General Acc. Fire & Life Assur. Corp. v. Kirkland

• Decision Date: 04 April 1962
• Citation: 356 S.W.2d 283,210 Tenn. 39,14 McCanless 39
• Parties: , 210 Tenn. 39 GENERAL ACCIDENT FIRE AND LIFE ASSURANCE CORPORATION, Ltd. v. Benjamin F. KIRKLAND.
• Court: Tennessee Supreme Court

Page 283

356 S.W.2d 283

14 McCanless 39, 210 Tenn. 39

GENERAL ACCIDENT FIRE AND LIFE ASSURANCE CORPORATION, Ltd. v. Benjamin F. KIRKLAND.

Supreme Court of Tennessee.

April 4, 1962.

Cheek, Taylor & Groover, Calvin N. Taylor, Knoxville, for petitioner.

Wilbur W. Piper, Knoxville, for respondent.

WHITE, Justice.

This is a Workmen's Compensation case commenced originally in the Circuit Court at Knoxville against H. K. Ferguson Company of Anderson County, as the employer, and Potomac Insurance Company, the supposed insurance carrier. When it developed from the pleadings that the Potomac Insurance Company was not the insurance carrier, then the correct insurance carrier, General Accident Fire and Life Assurance Corporation was substituted as the defendant and service of process was attempted to be had on said Company through the insurance commissioner of the State of Tennessee, said Company having no office or place of business in Knox County.

Both defendants filed pleas in abatement stating they were non-residents of the State of Tennessee and had no office or place of business in Knox County and, therefore, the Circuit Court of Knox County had no jurisdiction of either the employer or the insurance carrier. Thereupon, the plaintiff took a voluntary nonsuit as to the employer, H. K. Ferguson Company, and the Court overruled the plea in abatement filed by the Insurance Company. The case was then heard on its merits and a judgment was entered for the petitioner. Upon appeal the Court in an opinion written by Mr. Justice Swepston reversed the action of the Trial Court in overruling the plea in abatement of said Insurance Company and dismissed the suit. 207 Tenn. 72, 338 S.W.2d 549. This opinion was announced by the Court on September 9, 1960.

On November 17, 1960, the petitioner commenced a new action against said General Accident Fire and Life Assurance Corporation, Ltd., and his employer, H. K. Ferguson Company, in the Circuit Court for Anderson County, Tennessee, claiming to be entitled to the same benefits for the same reasons as set out in his petition filed in Knox County. To this second petition the defendant filed pleas in abatement contending that the action could not be maintained as to H. K. Ferguson Company because more than one year had elapsed since the entry of the voluntary nonsuit in February, 1959. The Trial Court sustained the plea as to the defendant, employer, and no appeal was taken from such action.

The Insurance Carrier contended that the plea should be sustained because it was an ancillary defendant in the suit in Knox County and since the case had been dismissed as to the primary defendant, the employer, and was not renewed within one year that the action against the defendant, Insurance Carrier, could not be maintained.

It was the further plea of the defendant that the action against it was not commenced within the time permitted under Section 50-1003 T.C.A., which provides 'the right to compensation * * * shall be forever barred, unless within one (1) year after the accident resulting in injury or death * * * a claim for compensation under the provisions of this law is filed with the tribunal having jurisdiction to hear and determine the matter; * * *.'

It is contended by the defendant, appellant herein, that Section 28-106 T.C.A. does not save to the petitioner, appellee, the right to maintain this action. Section 28-106 provides:

'If the action is commenced within the time limited by a rule or statute of limitation, 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 (1) year after the reversal or arrest.'

This is a remedial statute having general application. Gilreath Caruthers History of a Lawsuit, Section 52, page 59, states 'The statute is remedial and should be liberally construed in furtherance of its purpose. But, for the statute to apply, the parties, purpose and subject- matter must be the same in both cases and the judgment or decree must have been rendered against the plaintiff on some ground not concluding his cause of action, such as the plaintiff taking a nonsuit; or if the judgment or decree was in plaintiff's favor it must have been arrested or reversed on appeal.' Nashville, Chattanooga and St. Louis Ry. Co. v. Bolton, 134 Tenn. 447, 184 S.W. 9.

