Hooper v. Atlanta, K. & N. Ry. Co.

• Decision Date: 02 November 1901
• Citation: 65 S.W. 405,107 Tenn. 712
• Parties: HOOPER v. ATLANTA, K. & N. RY. CO.
• Court: Tennessee Supreme Court

65 S.W. 405

107 Tenn. 712

HOOPER v. ATLANTA, K. & N. RY. CO.

Supreme Court of Tennessee.

November 2, 1901

Appeal from circuit court, Knox county; Joseph W. Sneed, Judge.

Action by S. M. Hooper, administrator, against the Atlanta Knoxville & Northern Railway Company. Judgment for defendant and plaintiff appeals. Reversed.

Pickle & Turner, W. E. Drummond, and Mynatt & Fowler, for appellant.

Smith Hammond and Smith, Wright & Frantz, for appellee.

McALISTER J.

This is a suit to recover damages for personal injuries. Plaintiff's intestate, J. W. Lebow, on January 15, 1897 was run over and killed by one of defendant's trains. The suit of the administrator was originally brought July 8, 1897, in the circuit court of Knox county to recover $20,000 damages. The declaration was filed November 15, 1897, alleging that complainant, as administrator, brought the suit for the benefit of Mariah Lebow, the mother of deceased, as his next of kin and distributee. Thereupon the defendant company on the same day removed the cause on the ground of nonresidence to the circuit court of the United States at Knoxville, and February 26, 1898, pleaded to the declaration not guilty. On the 24th of March, 1898, the plaintiff was permitted by the court to amend his declaration so as to strike out the name of Mariah Lebow, the mother, and insert that of James Madison Lebow, the father, of the deceased, as his next of kin and sole distributee. The defendant company then interposed a plea of the statute of limitations of one year to the amended declaration, which plea was, on motion of plaintiff, stricken out by the court, upon the ground that the amendment related back to the commencement of the action. The cause was then tried before the court and a jury, resulting in a verdict and judgment for the plaintiff. The cause was then removed by writ of error to the United States circuit court of appeals at Cincinnati, and on May 1, 1899, that court reversed the judgment of the United States circuit court, and remanded the cause to the court "whence it come, with directions to grant a new trial, to sustain the plea of the statute of limitations made to the amended declaration, and to enter judgment for defendant." The action of the court was based upon the ground "that the Tennessee act of 1883, c. 186 (Shannon's Code, § 4029), created a new cause of action in the next of kin of deceased; that the next of kin for whose benefit the suit is brought is the real plaintiff, and the administrator is a mere trustee and nominal party; and hence an amendment changing the name of the beneficiary was, in effect, a new suit, and could not relate to the original summons, and so escape the effect of the plea of the statute of limitations." This case is reported in 35 C. C. A. 24, 92 F. 820. On the remand of the case to the United States circuit court, the former judgment was set aside, and a new trial granted.

It appears that at this stage of the case, and before a new trial was had, to wit, the 10th of October, 1899, the plaintiff took a voluntary nonsuit, and the cause was dismissed. From this judgment the defendant company on January 20, 1900, prosecuted a writ of error to the United States circuit court of appeals at Cincinnati, insisting that under the former mandate of reversal the circuit court should have entered a final judgment in favor of defendant company, but the circuit court of appeals on February 2, 1901, affirmed the judgment of the circuit court. See Railroad Co. v. Hooper, 44 C. C. A. 586, 105 F. 550. In the meantime, after the nonsuit and dismissal of the case in the United States circuit court, and before the suing out of the last writ of error to the United States circuit court of appeals, the plaintiff, on October 20, 1899, brought a new suit for $2,000 damages in the circuit court of Knox county. The defendant pleaded not guilty and the statute of limitations of one year. To this plea of the statute of limitations the plaintiff replied the bringing of the former suit, as above recited, within the time limited, the nonsuit and dismissal without prejudice, and that this new suit was brought within one year after the termination of the first suit, under Shannon's Code, § 4446. To this replication the defendant company, on February 10, 1900, demurred on several grounds, and particularly because the removal of the original suit to the federal court had removed not only that suit, but the cause of action; that the state court was thereby deprived of all jurisdiction over the subject-matter of the suit, and the new suit could not be maintained in the state court. The circuit judge, on March 10, 1900, sustained this demurrer on the ground stated, and dismissed the plaintiff's suit. On appeal to this court that judgment was, on October 6, 1900, reversed, and the cause remanded. It was held by this court that when an action commenced in due time in the state court is removed to the federal court, and there disposed of by voluntary nonsuit, the plaintiff may, under section 4446, Shannon's Code, within one year thereafter, bring and maintain a new suit on the same cause of action in the state court, although the latter action would have been barred but for the saving of the statute. Hooper v. Railway Co., 106 Tenn. 28, 60 S.W. 607. On the remand of the case to the circuit court of Knox county, the defendant company, on March 4, 1901, filed a rejoinder to the plaintiff's replication to defendant's plea of the statute of limitations. Then followed a demurrer by plaintiff to the rejoinder, which was overruled by the court. Plaintiff then filed a sur rejoinder, to which defendant demurred. The substance of this voluminous pleading was: First, that plaintiff's action was barred by the statute of limitations of one year; and, second, that the fact had been finally adjudicated by the United States circuit court at Cincinnati in the suit therein pending between these parties for the same cause of action. The circuit court of Knox county overruled the demurrer herein so far as it averred former adjudication, but sustained said demurrer to the extent of holding that the present suit is barred by the statute of limitations of one year, and dismissing said suit. Plaintiff appealed, and assigns as error the action of the circuit court adjudging that plaintiff's suit is barred.

The original suit herein was brought by the administrator of James Lebow, and in the original declaration Mariah Lebow the mother of deceased, was named as beneficiary. The designation of Mariah Lebow, the mother of deceased, as next of kin and beneficiary of the suit, was erroneous, since James M. Lebow, the father of deceased, survived him. Accordingly, after the removal of the cause to the United States circuit court, leave was obtained to amend the declaration so as to strike out the name of Mariah Lebow as beneficiary, and substitute the name of James M. Lebow, the father of deceased, as next of kin and sole beneficiary. This amendment and substitution was made more than 12 months after the commencement of the original action. The question now presented for our determination is whether this amendment introduced a new cause of action, or did it relate back to the original summons. If it introduced a new cause of action, the suit is...