Travellers' Ins. Co. v. Inman

• Decision Date: 30 November 1931
• Docket Number: 29630
• Citation: 167 Miss. 288,138 So. 339
• Parties: TRAVELLERS' INS. CO. v. INMAN
• Court: Mississippi Supreme Court

138 So. 339

167 Miss. 288

TRAVELLERS' INS. CO. v. INMAN

No. 29630

Supreme Court of Mississippi

November 30, 1931

Division A

Suggestion Of Error Overruled April 17, 1933.

APPEAL from chancery court of Wilkinson county HON. R. W. CUTRER Chancellor.

Suit by Bennie Inman against the Travelers' Insurance Company and others. From a decree for complainant, defendant named appeals. Reversed, and bill dismissed.

Reversed and, bill dismissed.

Brandon & Brandon, of Natchez, for appellant.

A failure to allege a demand for compensation under the act has been made and payment refused, before commencement of the action, is fatal to the action and the bill must be dismissed.

Philps v. Guy Drilling Co. (La.), 79 So. 549; Mays v. Allison and Langston Supply Co., 5 La. App. 686; Chafin v. Meridian Lumber Company, 125 So. 483.

Where a person is claiming under the Employers' Liability Act such act must be invoked by proper pleadings and the essentials required by the act must be pleaded under the act.

Section 18 of the act (paragraph 1-a) as amended and re-enacted by Act 85 of 1926; Jenkins v. Mann (Ala.), 127 So. 230; Ex Parte Little Cahaba Coal Co. (Ala.), 105 So. 648; Kaplan v. Syertell (Ala.), 116 So. 112; Colorado v. Johnson Iron Works (La.), 83 So. 381; Dewey v. Lutcher-Moore Lumber Co. (La.), 92 So. 273; Labourdette v. Doullut & Williams Ship Building Co. (La.), 100 So. 547; Holthaus v. Lane Cotton Mills Co., 3 La. App. 314; Lay v. Pugh (La. App.), 119 So. 456; Stearns v. Love Drilling Co., 5 La. App. 174.

This action is barred by the one year statute of limitation contained in the act upon which the amended bill is founded.

Section 31 of the Louisiana Workman's Compensation Act, as amended and re-enacted by Act 85 of 1926 of the Session Acts of the State of Louisiana; O'Neal v. Board of Commissioners of New Orleans, La. App. Orleans 10342, 118 So. 770; Connell v. U. S. Sheet and Window Glass Co., 2 La. App. 104.

Where an amendment to a bill of complaint introduces a new cause of action, the statute of limitations may be pleaded in bar.

Limitations of Actions, 17 R. C. L., Sec. 180, pages 815 and 816; 3 L. R. A. (N. S.) pages 259, 307; Cox v. American Freehold & Land Mtg. Co., 88 Miss. 88, 40 So. 739; Union Pacific Railroad Co. v. Wyler, 158 U.S. 285, 15 S.Ct. 877, 39 L.Ed. 983; Clark v. G. M. & N. R. Co., 132 Miss. 627.

Jones & Stockett, of Woodville, for appellee.

A complete answer to the argument of the appellant contained in its sixty-nine page brief filed herein, is found in the opinion of this Honorable Court rendered on a former appeal of this case on suggestion of error wherein Judge Ethridge speaking for Division B said: "We do not apply the rule in this case that where a party tries a case upon one theory, he will be held to that theory on an appeal, for the reason that the record contained liability for the injury to the complainant by the Insurance Company, and to apply that rule would be to have the bill dismissed which would preclude any future action upon such policy."

157 Miss. 821, 128 So. 877.

The decision of this court is the law of the case and controls. It was a correct and just adjudication and decision--even though it might have been wrong which is not at all conceded in any way--it remains the law of the case on all subsequent hearings or appeals.

Griffith Chancery Practice, Sections 698 and 699; New York Life Insurance Co. v. McIntosh, 46 So. 401; Johnson v. Brick Co., 104 Miss. 217, 220, 61 So. 178; Nut v. Knut, 84 Miss. 465, 36 So. 689; King v. Kellog, 114 Miss. 375, 75 So. 134; Cochran v. Latimer, 111 Miss. 192, 71 So. 316; Y. & M. V. R. R. Co. v. Levy, 147 Miss. 831, 112 So. 786; Smith v. Elder, 22 Miss. 105; Green v. McDonald, 21 Miss. 415.

