Brundige v. Nashville, C. & St. L. R. R.

• Decision Date: 24 March 1904
• Citation: 81 S.W. 1248
• Parties: BRUNDIGE et ux. v. NASHVILLE, C. & ST. L. R. R.<SMALL><SUP>*</SUP></SMALL>
• Court: Tennessee Supreme Court

Page 1248

81 S.W. 1248

BRUNDIGE et ux. v. NASHVILLE, C. & ST. L. R. R.^*

Supreme Court of Tennessee.

March 24, 1904.

Appeal from Circuit Court, Franklin County; M. M. Allison, Judge.

Action by W. H. Brundige and wife against the Nashville, Chattanooga & St. Louis Railroad. From a judgment for defendant, plaintiffs appeal. Reversed.

Estill & Littleton, for appellants. Claude Waller and Lynch & Lynch, for appellee.

WILKES, J.

This is an action for personal injuries to Mrs. Brundige, the wife of W. H. Brundige, while a passenger upon defendant's train, in a collision with another train.

To the declaration, which was in the usual form, the defendant pleaded not guilty and accord and satisfaction. The plaintiff replied to the two pleas, taking issue upon the plea of not guilty, and to the plea of accord and satisfaction plaintiff pleaded coverture, and tendered back the $50 which had been paid to her by the road in settlement of her claim for damages, and paid the same into court, alleging also that at the time she signed the paper writing set out in the plea of accord and satisfaction she was suffering with profound shock and nervous prostration and incapable of making contracts; that at the time of the alleged settlement plaintiff was under the impression that she was but slightly injured, but after making the settlement her condition grew worse, and she became permanently afflicted with a dangerous and troublesome female disease; and that the amount paid her was inadequate for her injuries. In this replication she tendered back the amount that had been paid her, and paid the same into court. The defendant demurred to these replications — to the first, setting up her coverture, (1) that the release showed that her husband joined with her in the release and settlement, and she received the amount with her husband's consent; and (2) because a court of law has no jurisdiction to annul and set aside a contract of accord and satisfaction. To the second replication two grounds of demurrer were assigned: (1) Because there were no facts set out in the replication which would authorize the court to hold the plaintiff Mrs. Brundige incapable of making a contract; and (2) because a court of law has no jurisdiction to set aside or annul a contract on the ground set forth in the replication. The same two causes of demurrer were assigned to the third replication.

The demurrers were sustained, and the plaintiff's suit was dismissed, and she has appealed.

The first question presented is whether the contract of accord and satisfaction made by Mrs. Brundige was void because of her coverture. The suit was brought in the name of the wife, and for damages caused to her. The husband was joined merely for conformity, and claimed no right in the recovery, and the suit was not for damages caused to him for loss of his wife's services. The recovery, if any had been made, would have been in the name and for the use of Mrs. Brundige, and would have been her separate estate, and would not have been subject to the control and marital rights of the husband. As...