In the case of Burns v. Peoples Tel. & Tel. Co., 161 Tenn. 382, 33 S.W.2d 76, the late Mr. Chief Justice Green in speaking for the Court said:

'Where an action not already barred by the statute of limitations is commenced in the wrong court and dismissed for lack of jurisdiction, such action is sufficient to suspend the statute of limitations and to permit a new suit to be commenced within a year after such dismissal under a statute providing that if an action is commenced within the time limited and judgment is rendered against the plaintiff upon any ground not concluding his right of action, he may commence a new action within one year.'

Within recent years our Court, as well as the Courts of last resort of other States, has paid more attention to the basic and intrinsic rights of the parties than it has to form, doing justice between the parties in administering the spirit of the law instead of the cold letter of the law. The letter of Section 28-106 T.C.A., as well as the spirit which prompted its enactment, shows that its basic purpose was to aid the Courts in administering the law fairly between litigants without binding them to minor and technical mistakes made by their counsel in interpreting the complexities of our laws of procedure. In the case of Rye v. DuPont Rayon Company, 163 Tenn. 95, 96, 40 S.W.2d 1041, Mr. Justice Cook speaking for the Court said:

'The statute of limitations incorporated in the Compensation Act affects the remedy and is not a statute of proscription.

'An action under the Compensation Act to recover compensation for the death of an employe may be renewed within one year after the dismissal for failure to prosecute of a similar action previously brought, the statute authorizing a new action within one year after the conclusion of a former action which was not decided upon grounds concluding the right of action having application.'

We know of no sound, legal or equitable reason for not applying the rule set out in Section 28-106 T.C.A. to the case at bar.

The case of Burns v. Peoples Tel. & Tel. Co., supra, is a complete answer to the contention of the appellant that its plea in abatement should be sustained. Therefore, Assignment of Error No. 4 is overruled.

All of the other Assignments of Error are directed in the main toward the introduction of evidence and consideration of the Court thereof, and final decision of the Court in connection therewith. Therefore, a statement of the facts is now in order.

The petition filed on behalf of Kirkland sets out that he is a resident citizen of Knox County, Tennessee, and under Section 1 of his petition he states that he filed a petition against the defendant, General Accident Fire and Life Assurance Corporation, Ltd., in the Circuit Court of Knox County, Tennessee, on November 24, 1958; that a plea in abatement to said suit was filed by said defendant and overruled by the Trial Court; that upon the trial of the case on the merits a judgment was rendered in his favor, awarding to him benefits for permanent total disability and medical bills in the amount of $345.98; that upon appeal his petition was dismissed and the plea in abatement filed by the defendant was sustained.

Under Section 2 of the petition, the petitioner alleged that the defendant issued an insurance policy insuring the liability of his employer, H. K. Ferguson Company, under the terms and conditions of the Workmen's Compensation Law of Tennessee.

Under Sections 3 and 4 it was alleged that the petitioner was in the regular employ of H. K. Ferguson Company as a mechanic and earned an average weekly wage of approximately $126.00. That on or about the 26th day of March, 1958, while petitioner was engaged in his said employment, he was injured as the result of an accident which arose out of and in the course of his employment, in that, while petitioner was in the act of repairing a truck owned by the Atomic Energy Commission, which was being used by said employer, he was using a heating torch in the process of straightening the body of the truck. Petitioner was standing in the bed of the truck and when he started to alight from the truck, he lost his footing and fell to the concrete floor a distance of approximately five feet striking his head with great force and violence against the concrete suffering severe injuries to his skull, head and brain causing him to be confined in a hospital for a period of twenty-five days and to incur medical expenses in the...