McIver v. Florida Cent. & P.R. Co.

• Decision Date: 31 January 1900
• Citation: 36 S.E. 775,110 Ga. 223
• Parties: McIVER v. FLORIDA CENT. & P. R. CO.
• Court: Georgia Supreme Court

36 S.E. 775

110 Ga. 223

McIVER v. FLORIDA CENT. & P. R. CO.

Supreme Court of Georgia

January 31, 1900

Syllabus by the Court.

1. Though the plaintiff in a suit which had been properly removed from a state to a federal court having concurrent jurisdiction of the cause of action on which the suit was founded was nonsuited, or voluntarily dismissed his case in the United States court, it was, nevertheless, his right to bring another suit on the same cause of action in the state court at any time within the statute of limitations applicable to such an action. The above is true notwithstanding in the second suit the damages were laid in an amount which would prevent another removal to the federal court.

2. The petition set forth a cause of action as against the demurrer filed to the same.

3. When a suit is commenced in a state court and removed to a federal court under the law of congress, not only the case, but the cause of action, is removed; and, after dismissal or nonsuit in the federal court, it cannot be renewed in the state court for the same cause of action, though the damages are laid in an amount of which the federal court has no jurisdiction. Per Simmons, C.J., and Little, J., dissenting.

Error from city court of Brunswick; S.C. Atkinson, Judge.

Action by Priscilla McIver against the Florida Central & Peninsular Railroad Company. Judgment for defendant, and plaintiff brings error. Reversed.

Garrard Meldrim & Newman and D. W. Krauss, for plaintiff in error.

Crovatt & Whitfield, for defendant in error.

COBB J.

Priscilla McIver brought an action against the Florida Central & Peninsular Railroad Company, alleging in her petition, which was filed on January 17, 1899, in substance as follows: The defendant, a railroad corporation, damaged her in the sum of $1,999, in that on July 17, 1897, her minor son, with a companion, had, with the consent of a Negro train hand boarded a freight train of defendant to go from one station on the road of defendant to another. They paid to a train hand the sum of 90 cents as fare, the latter agreeing to see the conductor in reference to the matter. Her son and his companion first went into a box car, and afterwards left the same and got on a flat car. While on the latter car, and the train was in rapid motion, a white man, having on the uniform usually worn by the employes of the company, "who petitioner believes and charges was the conductor in charge of the train, together with two Negro train hands, one of whom was the party to whom" the 90 cents had been paid, came upon the flat car and demanded to know where they were going, to which a reply was made that they had paid their fare to one of the train hands present. One of the train hands asked if they had any money, to which a reply was made that they had, whereupon he demanded the same, and upon the refusal of the companion of petitioner's son to deliver the money the train hand attempted to take the same, and "did then and there brutally, cruelly, and inhumanly assault and beat your petitioner's said son, and did then and there force and hurl him from said rapidly moving car and train, thereby instantly causing his death." The injuries resulting in the death of her son were inflicted by the "defendant its agents, servants, and employés." At the time of the death of her son he was 17 years of age, and had been earning $1 per day. He was unmarried, left no wife and child, and petitioner was dependant upon him, and he contributed to her support. One of the paragraphs of the petition was as follows: "Your petitioner further shows that at the May term, 1898, of the city court of Brunswick, in and for said county, she instituted her suit against the said defendant company for the homicide of her said son, which suit was subsequently removed to the United States circuit court for the Eastern division of the Southern district of Georgia, when, on the 16th day of January, 1899, and during the November term, 1898, of the said circuit court, after the evidence for the plaintiff in said case had been concluded, upon her motion the said case of your petitioner was discontinued and dismissed from said court; and the plaintiff now, within less than two years from the accruing of said cause of action, comes and reinstitutes her said case against said defendant in conformity with law." To the petition the defendant filed a demurrer, which was, in substance, as follows: (1) The injuries alleged do not appear to have been caused by defendant, or any one acting with its permission, or under its command, or in its behalf, within the scope of the duty imposed upon such person. (2) It does not appear that the relation of passenger and carrier existed between plaintiff's son and defendant. (3) It appears that plaintiff's son was engaged with his companion in an undertaking to violate the rules of the defendant and defraud it of its revenue. (4) It appears that the train was a freight train, and not a passenger train, and it is not alleged that such train was accustomed or authorized to carry passengers. (5) It appearing that another suit on the same cause of action had been brought in the city court of Brunswick, in which the damages were laid at $10,000, and removed to the United States court, and there discontinued and dismissed, the city court of Brunswick has no jurisdiction to entertain the present suit, and the laying of damages in this suit at $1,999 is an attempt to deprive the United States court of a case solely within its jurisdiction by virtue of the removal referred to. The demurrer was sustained, and the plaintiff excepted.

