133 Tenn. 19 | Tenn. | 1915
delivered the opinion of the Court.
In the early part of. the year 1915, plaintiff’s husband being engaged in the service of defendant, received at Bridgeport, Alabama, an injury from which he died eight hours later, in Chattanooga, Tennessee, to which place he had been at once removed, on the happening of the injury. The deceased was a resident of the State of Alabama at the time he was hurt. A few days after his death plaintiff, his widow, appeared before the county court of Hamilton county, Tennessee, and applied for and obtained letters of administration on his estate. She then brought an action against the defendant to recover damages for the alleged wrongful death. She filed her declaration containing several counts, one of these under the federal Employers’ Liability Act, and one under the Alabama statute. This latter statute is. substantially like our own on the same subject, but confers the right of action only on the administrator of the deceased. After the filing of the declaration the defendant moved the court to compel the plaintiff to elect between the right of action claimed under the federal Employers’ Liability Act and that claimed under the Alabama statute. Before this motion was acted on, however, the defendant filed a petition in the county court of Hamilton county, praying that the letters of administration be recalled, on the ground that the decedent
The defendant is a railroad chartered in Tennessee, and runs from Nashville, in Davidson county, Tennessee, to Chattanooga, in Hamilton county, Tennessee, but for a short distance passes through a part of Alabama, and in so doing through the town of Bridgeport, in that State. The defendant had at the time, and now has, a depot and offices in Chattanooga.
On these facts the question arises which we are to decide.
Is there any fundamental difference in the two cases'? We think not. Such a right of action is transitory, and may be enforced against the defendant wherever he may be found. This must be understood, of course, with the qualification that such action is not contrary to the policy of the forum, and with the further qualification that the right of action is that allowed by the State wherein the injury occurred, save only such cases as are controlled by the federal Employers’ Liability Act or other federal act. Subject to these conditions, such rights of action are permitted
It is generally necessary, as a preliminary to the bringing of such actions, that an administrator be appointed in the State where the suit is to be brought; that is, the statutes creating the liability generally provide for its enforcement by an administrator. At this point the question arises whether it is essential that any property be found in such State, other than the right of action for the wrongful death, as a basis for the appointment of an administrator. In some cases where it is assumed, if not held, that the finding of such other property is essential, it has been held that the finding of an insignificant amount of property would suffice, $3 or $4, old clothing, or some other' trifle. This fact shows the artificial and highly technical and wholly unsubstantial character of such a rule. And it is unreasonable and unnecessary. As pointed out in Sharp v. Railway Co., supra, and other cases, the right of action itself is property; and it is transitory, and exists wherever the defendant may be found, and an administrator may be there appointed to'collect it as in the case of debt. As shown in Sharp’s Case,' it is not material that such right of action is not available for the payment of the debts of the deceased.
Furthermore, such a rule would make it impossible, in very many Instances, to enforce the federal Employers ’ Liability Act. That act can be put in motion only by an- administrator. Suits must be brought. There is no provision in the federal laws for the appointment of administrators. These must be appointed by the State tribunals. That act is as much a law of each State as if enacted by the legislatures of all the States, and it is as much the duty of the State courts to enforce it. Mondou v. New York, N. H. & H. R. Co., 223 U. S., 1, 32 Sup. Ct., 169, 56 L. Ed., 327, 38 L. R. A. (N. S.), 44. In the cases to which it applies that law is necessarily supreme, being a law of the federal gov
Now, let us suppose a case in which it appears a man has been killed under such circumstances as to clothe his widow, and children or next of kin with the right to a recovery under that act, in a suit to be brought by the administrator of the decedent. The decedent left no other property except this right of action. Can any one suppose that a county court or probate court would be permitted to nullify this act of Congress by refusing to appoint an administrator on the ground that the decedent owned no other property except the right of action given him or his estate by the Congress? Take another case. In the same probate court an application for administration is made on the estate of a man who left $5 and the right of action referred to. Administration is’granted on his estate, and denied on the other. Can the courts sanction such discrimination?
