Davis v. Parks

ON Petition to Rehear.

A candid and able petition.to rehear has been filed, bringing to the court’s attention two cases not mentioned or considered in the original opinion.

1. It is said that since the decision in this case the United States supreme court has settled the question of venue, or jurisdiction, in the case of James C. Davis, Agent, v. John O’Hara, decided November 24, 1924, 45 S. Ct. 104 , 69 L. Ed. —, on certiorari to the supreme court of Nebraska.

On reading this opinion, we do not think it conflicts with the views advanced in the original opinion handed down in the instant case, but, on the contrary, rather tends to support these views.

In that case the plaintiff was injured in September, 1919, while employed by the director general in the operation of a railroad under federal control. The injury occurred at Council Bluffs, Iowa, where plaintiff then resided. He brought suit for damages in the district court of Douglas county, Neb. As stated in the opinion:

“His petition did not show where the injury occurred or where he lived when injured. The director general appeared specially for the purpose of objecting to the jurisdiction of the court ‘ over the person of the defendant and over the subject-matter of this action,’ and *340 moved to quash the summons; the grounds alleged were ‘that General Orders Nos. '50, 50A, 18, 18A, and 18B, issued by the director general, . . . provide that all suits against the director general of railroads, as authorized by General Order No. 50A, must be brought in the county or district where the plaintiff resided at the time of the accrual of the cause of action, or in the county or district where the cause of action arose’; that plaintiff, at the time of the accrual of the cause of action, did not reside in Douglas county, Neb., and that the cause of action, did not arise there. Plaintiff did not deny the allegations on which the motion was based. The district court overruled the motion without more. The defendant answered, setting up the same objection to jurisdiction and his defenses on the merits. Later, plaintiff filed an amended petition; and to that defendant filed answer, in which he again asserted his objection to jurisdiction. At the trial, after the evidence was heard, the court upon its own motion instructed the jury to return a verdict for defendant; and judgment was entered in his favor. The plaintiff made a motion for a new trial, which was denied. He then appealed to the supreme court. Defendant’s objection to the jurisdiction was urged by brief filed by leave of court specially given. But the question was not decided, because defendant had not taken a cross-appeal: O’Hara v. Hines, 108 Neb., 74, 81 , 187 N. W., 643 . The judgment of the district court was reversed on the merits. At the new trial plaintiff testified that his injuries occurred at Council Bluffs, Iowa, and that he resided there when he was injured. The defendant, by appropriate objections and motions made at the time, of impaneling the jury, at the close of *341 plaintiff’s evidence, and at the close of all the evidence, insisted upon its objection to the jurisdiction of the court, but all were overruled. There was a verdict and judgment for plaintiff. Defendant appealed to the supreme court. A syllabus (by the court) contains the following: ‘Where the director general specially appears to object to the jurisdiction of the court over his person, and at the same time challenges the jurisdiction of the court over the subject-matter of the controversy, as to which the motion is, not well founded, this is a voluntary appearance equivalent to the service of summons, and gives the court jurisdiction over the person of such officer.’ O’Hara v. Davis, 109 Neb., 615 , 192 N. W., 215 . The judgment appealed from was affirmed.”

The United States supreme court reversed the decision of the supreme court of Nebraska, and in the course of the opinion said:

“Against his objection defendant could not be sued on plaintiff’s claim in the Nebraska court." Alabama, etc., Ry. Co. v. Journey, supra. This court is not bound by the decision of the State court that defendant waived his federal right under the act and the orders of the director general, and it may determine for itself whether he sufficiently asserted and insisted upon that right. Davis v. Wechsler, 263 U. S., 22, 24 , 44 S. Ct., 13 , 68 L. Ed., —; Railroad Commission v. Eastern Texas R. R., 264 U. S., 79, 86 , 44 S. Ct, 247 , 68 L. Ed., —; Georgia Ry. Co. v. Decatur, 262 U. S., 432, 438 , 43 S. Ct. 613 , 67 L. Ed., 1065 ; Creswill v. Knights of Pythias, 225 U. S., 246, 261 , 32 S. Ct., 822 , 56 L. Ed., 1074 .

“Defendant’s special appearance and motion did not amount to an objection to the jurisdiction over the sub *342 ject-matter; that is, it did not raise the question whether, considering the nature of the cause of action asserted and the relief prayed by plainitff, the court had power to adjudicate concerning the subject-matter of the class of cases to which plaintiff’s claim belonged. Cooper v. Reynolds, 10 Wall., 308, 316 , 19 L. Ed., 931 ; Reynolds v. Stockton, 140 U. S., 254, 268 , 11 S. Ct. 773 , 35 L. Ed., 464 . The stated purpose „of the special appearance was broader than the grounds alleged, and, in so far as it related to the subject-matter, was not carried into effect. There was nothing in the moving papers to suggest that the Nebraska court had no jurisdiction to try and determine actions, founded on negligence, to recover damages -for personal injuries suffered by railway employees while engaged in the performance of their work. Undoubtedly, the district court of Douglas county would have had jurisdictions if the accident happened in that county or district, or if plaintiff resided there at the time he was injured. The General Orders on which defendant’s motion rested did not relate to jurisdiction of the subject-matter; and the supreme court of Nebraska so held.”

As will be observed, it is expressly stated that the General Orders in question “did not relate to jurisdiction of the subject-matter.”

This (as it seems to us) is, in substance, what the court of civil appeals held, and what this court held in its original opinion. These orders confer a right or privilege which may be waived. In other words, they relate to venue, as opposed to jurisdiction. Davis v. O’Hara does not decide that, if the director general *343 had failed to assert his immunity, the judgment of the Nebraska court would have been void.

