Turcott v. Yazoo & M. V. R. Co.

• Decision Date: 04 May 1898
• Citation: 45 S.W. 1067,101 Tenn. 102
• Parties: TURCOTT v. YAZOO & M. V. R. CO.
• Court: Tennessee Supreme Court

45 S.W. 1067

101 Tenn. 102

TURCOTT v. YAZOO & M. V. R. CO.

Supreme Court of Tennessee.

May 4, 1898

Appeal from circuit court, Shelby county; L. H. Estes, Judge.

Action by Joseph Turcott against the Yazoo & Mississippi Valley Railroad Company. From a judgment sustaining a demurrer to the replication to defendant's plea of the statute of limitations; plaintiff appeals. Affirmed.

Carroll Chalmers & McKellar, for appellant.

Fentress & Cooper, for appellee.

WILKES J.

This is an action for damages for personal injuries inflicted in the shops of the defendant company at Vicksburg, Miss. The action was brought at Memphis, Tenn., on the 25th of May, 1895 about 1 1/2 years after the injury was suffered. Demurrers were filed, and the declaration was amended. To the declaration as amended pleas of not guilty, contributory negligence, and the Tennessee statute of limitation of one year for injuries to persons were filed. The latter plea states in detail that the defendant company had been operating its road through the state of Mississippi into and in the state of Tennessee for 14 years; that it had an office and agents in the city of Memphis; and on these agents service at any time could have been had; and that at no time had there been any impediment or hindrance to the bringing of this or any other suit against it, or to the service of legal process upon it. To this plea there was a replication, in substance, that the defendant is a foreign corporation organized and existing under the laws of Mississippi, and that at the time of the accrual of this cause of action it had no corporate or legal existence in Tennessee, because it had not complied with the requirements of the Acts of 1891 (chapter 122) as to the filing and registration of its charter, and, not having so complied until after the bringing of this suit, it cannot plead the statute of limitations of one year in bar of the suit. There was a demurrer to this replication, and the demurrer was sustained.

The exact questions presented are whether foreign corporations can plead and rely upon this Tennessee statute of limitation when they have offices and agents in the state subject to continuous service of process, and whether the failure to file and register its charter will deprive it of that right if otherwise it would be held to have it. Under the statutes of Tennessee (Shannon's Code, § 4469) it is provided among other things, that actions for injuries to the person must be commenced within one year after the cause of action accrues or be barred. Section 4455, Shannon's Code, provides: "If at any time any cause of action shall accrue against any person who shall be out of this state, the action may be commenced within the time limited therefor after such person shall have come into the state and after any cause of action shall have accrued. If the person against whom it has accrued shall be absent from or reside out of the state, the time of his absence or residence out of the state shall not be taken as any part of the time limited for the commencement of the action." The word "person" includes a "corporation." Id. § 62. The exception made in this statute does not apply to a natural person unless his absence from the state is such as to prevent service of process. Taylor v. McGill, 6 Lea, 294, 301. The statutes relating to service of process upon corporations are as follows: "Service of process on the president or other head of a corporation, or in his absence on the cashier, treasurer or secretary, or in the absence of such officers on any director of such corporation shall be sufficient." Shannon's Code, § 4539. "If neither the president, cashier or secretary resides within the state service on the chief agent of the corporation residing at the time in the county where the action is brought shall be deemed sufficient." Id. § 4540. No question is made but that there was ample opportunity to obtain service of process at any time on the defendant, through its officers and agents, nor that foreign corporations are liable to service under these sections. Telephone Co. v. Turner, 88 Tenn. 266, 12 S.W. 544. But the contention is that a foreign corporation is out of the state, and resides out of the state, and so falls within the exception before stated; and that, while process may be made upon it, still it is optional with a party aggrieved whether and when he will commence his suit, and the bar of the statute cannot be set up if the suit is not brought within one year, and that it does not come within the state, in legal contemplation, till it files and registers its charter. It appears that there is some conflict of decision upon the first question. The reason of the rule of law is that no person who is not, and has not been, subject to service of process within the year, shall avail himself of its exemption. Taylor v. McGill, 6 Lea, 294. Unquestionably, the residence of a corporation is the state of its creation. Young v. Iron Co., 85 Tenn, 189, 2 S.W. 202. And, if we should give the statute a strict literal construction it might be held that a foreign corporation was not entitled to the benefit of the limitation. Still the courts will not permit the literalism of the statute to thwart its obvious purpose, intent, and meaning. A thing may be within the letter of the statute, yet not within its operation, if not so intended. State v. Clarksville & R. T. Turnpike Co., 2 Sneed, 88; Taylor v. McGill, 6 Lea, 294. We think the true rule is laid down in Murfree on Foreign Corporations, and that the rule as thus laid down is based on sound reason and principle. In speaking of such foreign corporation pleading the statute of limitations (section 247), it is said: "As to the question whether a foreign corporation, when sued, can plead the bar of the statute in defense, it may be said that the great weight of authority is in favor of the conclusion suggested above, that the true test of the running of the statute is the liability of

the party, invoking its bar to the service of process during the whole of the period prescribed; that, if the operations of the company within the jurisdiction were such as to render it liable to suit, then it may plead the statute. The principles upon which this doctrine rests have nowhere been more effectively expressed than in the decision of the Illinois appellate court in Pennsylvania Co. v. Sloan, 1 Ill.App. 364. Said Pleasants, J. (who delivered the...