Nashville, C. & St. L. Ry. v. Bolton

• Decision Date: 25 March 1915
• Citation: 184 S.W. 9,134 Tenn. 447
• Parties: NASHVILLE, C. & ST. L. RY. v. BOLTON.
• Court: Tennessee Supreme Court

184 S.W. 9

134 Tenn. 447

NASHVILLE, C. & ST. L. RY. v. BOLTON.

Supreme Court of Tennessee.

March 25, 1915

Certiorari to Court of Civil Appeals.

Action by Julia E. Bolton against the Nashville, Chattanooga & St. Louis Railway. From a judgment of the Court of Civil Appeals reversing a judgment for plaintiff, plaintiff brings certiorari. Writ granted, and judgment below modified and affirmed.

Claude Waller, of Nashville, W. B. Lamb, of Fayetteville, and Frank Slemons, of Nashville, for plaintiff in error.

W. H Washington and Jno. B. Daniel, both of Nashville, for defendant in error.

WILLIAMS J.

This action was brought in the circuit court of Davidson county by the defendant in error, the widow of William H. Bolton, to recover damages for the alleged wrongful death of the husband who was an engineer in the employ of the railway company.

An earlier suit on the same cause of action had been commenced and prosecuted by the widow in the circuit court of Grundy county. At one stage in the history of that first suit a judgment was recovered by her; the railway company appealed to this court, where the judgment was reversed and the cause remanded to the circuit court of Grundy county. After remand the widow, as plaintiff, took a voluntary nonsuit, and within one year thereafter began the present suit in Davidson county.

The railway company interposed as a defense, the general statute of limitation of one year in relation to actions for wrongful death.

The circuit judge held against this defense, and rendered judgment on a verdict of the jury against the railway company. The Court of Civil Appeals (Judge Higgins not sitting and Judge Hall dissenting) reversed this ruling, on an appeal to that court by the defendant in the court below.

The widow by petition for certiorari seeks a reversal of the ruling at our hands.

The position of the defendant railway for affirmance is that the new action must have been commenced within one year from the date of the reversal of the judgment in this court, and that since more than a year had elapsed before the present action was brought the suit is barred, notwithstanding it was begun within the year next following the voluntary nonsuit.

The statute providing for such new action is section 4446 of Code (Shannon), which reads as follows:

"If the action is commenced within the time limited, 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 year after the reversal or arrest."

Counsel of both parties and the Court of Civil Appeals say that the question thus presented is one of first impression in this state, and our investigation demonstrates the correctness of the statement.

The statute is remedial, and should be liberally construed in furtherance of its purpose. The decisions of this court have given a liberal construction to the statute, from almost every angle questions have been presented.

Differing from the courts of some other jurisdictions, it has been held that the taking of a voluntary nonsuit entitles a plaintiff to the year in which to begin a second suit. Memphis etc., R. Co. v. Pillow, 9 Heisk. (56 Tenn.) 248; Hooper v. Atlanta, etc., R. Co., 106 Tenn. 28, 60 S.W. 607, 53 L. R. A. 931. So differing, this court has held that the statute applies to actions in equity as well as to actions at law, and that plaintiff's failure to file a declaration, which results in a dismissal of his suit, does not prevent the bringing of a new suit. La Follyette Coal, etc., Co., v. Minton, 117 Tenn. 415, 101 S.W. 178, 11 L. R. A. (N. S.) 478.

Passing to a consideration of the immediate question: Is the one year allowed for the bringing of a new suit to be computed from the date of such a reversal or from the date of the nonsuit?

Statutes, similar in terms to ours, are in effect in several other states, and the decisions therein, while comparatively few in number on the point, are in opposition to the contention of the defendant company.

The position of the railway company is supported by a dictum incorporated in the opinion of the court in Arnett v. Coffey, 5 Colo. App. 560, 39 P. 894. It there appeared that suit had been brought by the appellee against the appellants to set aside a conveyance of real estate for fraud. It was averred in the complaint that the fraud first came to plaintiff's knowledge in November, 1888. A judgment was entered in favor of plaintiff, defendants appealed, and in the appellate court there was a reversal and remand. In the lower court plaintiff dismissed his suit, and a second judgment was rendered in his favor. On appeal therefrom it was said by the court:

"Section 2180 is as follows: 'If in any action duly commenced within the time herein limited, and allowed therefor, * * * after a verdict for the plaintiff, the judgment shall be arrested; or if the judgment for the plaintiff shall be reversed on a writ of error, the plaintiff may commence a new action for the same cause, at any time within one year after the abatement or other determination of the original suit, or after the reversal of the judgment therein.' * * * It was barred by the provisions of section 2180, even if we concede that the latter section has any application to the case. It is only where the plaintiff's judgment is reversed on a writ of error that the additional year is allowed him, but this was not a reversal on a writ of error. If, however, we were at liberty to construe the statute as comprehending cases of appeal, the plaintiff's position is no better, because he did not bring his new action within one year after the reversal. It is true that the first suit was not at an end until its dismissal in the lower court in April, 1892; and counsel seem to think that the year allowed the plaintiff within which to renew his action commenced then, but the statute does not so read. In no possible aspect of the case was this suit brought in time."

This dictum has been incorporated. erroneously as we believe, in the text of the article on Limitation of Actions in 25 Cyc. 1323, and the Colorado case alone cited as authority.

The better doctrine is that the word "reversed" in the above, and in similar statutes in other jurisdictions, should be construed to mean a...