Bean v. Louisville & N.R. Co.

• Decision Date: 07 February 1895
• Citation: 29 S.W. 370,94 Tenn. 388
• Parties: BEAN v. LOUISVILLE & N. R. CO.
• Court: Tennessee Supreme Court

29 S.W. 370

94 Tenn. 388

BEAN v. LOUISVILLE & N. R. CO.

Supreme Court of Tennessee.

February 7, 1895

Appeal from circuit court, Davidson county; N. D. Malone, Special Judge.

Action by George Bean, administrator, against the Louisville & Nashville Railroad Company, to recover, for the benefit of the widow of plaintiff's intestate, damages for negligent killing of said intestate. From a judgment for defendant plaintiff appealed. Pending appeal the widow died, and the action was abated. Action abated.

Steger Washington & Jackson, for appellant.

Baxter Smith, for appellee.

McALISTER J.

This action was commenced in the circuit court of Davidson county by George Bean, administrator of Frank Murray, deceased against the Louisville & Nashville Railroad Company, to recover damages for the negligent killing of plaintiff's intestate. It appears from the record that at the locus 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; but as a train approached him, from the city, he crossed over, and, continuing his journey, walked on the cross-ties of the southeastern track, when 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 the 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 $100, 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, averring that said Mary Ann Murray was insane at the time of the alleged accord and satisfaction, and at the time of the payment of said $100, and at the time of the payment of the said burial and funeral expenses of the said Frank Murray, and that plaintiff now tenders and pays into the hands of the clerk said $100 and the amount of said burial and funeral expenses. Plaintiff also averred that said accord and satisfaction was obtained by fraudulent constraint upon said Mary Ann Murray; that said Mary Ann Murray did not know the contents of said release at the time her signature to it was obtained, and that said defendant's agents fraudulently represented to her that the company was not liable for the killing of her husband, and that the said money was hand ed her as a gift or gratuity. 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 the widow of said intestate, to wit, the said Mary Ann Murray, was named as the beneficiary in the plaintiff's declaration. The deceased left surviving him no children, and his father, Benjamin Murray, is his next of kin. The question now presented-probably for the first time in this state-is whether, upon the death of the widow, the suit abates, or can the administrator still prosecute it for the benefit of the father, who is the next of kin of plaintiff's intestate? The question, when laid in a narrow compass, and reduced to its ultimate analysis, is whether the right of action survives, and is limited to those entitled to the recovery at the death of the deceased, or whether, upon the death of those then entitled, the cause of action survives, and revests in the next of kin in the line of distribution. The settlement of this question depends upon a proper construction of the following sections of the Code (Mill. & V.), to wit:

"Sec. 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.

"Sec. 3131. The action may be instituted by the personal representative of the deceased, but if he

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