Or let us take this Alabama act. It likewise can be made effective only through suit by an administrator. Ought the right of action thereby given, which is equally property, as in the case of the other, and also transitory, and litigable wherever the defendant may be found — ought this right to be destroyed because the decedent was so unfortunate as to own no other property? Will it be said that the right could be enforced
The foregoing questions, with the inevitable answers they suggest, show the unsoundness of the view that administration can be denied solely because the decedent left no other property than his right of action against the wrongdoer.
And so are the authorities. Brown v. Railroad Co., 97 Ky., 228, 30 S. W., 639; Findlay v. Railroad Co., 106 Mich., 700, 64 N. W., 732; Hutchins v. Railroad Co., 44 Minn., 5, 46 N. W., 79; Reiter-Connoly Mfg. Co. v. Hamlin, 144 Ala., 192, 219, 40 South., 280; Washington Asphalt Block & Tile Co. v. Mackey, 15 App. D. C., 410; Western Union Telegraph Co. v. Lipscomb, 22 App. D. C., 104; Appeal of Jenkins, 25 Ind. App., 532, 58 N. E., 560, 81 Am. St. Rep., 114; Missouri Pac. Railroad Co. v. Bradley, 51 Neb., 596, 71 N. W., 283; Boston, etc., R. Co. v. Hurd, 108 Fed., 116, 47 C. C. A., 615, 56 L. R. A., 193; Missouri Pac. R. Co. v. Lewis, 24 Neb., 848, 40 N. W., 401, 2 L. R. A., 67; Re Mayo, 60 S. C., 401, 38 S. E., 634, 54 L. R. A., 660; Jordan v. Chicago, etc., R. Co., 125 Wis., 581, 104 N. W., 803, 1
That an action of the kind we have under examination is transitory and may be brought in any jurisdiction, if the statute giving the action is not inconsistent with the statutes or public policy of the forum, is shown not only by our own cases, cited in Sharp v. Railroad, supra, but the rule is quite general. Dennick v. Railroad Co., 103 U. S., 11, 26 L. Ed., 439; Stewart v. Baltimore & Ohio R. Co., 168 U. S., 445, 18 Sup. Ct., 105, 42 L. Ed., 537. And see the note appended to Dougherty v. American McKenna Process Co., Ann. Cas., 1913D, 570, 571, and the cases there cited.
In'the case of Re Lowham’s Estate, supra, it appeared the death occurred in Wyoming. The administrator was appointed' in Utah, and suit brought there; no other asset or property of the estate appearing except the right of action'for the wrongful death. In Fickeisen v. Wheeling Electrical Company, supra, the facts, so far as they concern the present question, were that the intestate was killed in the city of Bridgeport, in the State of Ohio, by a current of electricity from the wires of the Bridgeport Electrical Company.
“As the defendant company had its habitat in Ohio county (West Virginia), we think the demand against it was property of the estate of the deceased, so as to confer such jurisdiction” — citing Richards v. Riverside Iron Works, supra.
In Southern Pacific Co. v. De Valle Da Costa, supra, decided by the circuit court of appeals of the first circuit, it appeared that the intestate was at the time of his death a servant of the defendant, a Kentucky corporation; that a statute of that State gave a right of action for wrongful death to be brought by an administrator; that the intestate was killed on the high seas in a vessel belonging to the defendant by negligence of his employer while in the service of the latter. It appeared that administration was taken out in Massachusetts, where the defendant was found; that the estate of the intestate had no other property than the right of action for the wrongful death; that a plea in abatement was filed denying the validity of the grant
“That unless the right of action against the defendant is assets in this jurisdiction, the deceased having no other property here, and not having been at the time of his death a resident of Massachusetts, the plea in abatement is to be sustained; but, if such right of action is assets sufficient to give jurisdiction to the probate court to appoint an administrator here, the plea in abatement is to be overruled; and the case is submitted to the court for a ruling on the matter. ’ ’
It was held that the administrator was properly appointed in Massachusetts, and the action rightly instituted there. In the course of the opinion the court said:
“If the statute which gives the right provides for a suit by the personal representative, a question arises whether it is a personal representative appointed by the courts of the State wherein death was caused, a personal representative appointed at the decedent’s domicile, or a personal representative appointed in the jurisdiction where the defendant is sued. Though a defendant’s liability may be clear, whatever course may be taken in an attempt to enforce this liability, there arise objections supported by good authority which imperil the substantial rights of those for' whose benefit the liability was imposed. If administration be taken out in the place of the domicile of the deceased, objection is made that only the State which gives the right of action can appoint a legal rep*32 resentative with, authority to enforce that right of action. If a legal representative is appointed in such State, it is objected in the State wherein suit is brought that the authority of an administrator has the territorial limits of the State of his appointment. If suit is brought in the State of defendant’s residence, a twofold objection may be made, that the administrator should have been appointed either at the decedent’s domicile or in the State whose statute creates the right of action. . . . The right to administration is recognized whenever. there are assets within the jurisdiction. Is a death claim assets for the purpose of the appointment of an administrator?
