Nashville v. Foster

• Decision Date: 31 December 1882
• Citation: 78 Tenn. 351
• Parties: The Nashville, Chattanooga & St. Louis Railway v. John L. Foster, Adm'r of Chas. G. Turner, deceased.
• Court: Tennessee Supreme Court

78 Tenn. 351

The Nashville, Chattanooga & St. Louis Railway

v.John L. Foster, Adm'r of Chas. G. Turner, deceased.

Supreme Court of Tennessee.

December Term, 1882.

FROM DAVIDSON.

Appeal in error from the Circuit Court of Davidson County. N. BAXTER, J.

EAST & FOGG for Railroad Company.

W. G. BRIEN and M. M. BRIEN, Jr., for Foster.

COOKE, Sp. J., delivered the opinion of the Court.

This was an action instituted by the administrator of Charles G. Turner, dec'd, against the plaintiff in error, in the law court of Davidson county, seeking to recover damages for the alleged wrongful killing of the plaintiff's intestate, who was at the time of his death employed in the capacity of brakesman upon a freight train of the defendant company. There was a verdict and judgment for the plaintiff below, and a new trial having been refused, the defendant appealed to this court.

A great many errors have been assigned in argument and urged why the cause should be reversed and a new trial granted, which will be noticed in the order in which they arise in the case, so far as may be deemed necessary. The original writ was issued on the 15th of April, 1876, The declaration, filed at the May term, 1876, averred that the defendant was a common carrier by railroad from Nashville, Tenn., to Chattanooga, Tenn., and that the plaintiff's intestate, while in the employ of the defendant as a brakesman upon one of its trains, without any fault or negligence on his part, was killed on the 6th of April, 1876, by the use of unsafe and unsuitable machinery, which was, or ought to have been known to the defendant to be defective, to-wit, a defective and insufficient brake.

The suit was for the use and benefit of the widow and child of the deceased. There was a plea of not guilty, and at the September term, 1877, the cause was submitted to a jury and resulted in a verdict for the plaintiff, which was set aside by the court and a new trial granted, it having developed on the trial that the plaintiff's intestate was killed in the State of Alabama, near Bridgeport--a portion of defendant's road including that place--being in that State. On the 3d day of November, 1877, leave was granted the defendant to file an amended declaration, which was done. By the amended declaration it was averred that plaintiff's intestate was an employee of the defendant, to-wit., a brakesman, and while in the necessary discharge of his duty he, without fault or blame on his part, by the use of unsafe, unsuitable and dangerous machinery, known to the defendant, or which ought to have been known to it, to-wit, a brake, was thrown from the train in running upon defendant's road in the State of Alabama, and killed, with a further averment that under the statute laws of Alabama a right of action accrued to him, and sets out in haec verba a portion of the act of the Legislature of that State passed February 5, 1872, section 2641 of the Code of Alabama, under which he avers a right of action accrued to him.

He also in the same count avers further, that defendant did not use ordinary care and prudence to prevent the loss of his intestate's life; but on the contrary, by associating him with unskillful employees or with unsafe and dangerous machinery, the said intestate, Turner, on the day and year aforesaid, in the State of Alabama, was killed. To this amended declaration defendant pleaded first, not guilty; second, the statute of limitations of one year; and third, that there was no such statute of the State of Alabama as that averred in the amended declaration, and upon which issues were taken, by a similiter to the first and by replications traversing the allegations of the second and third pleas.

At the January term, 1878, the cause was again tried by a jury and a verdict rendered for the plaintiff for ten thousand dollars. The testimony showed that the deceased was killed on the 6th day of April, 1876. The court was requested to instruct the jury that if the deceased was killed more than one year before the time of filing the amended declaration the bar of the statute was complete, and they should find a verdict for the defendant. This, his Honor declined to do, but instructed them that as the amendment to the declaration neither changed the cause of action nor the parties to the suit, the amendment related to the issuance of the original summons, and unless twelve months had elapsed after the deceased was killed before the issuance of the writ, the action was not barred. This instruction is very earnestly insisted upon as being erroneous. We do not think so. The general rule seems to be, that amendments which do not change the parties to the action, introduce a new cause of action, or deprive the opposite party of some defense, relate to the issuance of the summons. In the case of Nance v. Thompson, 1 Sneed, 321, it was held that an amendment introducing new counts in a declaration in ejectment, laying demises in the name of different persons from those contained in the original declaration, the purpose and effect of which was to avoid both the champerty act of 1821, and the statute of limitations, was not to introduce either a new right of action or new parties, in the sense of the rule which forbids such amendment, and that it related back to the institution of the suit; and this, although it was clear, no recovery could have been had upon the original declaration. The authority of this case has not been questioned.

In the case of Crofford v. Cothran & Neal, 2 Sneed, 492, it was held, the same judge, McKinney, delivering the opinion, that where the time of the commencement of the action was important in reference to the statute of limitations, or other matter of defense, the effect of an amendment changing the form of the action must b?? restricted to the time of the amendment. As the law then was, the statute of limitations applied to the form and not to the right of action, as is now the case under the provisions of our Code. Hence, the amendment in that case was, in effect, a new action. In the case of Flatly, adm'r. v. The Memphis & Charleston Railroad Company, 9 Heis., 230, it was held that the doctrine of relation could not be applied so as to affect the rights of others or defeat the defense of the statute of limitations when complete. That was a case where the action was originally brought by a party who had no right to maintain it, and no right of recovery against the defendant, and under the liberal provisions of our statute of jeofails a wholly different party, who had a right of action was, by an amendment, substituted as plaintiff, and in that case it was properly held that the amendment did not relate back to the original writ, and the statute of limitations continued to run up to the time when the amendment was made. Neither of these cases are in conflict with the principle laid down in the case of Nance v. Thompson, above cited, Nor are they applicable to the case now under consideration.

In this cause the action was instituted by the proper party and for the use of the proper persons. The gravamen of the suit was the wrongful killing by the defendant of the plaintiff's intestate. The amendment made no new parties, introduced no new cause of action nor deprived the defendant of any defense, as the plea of not guilty, which was the only defense to the original declaration and was applicable alike to the amended declaration which alleged the same cause of action, but which was defectively stated in the original. The effect of the amended amendment was simply to lay the venue in the State of Alabama and aver the statute of that State, as the law by which the right was to be governed. It was also alleged in the amended declaration that the death of the intestate was caused by the defective machinery, or by the employment by the defendant without proper care, of unskillful agents. And it is insisted that this additional averment constitutes a different cause of action, but this evidently was only a statement of an additional means by which the same wrongful act, the killing of the deceased, was accomplished. There was no error, therefore, in the charge of the court upon this question.

The court was also requested by the defendant to instruct the jury that under the statute of Alabama, set out in the plaintiff's declaration, no action would accrue to the plaintiff for the acts of omission or commission of any of the agents or employees of the defendant. The act set forth in the declaration is entitled an act to prevent homicides and is as follows: “When the death of a person is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action against the latter at any time within two years thereafter, if the former could have maintained an action against the latter for the same act or omission, had it failed to produce death, and may recover such sum as the jury deem just, and the amount so recovered shall be distributed as personal property of an intestate is now distributed, and shall not be subject to the payment of the debts of the deceased; and such right of action shall survive against the personal representative of the person unlawfully causing the death aforesaid:” Code of Ala., sec. 2641.

This section, it is insisted, applies only to the natural persons, and not to...