McWhorter v. Gibson, 1.

• Decision Date: 13 April 1935
• Docket Number: No. 1.,1.
• Citation: 84 S.W.2d 108
• Parties: McWHORTER et al. v. GIBSON.
• Court: Tennessee Supreme Court

84 S.W.2d 108

McWHORTER et al. v. GIBSON.

No. 1.

Court of Appeals of Tennessee, Eastern Section.

April 13, 1935.

Certiorari Denied by Supreme Court June 29, 1935.

Appeal in Error from Circuit Court, Hamilton County; Oscar Yarnell, Judge.

Action by Rosa Gibson against W. L. McWhorter and another. Judgment for plaintiff, and defendants appeal in error.

Reversed and suit dismissed.

Wilkerson & Wilkerson, of Chattanooga, and W. M. Beck, of Ft. Payne, Ala., and Edgar Watkins, Jr., of Atlanta Ga., for plaintiffs in error.

Thach & Thach, of Chattanooga, and Scott & Dawson, of Fort Payne, Ala., for defendant in error.

AILOR, Judge.

This is an action for damages for the death of J. B. Stout, minor son of plaintiff, alleged to have been caused by the negligent operation of a truck by defendant McWhorter, resulting in a collision between such truck and an automobile in which said J. B. Stout was riding. It was alleged in the declaration that plaintiff was the mother of said J. B. Stout, a minor about nineteen years of age; that the father of said J. B. Stout was dead; and that she, as the mother, had a right of action under the laws of the state of Alabama and especially under section 5695 of the Code of 1928 of Alabama which was in full force and effect at the time of said accident, and which provides:

"When the death of a minor child is caused by the wrongful act, or omission, or negligence or any person or persons, or corporation, his or their servants or agents, the father, or the mother, in cases mentioned in the preceding section; or if the father and mother are both dead, or if they decline to bring the action or fail to do so within six months from the death of the minor, the personal representative of such minor may sue, and in any case shall recover such damages as the jury may assess; but a suit by any one of them for the wrongful death of the minor shall be a bar to another action, either under this section or under the succeeding section."

The suit was against W. L. McWhorter, as owner and driver of the motor vehicle alleged to have been negligently operated in such manner as to cause the death of said J. B. Stout, and also against Builders & Manufacturers Mutual Casualty Company, it being alleged in the declaration that said W. L. McWhorter had procured the issuance of an indemnity insurance policy, which policy provided for the payment of $5,000 for the death of or injury to any one person, and $10,000 for damages caused by any one accident or occurrence; that under the laws of Alabama and the terms and conditions of said policy, plaintiff was permitted to bring suit against the owner and operator of said automobile, and also against said insurance company, to recover damages resulting from the negligent operation of said automobile.

Defendant McWhorter interposed a plea to the declaration as filed, in which it was alleged that said defendant was a citizen and resident of DeKalb county, Ala., at the time the cause of action arose and at the time of the institution of the suit, and that the plaintiff was likewise a resident of the same county at the time the cause of action arose and at the time of the institution of the suit, and that the cause of action arose in said county; that the said J. B. Stout was, at the time of his injury and death, duly and lawfully married to one Bernice Peek Stout, and that said marriage was still subsisting at the time the cause of action arose; that said Bernice Peek Stout survived her said husband, and resided in DeKalb county, Ala., and that she was then making demand upon said defendant for damages for the alleged wrongful death of her husband, who died intestate; that the said J. B. Stout was not at the time of his death a member of the family of plaintiff, and had not been for more than a year prior to his death; that he had not lived with the plaintiff for a considerable time prior to his death; and that deceased was not dependent upon, or under the care, custody, and control of the plaintiff, but that he was a married man and the head of a family, and not a member of the family of plaintiff.

