Rye v. Du Pont Rayon Co.

• Decision Date: 18 July 1931
• Citation: 40 S.W.2d 1041,163 Tenn. 95
• Parties: RYE v. DU PONT RAYON CO.
• Court: Tennessee Supreme Court

40 S.W.2d 1041

163 Tenn. 95

RYE v. DU PONT RAYON CO.

Supreme Court of Tennessee.

July 18, 1931

Appeal from Circuit Court, Davidson County; A. G. Rutherford, Judge.

Proceedings under the Workmen's Compensation Act by Jasper Rye employee, opposed by the Du Pont Rayon Company, employer. From a judgment of dismissal, plaintiff appeals.

Reversed and remanded.

Richard Marshall and Thomas A. Shriver, Jr., both of Nashville, for plaintiff in error.

Tyne Peebles, Henry & Tyne, of Nashville, for defendant in error.

COOK J.

The original petition was filed under the Workmen's Compensation Act, chapter 123, Pub. Acts of 1919. When called for hearing in the circuit court, the petition was dismissed for failure to prosecute. Upon the refusal of the court to sustain petitioner's motion to set aside the order of dismissal, an appeal was prayed, granted, and perfected, but subsequently dismissed.

A second petition similar to the first was then filed to recover upon the facts stated in the first petition. It contains a statement that the first petition was filed, after notice given, or waived, as required by section 23 of the Compensation Act, within one year after the accident, and that the second action was commenced within a year after dismissal of the first.

The defendant pleaded res adjudicata, and the statute of limitations of one year prescribed by sections 24 and 31 of the Compensation Act. Petitioner moved to strike the plea for insufficiency. The motion, treated as a demurrer, was overruled, the plea sustained, and the second petition dismissed.

It was insisted by petitioner in the trial court, and is insisted here, that the order dismissing the first petition was not an adjudication of the rights of the parties, and that the statute of limitations prescribed by the Compensation Act and the statute, section 4446 of Shannon's Code, saving the bar of the statute in a second successive action commenced within a year from dismissal of the first on grounds not concluding the right of action, should be construed together.

As intimated in Nelson v. Hoss, 2 Shan. Cas. 503 dismissal for failure to prosecute an action does not conclude the right to renew the suit within a year, as provided in section 4446 of Shannon's Code. And it was held in La Follette Coal, Iron & R. Co. v. Minton, 117 Tenn. 426, 101 S.W. 178, 11 L. R. A. (N. S.) 478, that dismissal of the first suit for failure to file a declaration did not conclude the right to renew the action within a year. See, also, Madison v. New Lumber Co., 3 Tenn. Civ. App. 2, and Nash v. Davis, 3 Tenn. Civ. App. 634. The reason for the rule embodied in section 4446, supra, is given in Nashville, C. & St. L. Railway v. Bolton, 134 Tenn. 455, 184 S.W. 9.

No reasonable distinction can be drawn between dismissal for failure to prosecute or to file a declaration and dismissal for nonappearance. Neither method of disposal involves an adjudication of the case upon the merits, and neither rests on grounds concluding the right of action.

By the common law the right of action for personal injuries died with the person. The statute, section 4025 of Shannon's Code, abrogated that rule, extended the right of action to the widow and next of kin, and prescribed a remedy for enforcement of the newly created right. While this statute, giving the new right and remedy did not include a statute of limitations, the antecedent statute of limitations of one year, section 4469 of Shannon's Code, was held applicable, as was section 4446, authorizing a renewal of the action after dismissal of the first on grounds not concluding the right. This is in accord with the rule that statutes of limitation extend to newly created remedies of similar character.

By chapter 123, Pub. Acts of 1919, the old law of master and servant was cut away as a social and economic obsolescence and new rights, remedies, and obligations substituted for the compensation of workmen injured or killed by industrial accidents. The right of action thus substituted was not strictly an action in tort or contract, and to avoid doubt as to the application of existing statutes of limitations the Legislature incorporated one in the act. In compensation cases, as in personal injury cases, the elements determinative of the inchoate right of the claimants are fixed as of the date of the...