52 S.W.2d 146 | Tenn. | 1932
However unjustly the rule may sometimes work, it is founded on principles which the courts hold important and justified by experience, and the doctrine is so well established in the decisions of this court that we are unable to find justification for over-riding our previous holdings and establishing by judicial legislation a right of action which the Legislature has failed to provide. *87
It is suggested in argument that Harris v. Trust Co.,
In a very recent memorandum opinion in the case of Elsie Rook,by next friend, v. W.D. Perkins, Administrator, coming from Shelby law and decided November 11, 1927, Mr. Justice SWIGGART considered the right of Perkins, Administrator, to recover damages out of the assets of the estate of Ernest G. Perkins on account of injuries sustained in an automobile accident alleged to have been caused by the negligence of the deceased. The declaration in that case showed that the deceased, Ernest G. Perkins, killed himself in the wreck at the same time that the plaintiff below received injuries. The trial Judge sustained the demurrer, as in this case, and Mr. Justice SWIGGART commented on the opinion of this court in Harris v. Trust Co., supra, distinguishing it. The court also distinguished the case ofKimbrough v. Mitchell, 38 *88 Tenn. (1 Head), 539, calling attention to the restriction put upon certain language used in the Kimbrough case in the later opinion in Cherry v. Hardin, 51 Tenn. (4 Heisk.), 199.
In concluding the opinion in this case of Rook v. Perkins, referring to the leading case of Cherry v. Hardin, supra, Mr. Justice SWIGGART said, "This construction of the statute made in 1871 has not heretofore been departed from by this court, nor has the legislation enacted any subsequent legislation to broaden the statute. We can find no justification for departing from that construction of the statute, so long acquiesced in."
This must be the conclusion in the instant case and judgment of the trial court is affirmed. *89