Atlanta, K. & N. Ry. Co. v. Hooper

• Decision Date: 07 March 1899
• Docket Number: 626.
• Citation: 92 F. 820
• Parties: ATLANTA, K. & N. RY. CO. v. HOOPER.
• Court: U.S. Court of Appeals — Sixth Circuit

92 F. 820

ATLANTA, K. & N. RY. CO. v. HOOPER.

No. 626.

United States Court of Appeals, Sixth Circuit.

March 7, 1899

This is a writ of error to a judgment rendered by the circuit court in favor of the plaintiff, administrator of J. W. Lebow deceased, against the Atlanta, Knoxville & Northern Railway Company.

The declaration was filed in the circuit court of Knox county Tenn., November 15, 1897. In the declaration the plaintiff averred: 'Plaintiff, Sm. M. Hooper, administrator of the estate of J. W. Lebow, deceased, brings this action as such administrator, and for the benefit of Mariah Lebow, the mother of the deceased, against the defendant, the Atlanta Knoxville & Northern Railway Company. ' The declaration states that the injury was received by the deceased on the 25th of January, 1897. The ad damnum clause concludes 'To the great damage of plaintiff, as administrator as aforesaid, to wit, twenty thousand dollars, for which sum, for the benefit and use of said Mariah Lebow, the mother of the deceased, and for the benefit of the estate of the deceased, plaintiff sues, and demands a jury to try the issues that may be herein joined. ' On March 24, 1898, the plaintiff applied to the court for leave, and was granted leave, to amend its declaration upon its face, 'so as to state that the suit is brought by plaintiff, as administrator of the estate of J. W. Lebow, deceased, for the use and benefit of James Madison Lebow, the father of said J. W. Lebow; he, the said J. W. Lebow, having died without bodily issue. ' Thereupon the defendant amended his plea theretofore filed in the case, and as a special plea set up the statute of limitations, and averred that more than one year had elapsed since said cause of action arose and before said amendment was made. By section 3469, Mill. & V. Code, suit for injuries to person must be brought within one year after the cause of action arises. On motion of the plaintiff the court struck the defendant's plea of the statute of limitations from the files, on the ground that said plea was insufficient, in that it relied solely upon the fact that more than one year had elapsed from the date of the accident till the amendment of plaintiff's declaration was allowed, wherein the father of deceased was named as the beneficiary instead of the mother and brothers and sisters, when in law the suit was begun, in the meaning of the statute, at the issuance of the summons, and the amendment aforesaid did not change the parties to or nature of the action then brought, or modify plaintiff's right of recovery, but only assigned a different reason why said right existed. The cause then went to trial, resulting in a verdict for the plaintiff of $2,500, from which the plaintiff subsequently remitted $1,250, and judgment was entered against the defendant for the remainder.

Alexander M. Smith, for plaintiff in error.

W. R. Turner, for defendant in error.

Before TAFT and LURTON, Circuit Judges, and SEVERENS, District Judge.

TAFT Circuit Judge (after stating the facts as above).

The sole question presented upon this record is whether, when an administrator, under the present Code of Tennessee, brings his suit to recover damages for the wrongful death of his intestate, and avers in his petition that he brings the suit for the benefit of one person as the intestate's next of kin, and subsequently substitutes in his declaration for that person the name of another as next of kin, this is a change of the cause of action, such that the statute of limitations runs to the date of the amendment. The sections of the statutes of Tennessee prescribing the mode in which suits for wrongful death...