driven at the time by his daughter Barbara Jeanne Fitch, which collision occurred May 19, 1952 in Cheatham County, Tennessee.

The plaintiff in error is a resident of Cheatham County, Tennessee, and the defendants in error are residents of Hamilton County, Tennessee.

A summons in this case was issued by the Clerk of the Circuit Court for Cheatham County, Tennessee, on April 21, 1953, and was directed to the Sheriff of Hamilton County, Tennessee, who served it, through his deputy, on the defendants in error on May 4, 1953. On May 18, 1953 the plaintiff in error filed his declaration, and on May 23, 1953 the defendants in error filed their plea in abatement 'for the sole purpose of challenging the process in the case'. In this plea in abatement they set out that they were not and had never been residents of Cheatham County, Tennessee, and that at the time of the service of process on them they were residents of Hamilton County, and that the action was transitory and followed the defendants.

The plaintiff in error filed his replication in which he admitted all of the facts alleged in the plea in abatement. He contended, however, that under Chapter 34 of the Public Acts of 1953 he had the right to commence and maintain his action in Cheatham County against these defendants in error. He admits that Chapter 34 was passed on March 10, 1953 and approved by the Governor on March 23, 1953. The plaintiff in error contends in his replication that said Chapter 34 relates to the remedy only and does not affect any substantive rights of the defendants, the act only enlarging or increasing the plaintiff's in error choice as to venue.

The trial judge filed a most learned and exhaustive opinion evidencing that he had seriously considered the question raised and concluded that the plea in abatement should be sustained. An order was entered sustaining said plea in abatement, and it is from this holding of the Court that the plaintiff in error has appealed.

Sections 1 and 6 of Chapter 34 of the Public Acts of 1953 provide as follows:

'That in all tort actions, including actions for death by wrongful act, where the plaintiff and defendant, including personal representatives, are both residents of this state but reside in different counties in addition to the venue already available at law, the action may be brought in the county in which the cause of action arose, and process may be sent to another county as in local actions.'

'That this Act take effect from and after its passage, the public welfare requiring it.'

It will be observed that the substantive right of the plaintiff in error to bring this action accrued on the 19 day of May 1952. About ten months later, that is on March 10, 1953, the plaintiff in error filed his action to set in operation the procedural machinery to enforce this substantive right. The plaintiff in error therefore sought to harvest the fruit of Section 1 of Chapter 34 of the Public Acts of 1953 aforesaid by commencing his action in the county where the cause of action arose.

It is contended by the defendants in error that since the act itself does not purposely show an intention of the Legislature to make it applicable to existing substantive rights that the plaintiff in error cannot avail himself of the benefits of said act. The splendid brief filed on behalf of the defendants in error states: 'Generally speaking, an act or statute cannot have a retrospective operation, and it is a rule of statutory construction that all statutes are to be construed as having only a prospective operation, unless the purpose and intention of the Legislature to give them a retrospective effect is expressly declared or necessarily implied from the language used; and doubt must be resolved against the retrospective effect.'

Many Tennessee cases are cited in support of this statement. Support for this general statement is also found in 36 Cyc. 1204, 1205. Lewis' Sutherland on Statutory Construction, at Section 642, is to the same effect.

We reaffirm the rule of statutory construction to be as stated by Mr. Justice Green in the case of Jackson v. Loyal, Additional Ben. Ass'n, 140 Tenn. 495, 503, 205 S.W. 318 as follows: 'An act of the Legislature is construed so as to give it prospective and not retroactive force unless the latter purpose is plainly expressed or necessarily implied.'

By Section 1 of Chapter 34 aforesaid, the Legislature enlarged or increased the remedy accorded to plaintiffs in tort actions by providing: '* * * in addition to the venue already available at law, the action may be brought in the county in which the cause of action arose, and process may be sent to another county as in local actions.' Therefore, under the present law such tort actions may be brought in the county where the cause of action arose or the plaintiff may sue the defendant where he is found.

The cases which hold that a person has no vested right in any particular remedy are abundant. In Section 357 under the general subject of constitutional law found in 11 American Jurisprudence, at page 1185, it is provided:

'A person has no vested right in any particular remedy and cannot insist on the application to the trial of his case whether civil or criminal of any other than the existing rules of procedure. Statutes making changes in the remedy or procedure are always within the discretion of the law-making power and are valid so long as they do not deprive the accused of any substantive right * * *. A state may abolish an old remedy and substitute new or may abolish without substitution if a reasonable remedy remains, but it cannot deny a remedy entirely'.

Under the general classification of statutes, found in 50 American Jurisprudence at Section 482, it is provided:

'* * * remedial statutes, or statutes relating to remedies or modes of procedure, which do not create new or take away vested rights, but only operate in furtherance of the remedy or confirmation of rights already existing, do not come within the legal conception of a retrospective law, or the general rule against the retrospective operation of statutes. To the contrary statutes or amendments pertaining to procedure are generally held to operate retrospectively, where the statute or amendment does not contain language clearly showing a contrary intention. Indeed, in the absence of any savings clause, a new law changing a rule of practice is generally regarded as applicable to all cases then pending. A fortiori, a statute or amendment which furnishes a new remedy, but does not impair or affect any contractual obligations or disturb any vested rights, is applicable to proceedings begun after its passage, though relating to acts done previously thereto. Sometimes, the rule is stated in the form that, when a new statute deals with procedure only, prima facie, it applies to all actions--those which have accrued or are pending and future actions.'

The passage of a legislative act having retroactive operation so as to impair the obligation of a contract or disturb vested rights where there is no clear or implied right to do so is an entirely different matter.

The question in this case is whether or not...