“The enactment of a statute giving an action for death, and requiring that it shall be brought by a personal representative, we think, should be regarded as a conclusive recognition of the right of administration to enforce such a claim. If a statute designates the personal representative of the deceased as the proper plaintiff, to limit the right to cases in which the deceased left assets other than the right of action would introduce an unreasonable and arbitrary distinction. To hold that suit might be brought in the State of Massachusetts for causing death of the deceased if the deceased left property in the State, but that it could not be brought if he had no property, would be to make a distinction in favor of persons who have- estates against persons who have no estates — to deny the remedy to those most in need of it. . . .
*33 “We think, further, that either the court of the State wherein the cause of action accrued or the court of the State wherein the defendant resides should recognize the right of action for wrongful death as a sufficient basis for the grant of letters of administration.”
This case was followed in Rivera v. Atchison, T. & S. F. Ry. Co., supra, in which it appeared that the deceased was killed in New Mexico, and in Gulf, C. & S. F. Ry. Co. v. Beezeley, supra. In both instances the administrator was appointed in Texas, and the action brought under the federal Employers’ Liability Act. The same is true of Eastern Ry. Co. of New Mexico v. Ellis, supra.
In M. P. R. R. Co. v. Lewis, 24 Neb., 848, 40 N. W., 401, 2 L. R. A., 67, it appeared that the deceased was killed in Kansas, the administrator was appointed in Nebraska, and the suit brought in the latter State under the Kansas statute. It was held that the suit was well brought.
In Dennick v. Central R. R. Co., 103 U. S., 11, 26 L. Ed., 439, the facts were that the decedent was killed in a railway accident in New Jersey, the administrator was appointed in New York, and the action brought in the latter State. The New Jersey statute giving the cause of action provided that actions based on it should be brought by ah administrator. It was objected in the case that an administrator could not be appointed in New York and bring suit there. The court held that the right of action was transitory, and the admin
We are referred to the ease of L. & N. R. R. Co. v. Herb, 125 Tenn., 408, 143 S. W., 1138, as an authority in opposition to the,views herein expressed. As pointed out in Sharp v. Railroad, supra, the fundamental misconception in Railroad v. Herb was in the view that nothing could authorize the appointment of an administrator in this State except the existence of technical assets, capable of appropriation to the payment of debts, and specifically in holding that the existence of a claim for wrongful death would not alone justify such appointment. It is clear from the discussion in Sharp v. Railroad, supra, and from the discussion and authorities in the present case, that we must recede from the views entertained in Railroad v. Herb on the point just referred to.
It results that the court of civil appeals committed no error in reversing the trial judge, and in dismissing the proceedings instituted in the county court of Hamilton county to recall the administration previously granted in that court. The judgment of the court of civil appeals will therefore be affirmed.
We observe in the record a motion to compel the plaintiff to elect between the right of action claimed under the federal Employers’ Liability Act, and that claimed under the Alabama statute. In what we have said as to the supremacy of the federal law we are not to be understood as expressing an opinion on this subject, as it does not come before us on the present hear