Greenlee v. E. T., Va. & Ga. R. R.

73 Tenn. 418 | Tenn. | 1880

Turney, J.,

delivered the opinion of the court.

Wm. A. Greenlee was killed on the road of the defendant by its engine and train. Mary Greenlee, widow, instituted suit for damages.

On compromise, the company paid her $1,500, and also paid the costs, in consideration of which she agreed to dismiss her suit.

The motion to dismiss was resisted by some of the children of deceased, who asked to be permitted to prosecute, insisting the suit was instituted for the joint benefit of the widow and themselves. The court refused the application, and dismissed the suit upon the terms of the compromise, to which the children excepted and appealed to this court.

The question is, can the widow, under the statutes authorizing the suit, dismiss it against or without the consent of the children?

The act of 1871, ch. 78, sec. 1, provides: “That sec. 2291 of the Code of Tennessee be so amended as to provide that the right of action which a person who dies from injuries received from another, or whose death is caused by the wrongful act, omission or killing by another, would have had against the wrongdoer in case death had not ensued, shall not abate or be extinguished by his death, but shall pass to his widow, and in case there is no widow, to his children, or his personal representative for the benefit of his widow or next of kin, free from the claims of his creditors.”

Sec. 2: “That section 2292 be so amended as to allow the widow, or if there be no widow, the children, to prosecute suit, and that this remedy is provided in addition to that now allowed by law in the class of cases provided for by said section and sec. 2291 of the Code, which this act is intended to amend.”

It is true, as argued, that the suit is for the benefit of the widow and children. It is also true, the widow alone has the right to sue in the first instance. The children have the right only when there is no widow. The widow may sue or not, at her- option. We have holden that if she fail to sue for the period of twelve months, the suit is barred even as to minors. Having, then, the right to sue, to be exercised at her own election, it follows, as a necessary incident to that right, that she may control the suit by compromise, abandonment, prosecution or dismissal. The amendments do not destroy or take away the interests of the children in the recovery, or, in this instance, the compromise.

The judgment must be affirmed.