1. The last ground of the demurrer will be first dealt with. When one brings an action in a court having jurisdiction to determine the same, and is nonsuited or voluntarily dismisses the case, such nonsuit or dismissal does not determine in any way the merits of the controversy; and as a general rule the plaintiff may, if not barred by the statute of limitations institute a similar suit in the same court, or in any other court having jurisdiction of the action, or he may adopt a different remedy appropriate to the cause of action, and enforce it in the court in which the first suit was brought, or in any other court having jurisdiction to enforce the same. In the language of one writer, a nonsuit "is but like the blowing out of a candle, which a man at his own pleasure may light again." I Freem. Judgm. § 261, citing March, Arbitraments, 215. See, also, 3 Bl. Comm. 296; Bucher v. Railroad Co., 125 U.S. 555, 8 S.Ct. 974, 31 L.Ed. 795; Homer v. Brown, 16 How. 354, 365, 14 L.Ed. 970; Smith v. Floyd Co., 85 Ga. 420, 11 S.E. 850; Phipps v. Alford, 95 Ga. 215, 22 S.E. 152; Civ. Code, § 5043. The question raised by the ground of the demurrer now under consideration is whether the removal of a case to a federal court from a state court which has concurrent jurisdiction of the same, and the entering of a judgment of nonsuit or the allowance of a voluntary dismissal in the former court, prevents the bringing of another suit on the same cause of action in the state court, when at the date the latter suit is filed the cause of action is not barred by the statute of limitations. An action brought in a court of this state, and there nonsuited or voluntarily dismissed or discontinued by the plaintiff, may be renewed in any court having jurisdiction of the cause of action, upon payment of costs. Id. If the cause of action was not barred by the statute of limitations when the suit was originally brought, the action may be recommenced at any time within six months after the dismissal or nonsuit, notwithstanding it may have become barred while the first suit is pending Id. § 3786. The city court of Brunswick and the federal court had concurrent jurisdiction of the cause of action on which the first suit was founded, the damages being laid at $10,000. The suit was originally brought in the former, and regularly and lawfully removed to the latter, court, and there voluntarily dismissed by the plaintiff. The plaintiff then sought to bring another suit, in which the damages were laid at $1,999, on the same cause of action, on the city court. If the cause of action was barred by the statute of limitations at the time such new suit was filed, then the case would have been properly dismissed, as it has been held by this court that when a case has been removed to the federal court, although there may be no adjudication in the federal court on the cause of action, if the same becomes barred while the case is pending in the latter court the action cannot be renewed in the state court within six months, under the provisions of the section above quoted. Cox v. Railroad Co., 68 Ga. 446. The same is true where the suit was originally brought in the federal court. Publishing Co. v. De Laughter, 95 Ga. 17, 21 S.E. 1000. There is certainly nothing in either of the cases just cited to call for a ruling that no action could ever be brought in the state court merely because of the removal of the former suit to the federal court, if the cause of action is not barred by the statute of limitations. The only point necessary to be decided in the Cox Case was, whether the law contained in the section of the Code above cited had any application to a case removed to the federal court. In that case the suit had been brought in a state court, and had been properly removed to the federal court, and while there a period of time had elapsed which would have the effect of barring the plaintiff from bringing another suit based on the same cause of action. It was held that the case could not be recommenced in the state court, as the six-months, statute above referred to did not prevent the bar of the statute of limitations from attaching to a cause of action removed...