94 Tenn. 388 | Tenn. | 1895
This action was commenced in the Circuit Court of Davidson County by George Bean, administrator of Frank Murray, deceased,
It appears from the record that, at the loans in quo of the accident, the defendant company, had constructed two parallel tracks. The deceased, when first seen, was walking on the main line towards Nashville, hut, as a train approached him from the city, he crossed over, and, continuing his journey, walked on the cross-ties of the Southeastern track, Avhen he was overtaken and killed by a freight train, which was likewise moving in the direction of Nashville. The claim of plaintiff is that the deceased was in full view of engineer and fireman for a half mile, and was actually seen by the engineer, but that, in consequence of the negligence of the engineer and fireman in failing to comply with the statutory precautions, plaintiff’s intestate lost his life.
The company pleaded the general issue, and also a special plea of accord and satisfaction, in which it was averred that, prior to the institution of this suit by the administrator, the widow of said intestate, in consideration of one hundred dollars, to her paid by defendant, and the further promise by defendant to pay the expense of the burial and funeral of the said Frank Murray (which account, amounting to $118, has since been paid), compromised and settled any and all claims against defendant growing-out of said killing.
The plaintiff filed a replication to this plea, aver
Defendant company joined issue on said replication. The jury, under the charge of the Court, returned a verdict in favor of defendant. Motion for a new trial having been overruled, plaintiff appealed and has assigned numerous errors, especially upon the charge of the Court. In the view we have taken of the case, these assignments have now become unimportant, and will not be considered. The determinative question in the case arises upon the motion of defendant’s counsel to abate the suit on account of the death of Mary Ann Murray, which has occurred since the appeal to this Court. The present suit was instituted by the administrator, and
“3130. 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 to his personal representative, for the benefit of his widow, or next of kin, free from the claims of creditors.
“3131. The action may be instituted by the per*392 sonal representative of the deceased, but, if he decline it, the widow or the children of the deceased may, without, the consent of the representative, use his name in bringing and prosecuting the suit, on giving bond and security for costs,- or in the form prescribed for paupers. The personal representative shall not, in such case, be responsible for costs, unless he sign his name to the prosecution bond.
“3132. The action may also be instituted by the widow in her own name, or, if there be no widow, by the children. ’ ’
It was held by this. Court, in Webb, Adm'r, v. Railway Company, 88 Tenn., 128, that, under these statutes, the administrator is in fact a nominal plaintiff, the recovery being, for the benefit of the widow and children; and, we may add, if there be no wife or children, the suit is commenced by the administrator for the benefit of the next of kin.
Mr. Wood, in his work on Railroads, Vol. 3, Sec. 410, in . commenting upon similar legislation, says: “As the remedy exists, and is created, only by statute, it follows that it can 'only be pursued in the mode and under the conditions specified therein, and for the benefit of the persons named therein. * * * If the damages recovered are for the benefit of the husband, widow, parent, or next of kin, the' declaration must allege the fact, and the existence of such beneficiary, for, if no beneficiary survives the deceased, no recovery can be had.” Sec. 413; Schwarz v. Judd, 28 Minn., 371.
Still another phase of this statute arose in the case of Loague, Adm'r, v. Railroad, 91 Tenn., 458. That suit was brought by the widow of Jno. W. Curry against the railroad company for the negligent killing of her husband. Pending the suit, the widow died, and John Loague, her administrator, moved the Court to permit him to revive the suit in his name. The motion was disallowed by the Circuit Court, and its action was affirmed by this Court. Judge Lur-ton, delivering the opinion of the Court in that case, said, viz.: “It would seem to follow, therefore, that these statutory damages can only be recovered in the mode prescribed by the statute. The widow may prosecute the suit, but, if there be no widow,
These cases illustrate the strict construction given this statute by our predecessors, and very properly limit the mode of procedure, as well as the beneficiaries, to the four corners of the statute. The precise question, however, we are now called on to adjudicate did not arise in those cases, or in any other reported case of which we are apprised. The present suit was properly brought in the name of the administrator of Frank Murray,. deceased, and, there being no children, the wife was designated in the declaration as the statutory beneficiary. The wife, at the date of the killing of deceased, when the cause of action accrued, was the sole beneficiary, and the right of action was not extinguished by the death, but passed to the widow. It is true the deceased left surviving him a father, brothers and sisters, nieces -and nephews; but the right of action passed solely to the widow, or to
The suit having abated, the same is dismissed, with costs.