
    Patterson v. Ridenour et al.
    
    (Knoxville,
    September Term, 1953.)
    Opinion filed December 11, 1953.
    R. P. McCltjke, of Knoxville, for plaintiff.
    FeaNcis W. Headman and Clyde W. Key, both of Knoxville. for defendants.
   Mr. Justice Prewitt

delivered the opinion of the Court.

This is an appeal in error from the judgment of the Circuit Court of Knox County sustaining a demurrer to a special replication upon the ground that it alleged no fact that in any manner voided the finality of the judgment of the court dismissing the former suit as to the defendant, Witherspoon Coal Company. The factual situation is that the plaintiff Patterson filed a former suit against two defendants upon the same cause of action involved in the present case. It was a personal injury suit caused by a collision on a highway and against Ridenour, and the defendant coal company was sought to be held liable under the doctrine of respondeat superior.

There was a trial upon the merits and at the conclusion of plaintiff’s proof, that suit was dismissed as to the coal company upon its motion for a directed verdict. The trial then proceeded against the remaining defendant Ridenour, and at a later stage in the proceeding, the plaintiff took a voluntary nonsuit as to him. He later filed a motion for a new trial as to the coal company, which was overruled by the court. He prayed and was granted an appeal in the nature of a writ of error to the Court of Appeals but failed to perfect that appeal. He now seeks to maintain the present action against the coal company upon the same cause of action that was involved in the former suit.

We have held that after a motion for peremptory instructions has been sustained, and a suit at law has been dismissed as to some one or more of the defendants, it is too late for the plaintiff thereafter to preserve his right to institute another suit under Code Section 8572 against such successful defendant, or defendants, by taking a voluntary nonsuit. Croft v. Johnson, 67 Tenn. 390; Fisher v. Stovall, 85 Tenn. 316, 2 S. W. 567; Boone v. Bush, 91 Tenn. 29, 17 S. W. 792; Barnes v. Noel, 131 Tenn. 126, 174 S. W. 276; Graves v. Union R. Co., 177 Tenn. 699, 152 S. W. (2d) 1026; Bellisomi v. Kenny, 185 Tenn. 551, 206 S. W. (2d) 787.

It results that we find no error in the judgment of the court below and it is affirmed.  