In the opinion rendered on the suggestion of error, this court indicated that if we had submitted the case of Wyatt v. Finley, 167 La. 161, 118 So. 874, on the original hearing that they would have followed the same (157 Miss. 820).

The record now shows that in accord with the opinion and mandate of this court this appellee amended his bill of complaint and introduced evidence on final hearing as to the nature and extent of the injury as against appellant; that the Chancellor after seeing the witnesses and hearing the testimony rendered a proper final decree against the appellant on April 15, 1931, in accord with the provisions of the Louisiana Workmen's Compensation Act of which judicial notice was taken.

We submit that the law of this case has been settled on the suggestion of error which established the liability of the Travelers Insurance Company to Inman because of his injuries and the appellant having elected to ask for and be granted an appeal from the interlocutory order of September 25, 1930, and refused to comply with the statute by giving the bond is now barred from raising the questions covered by the demurrers filed to the bill of complaint.

Argued orally by G. H. Brandon, for appellant, and by James Stockett, for appellee.

OPINION

Cook, J.

The appellee, Bennie Inman, filed this suit by way of an attachment in chancery against his employers, Tibbetts & Tibbetts, nonresidents of this state, and Ben Morris, his fellow servant, for damages for personal injuries alleged to have been sustained as a proximate result of the joint negligence of said defendants, and joined as a defendant the appellant, insurance company, averring that it was indebted to the said nonresident employers. The appellant answered the bill of complaint denying any indebtedness to the principal defendants, and introduced into the record an insurance policy whereby it undertook to insure the principal defendants against any loss or damage actually sustained by the said insured by reason of injury to an employee, claiming that thereunder its liability was only that of indemnity to the insured, and that in no event was there any actual enforceable liability against it until there had been a definitely ascertained and legally fixed liability against the employers, evidenced by a legal judgment against them in favor of the employee. Upon the final hearing of the cause upon the issues then presented by the pleadings, there was a decree against the said insurance company for four thousand dollars as damages sustained by the complainant, Inman, as a result of his injuries, and from that decree the insurance company appealed to this court.

In the opinion of the court rendered on that appeal it was held that, in an attachment in chancery, the alleged indebtedness of a party defendant to a nonresident principal defendant, which is made the basis of jurisdiction in the chancery court, must be an indebtedness owing in praesenti to the nonresident principal defendant, and must be of such nature that at the time suit is filed the principal defendant can enforce the debt against the debtor in a court of competent jurisdiction without regard to and independent of, the complainant's suit or cause of action against the principal defendant, and that a person "cannot be made a, party as debtor to a principal defendant when the fact vel non of his indebtedness is dependent on whether the principal defendant shall be adjudged to be indebted to complainant, which adjudication necessarily must come after filing of the suit," and the decree of the court below was reversed and the bill dismissed as to the insurance company, and the principal defendant. On suggestion of error the court recognized that, under the decisions of the Supreme Court of Louisiana, construing section 23 of the Louisiana Workmen's Compensation Law (Act No. 85 of 1926), "there is a direct obligation from the insurance company insuring employers . . . under said act," and that "the insurance company, in such case, may be sued directly by the employee," and sustained the suggestion of error to the original opinion in so far as it ordered the final dismissal of the suit, and ordered that "on a remand of the cause to the court below, the proceedings may be amended as the parties may be advised is necessary, the cause tried and a personal judgment rendered, if proper, against the Travellers' Insurance Company." The opinions rendered on the former appeal, both on the merits and on the suggestion of error, are reported in 157 Miss. 810 to 822, 126 So. 399, 128 So. 877, and reference is here made to these opinions for a further and full statement of the pleadings and issues involved and decided on that appeal.

Throughout the former trial on the merits in the court below and upon appeal here, the appellee asserted no direct or primary liability against the appellant, but proceeded on the theory that it was indebted to the principal defendant, and this will appear from the brief of counsel for the appellee wherein it is stated that "the appellant was named defendant under the statutes in such cases for the purposes of binding in its hands any indebtedness it might owe to the non-resident defendants,...