It was further alleged in said plea that said accident occurred in Alabama, and that the laws of said state would govern and control the rights and liabilities of the parties; that under the laws of the state of Alabama the mother of deceased, the plaintiff, is not vested with the right to sue for damages for the alleged wrongful death of said J. B. Stout, and the statute laws of said state were specially relied upon as follows:

Code, § 5694: "A father, or in case of his death or desertion of his family, or his imprisonment for a term of two years or more under a conviction for crime, or his confinement in an insane hospital, or if he has been declared of unsound mind, the mother may sue for an injury to a minor child, a member of the family."

Section 5695 (this section is not recopied as it appears on page 109 of this report in connection with statement of the contents of the declaration).

Section 5696: "A personal representative may maintain an action, and recover such damages as the jury may assess in a court of competent jurisdiction within the State of Alabama, and not elsewhere for the wrongful act, omission, or negligence of any person or persons, or corporation, his or their servants or agents, whereby the death of his testator or intestate was caused, if the testator or intestate could have maintained an action for such wrongful act, omission, or negligence, if it had not caused death. Such action shall not abate by the death of the defendant, but may be revived against his personal representatives; and may be maintained, though there has not been prosecution, or conviction, or acquittal of the defendant for the wrongful act, or omission, or negligence; and the damages recovered are not subject to the payment of the debts or liabilities of the testator or intestate, but must be distributed according to the statute of distributions. Such action must be brought within two years from and after the death of the testator or intestate."

Section 7374: "The personal estate of persons dying intestate as to such estate, after the payment of debts and charges against the estate, is to be distributed in the same manner as his real estate, and according to the same rules; except that the widow, if there are no children, is entitled to all the personal estate, or, if but one child, she is entitled to one-half; if more than one, and not more than four, children, to a child's part; and if more than four children, to one-fifth."

It was insisted that the right of recovery was in the administrator for the use and benefit of the widow of J. B. Stout and that the plaintiff had no right of action; but that if defendant should be mistaken in his interpretation of the laws of Alabama regulating the rights of the parties, and a proper interpretation thereof should vest the mother with the right to prosecute this suit, then said laws were so contrary to the established law and public policy of this state that same should not be enforced, and the suit should be dismissed. The plea was sworn to.

The defendant insurance company also filed a sworn plea in the form of a plea in abatement. It was denied that this defendant was subject to suit in Tennessee in the manner by which it was sought to be sued in this case, and relied specially upon section 8676 of the 1932 Code of Tennessee, as follows:

"Foreign corporations suable here, when. — Any corporation claiming existence under the laws of the United States or any other state, or of any country foreign to the United States, or any business trust found doing business in this state, shall be subject to suit here to the same extent that corporations of this state are by the laws thereof liable to be sued, so far as relates to any transaction had, in whole or in part, within this state, or any cause of action arising here, but not otherwise."

It specially pleaded its existence as a foreign corporation under the laws of the state of Illinois; that the cause of action sued on did not arise in Hamilton county, Tenn., but that the same arose and accrued in DeKalb county, Ala. And that this defendant was not subject to suit by service of process upon the secretary of state, as in the suit at bar, except in the county where the cause of action arose, or in the county where the party to be served resides, relying upon section 4126 of the 1932 Code of Tennessee as follows:

"The venue of all actions, suits or proceedings in case of service of process upon such designated agent, or, in lieu, upon the secretary of state, may be in the county in which the cause of action arose or accrued; or, in the county where the one to be served resides and the process is so served, except where the action is local in nature. In event of service on the secretary of state, he shall pursue the method prescribed by section 4124 et seq. In actions, suits or proceedings against foreign corporations otherwise maintaining an office or agent in the state, venue shall be as this Code provides."

Upon motion of the plaintiff both of the foregoing pleas were stricken from the record, and ten days allowed for further pleas. Exceptions were preserved to this action of the court in striking said pleas. Thereafter defendants filed a joint plea, the defendant McWhorter a plea of not guilty, and Builders & Manufacturers Mutual Casualty Company that it did not contract and agree as charged. They likewise renewed and relied upon the same questions raised by the pleas in abatement. Plaintiff joined issues on these pleas, and filed replication to that portion of the plea challenging the jurisdiction of the Hamilton county circuit court. In this replication it was...