Burnett v. Layman

• Decision Date: 28 November 1914
• Citation: 171 S.W. 76,130 Tenn. 423
• Parties: BURNETT v. LAYMAN.
• Court: Tennessee Supreme Court

171 S.W. 76

130 Tenn. 423

BURNETT v. LAYMAN.

Supreme Court of Tennessee.

November 28, 1914

Certiorari to Court of Civil Appeals.

Action by Marion P. Burnett against R. B. Layman. A judgment for defendant was affirmed by the Court of Civil Appeals, and Manda Burnett, widow and next of kin of the deceased plaintiff, petitions for certiorari. Petition dismissed, and defendant's petition for a reconsideration also dismissed.

W. F Black, of Knoxville, for plaintiff.

Frank Sanders, of Knoxville, for defendant.

FAW, J.

On a former day of the present term of this court the petition of Manda Burnett, as "widow and next of kin" of Marion P. Burnett, the plaintiff below, for a writ of certiorari to the Court of Civil Appeals, was dismissed.

This suit was originally brought in the circuit court of Knox county to recover damages from R. B. Layman, a physician, for alleged malpractice. The circuit court directed a verdict for defendant, and entered judgment in his favor, and the Court of Civil Appeals affirmed that judgment. Subsequent to the entry of judgment in the Court of Civil Appeals, but during the same term of that court, the death of the plaintiff Marion P. Burnett, was suggested and admitted, and the cause was revived in the name of Manda Burnett, "as widow and next of kin" of the deceased plaintiff.

We held, at the time the dismissal of the petition was ordered that we were precluded from a consideration of the merits of the case, because Manda Burnett, as widow and next of kin of the deceased, had no such interest in the subject-matter of the litigation as would entitle her to prosecute this suit.

It was said in the memorandum opinion filed at that time that the suit did not abate upon the death of Marion P. Burnett, the plaintiff below, but survived by virtue of the provisions of section 2846 of the Code (Shan. Code, § 4569). We also said that the statutes governing an action in case of death by wrongful act (Shan. Code, §§ 4025-4029) have no application to the present case, but that it falls within the terms of Shan. Code, § 4579, which provides that "suit abated by the death of either party, may be revived by or against the heir, personal representative, guardian, or assign, as the case may be, who may be legally entitled to the decedent's place in the subject-matter of the litigation," and that the personal representative is in the present case the successor in interest of the deceased plaintiff, or, in other words, the one "legally entitled to the decedent's place in the subject-matter of the litigation," and the suit should therefore, have been revived in his name. And in support of our construction of Code, § 2846 (Shan. Code,§ 4569), we cited Daniel v. Coal Co., 105 Tenn. 470, 58 S.W. 859.

Since our former opinion was handed down, a petition has been filed on behalf of R. B. Layman, styled "petition of defendant for reconsideration of the opinion in this case," in which the petitioner therein does not complain of the judgment of this court dismissing the petition for certiorari filed by Manda Burnett, but asks for a reconsideration of that part of the opinion wherein it was held that the action brought by the plaintiff below did not die with him, but was subject to revivor in the name of the personal representative of said decedent.

It is insisted by petitioner Layman that the opinion of this court in the case of Posey v. Posey, 113 Tenn. 588, 83 S.W. 1, overrules the earlier case of Daniel v. Coal Co., supra, on the point that, by virtue of Shan. Code, § 4569, an action for personal injuries commenced in the lifetime of the injured person may, in the event of his death pending the suit, be revived in the name of the personal representative of such deceased plaintiff, though his death may have resulted from a cause other than the wrongful act of the defendant to the suit.

The case of Posey v. Posey, supra, was not called to our attention and was not considered in connection with our former opinion in this case. The case of Daniel v. Coal Co. supra, is not cited in the opinion in Posey v. Posey, and there is no indication in the latter opinion of a purpose to overrule or modify the opinion in Daniel v. Coal Co., in any respect. The case of Posey v. Posey was an inquisition of lunacy. In the county court the jury found that defendant was a person of unsound mind, and judgment was entered accordingly. The defendant thereupon appealed to the circuit court, where the judgment of the county court was reversed, and the petitioner appealed to this court. Pending the appeal to this court, the alleged lunatic died, and his death was suggested in this court, and a motion made here to revive the case against the administrator of the estate of the deceased. The administrator resisted this motion, and entered a counter motion that the case be abated, on the ground that the cause of action did not survive the death of the defendant. It is stated...