19 S.W. 430 (Tenn. 1892), Lougue v. Memphis & C.R. Co.

• Citation: 19 S.W. 430, 91 Tenn. 458
• Opinion Judge: LURTON, J.
• Party Name: Lougue v. Memphis & C. R. Co.
• Judge Panel: Snodgrass, J., dissenting.
• Case Date: May 03, 1892
• Court: Supreme Court of Tennessee

Page 430

19 S.W. 430 (Tenn. 1892)

91 Tenn. 458

Lougue

v.

Memphis & C. R. Co.

Supreme Court of Tennessee.

May 3, 1892

Appeal from circuit court, Shelby county; L. H. Estes, Judge.

Action by Mattie Curry against the Memphis & Charleston Railroad Company for the negligent killing of plaintiff's husband. Plaintiff died pending the action, and John Lougue, her administrator, moved to revive the action. Motion denied, and he appeals. Affirmed.

Snodgrass, J., dissenting.

LURTON, J.

Mattie Curry, as widow of John W. Curry, brought an action against the defendant railway company for the negligent killing of her husband. Pending this suit, she died; and John Lougue, as her administrator, moved the court to permit him to revive the suit in his name. This motion was resisted by the defendant, and overruled by the court.

At the common law the right of action for personal injury died with the person injured. By our act of 1851-52, carried into the Code as sections 3130, 3131, (Mill. & V.,) the rule of the common law was so far modified as to save the right of action of a person dying by the wrongful act of another, by providing that such right should not abate or be extinguished by death, and that the suit might be instituted by the personal representative of the deceased for the benefit of the widow or next of kin, and by further providing that if he declined to bring such suit the widow and children of the deceased might, without his consent, use his name in bringing such suit. Under that act, it was decided that, although the suit was for the personal benefit of the widow and next of kin, yet they could not sue in their own name, and that the suit would lie only in the name of the personal representative. Hall v. Railroad Co., Thomp. Tenn. Cas. 204; Flatley v. Railroad Co., 9 Heisk. 230; Bledsoe v. Stokes, 1 Baxt. 312. These cases rested upon the terms of the act, saving a right otherwise extinguished. "It is a general principle," said Judge McFarland in Flatley v. Railroad Co., "that where a right is given by statute, and a remedy provided in the same act, the right can be pursued in no other mode." The law thus stood from 1851 until the act of 1871, c. 78, found as section 3132, Mill. & V. Code, by which this right of action might be prosecuted by the widow in her own name, and, if there was no widow, then by the children. The right of action under both acts was...