2. The court’s attention is also challenged to the case of Moran v. Weinberger (April 5, 1924), 149 Tenn., 537 , 260 S. W., 966 , which had not appeared in the official reports at the time the instant case was decided.

In view of the strong and earnest petition to rehear, we have carefully examined that case, but find nothing in its decision which conflicts with the decision herein.

In Moran v. Weinberger the plaintiff sued the defendant for personal injuries before a justice of the peace, asking damages within the statutory limit of $500, and recovered a judgment for $250. Defendant appealed to the circuit court, where the case remained for some time; no trial being had on account of various continuances. Plaintiff then took a nonsuit, and sued in the circuit court for $10,000 damages. This was some two years after the date of the injury. To this second suit defendant pleaded the one year statute of limitations applicable to suits for personal injuries.

It was held by this court, on appeal, that the bar of the statute was not saved by section 4446 of Shannon’s Code, and plaintiff’s possible recovery in the second suit was limited to $500, the amount of the magistrate’s jurisdiction in the first suit:

It is evident, we think, that the decision in that case cannot control the decision in the case, at bar/ There was.no question of jurisdiction involved. Each court had jurisdiction of the suit brought therein.

Whatever was said about the cases of Sweet v. Electroc Co., 97 Tenn., 252 , 36 S. W., 1090 ; Swift v. Warehouse Co., 128 Tenn., 82 , 158 S. W., 480 , and Smith v. *344 McNeal, 109 U. S., 426 , 3 S. Ct., 319 , 27 L. Ed., 986 , was necessarily said arguendo.

As stated in Moran v. Weinberger, the case of Smith v. McNeal, supra, decides “that a dismissal . . . for want of jurisdiction is upon a g’round not concluding the right of action,” although it is then pointed out (page 549 [ 260 S. W., 969 ]) that plaintiff’s suit in that case “was not dismissed ‘for any inherent want of jurisdiction in the court in which it was brought.’ ”

The opinion also emphasizes the intimation of the United States supreme court in Smith v. McNeal “that this saving statute would not be available to one who had negligently first brought his action in a court without jurisdiction of his demand.”

The court then applies this intimation to the case under consideration by saying at page 549 ( 260 S. W., 969 ):

“It would seem to follow that, where one has advisedly and deliberately first chosen a forum lacking jurisdiction, he is precluded.”

The thought here is that, if the plaintiff had brought a $10,000 personal injury suit before a justice of the peace, in the first instance, he could not afterwards invoke the statute.

This reasoning is in line with the opinion in the present case, where it was pointed out that there was no gross negligence on the part of the plaintiff below in choosing a forum on the theory that the Greneral Orders in question were void. Learned courts, State and federal, were then differing in their views on this question, as shown in the following excerpt from the opinion in Davis v. O’Hara, supra:

*345 “General Orders Nos. 18 and 18A were held invalid in Friesen v. Chi., R. I. & P. Ry. Co. ([U. S.], D. C. Neb. Dec., 27, 1918) 254 F., 875 ; Haubert v. Baltimore & O. R. Co. ([U. S.], D. C. Ohio, Sept. 3, 1919) 259 F., 361 ; El Paso & S. W. R. Co. v. Lovick (Feb. 11, 1920) 110 Tex., 244 , 218 S. W., 489 , affirming (Tex. Civ. App., March 6, 1919) 210 S. W., 283 , and overruling Rhodes v. Tatum (Tex. Civ. App., Oct. 16, 1918) 206 S. W., 114 . See Benjamin Moore & Co. v. Atchison, etc., Ry. Co. ([N. Y. S. C.], January, 1919) 106 Misc. Rep., 58 , 174 N. Y. S., 60. And they were held valid in Wainwright v. Pennsylvania R. Co. ([U. S.], D. C. Mo., Oct. 22, 1918) 253 F., 459 ; Cooker v. New York, O. & W. Ry. Co. ([U. S.], D. C. N. Y., June 15, 1918) 253 F., 676 ; Johnson v. McAdoo ([U. S.], D. C. La., May 8, 1919) 257 F., 757 ; Russ v. New York Cent. R. Co. ([N. Y.], Co. Ct., Feb. 20, 1920) 180 N. Y. S., 618. See Russ v. New York Cent. R. Co. ([N. Y. S. C.], Dec. 29, 1919) 190 App. Div., 37 , 179 N. Y. S., 310.”

In discussing (arguendo) the case of Swift v. Warehouse Co., it was not intended to say in Moran v. Weinberger that the Swift Case was merely decided on the theory that, “when chancery. dismisses a bill because the complaint made by it is relievable at law, it will suffer the act of limitations to be pleaded during the pendency of the suit in the court, and will direct that the act be not opposed to the' claim at law for such time.”

It is plain that the above quotation announces an equitable principle which is wholly independent of any statute; and, if the case had been solely decided on this ground, why did the court cite Shannon’s Code, section 4446, and Smith v. McNeal, supra, in ruling on the point?

*346 The case of Sweet v. Electric Co., 97 Tenn., 252 , 36 S. W., 1090 , does not show the facts with regard to the first suit. The plaintiff may have been grossly negligent in originally choosing the forum, for all that appears, and the case may have been correctly decided on its own facts.

But we do not consider that case authority for the proposition that however prudently a plaintiff may have acted in choosing his original forum, and however technical may have been the grounds for dismissal, a dismissal for want of jurisdiction, under any circumstances whatsoever, precludes plaintiff from relying upon the saving statute. Such a proposition is too far reaching to receive the approval of this court.

While we are much impressed with the. clear and able petition to rehear, we find ourselves, after the most careful consideration, unable to change or to recede from the views expressed in the original opinion, and the petition to rehear is accordingly denied.