Carter v. Redmond
| Citation | 218 S.W. 217,142 Tenn. 258 |
| Parties | CARTER v. REDMOND. |
| Decision Date | 07 February 1920 |
| Court | Supreme Court of Tennessee |
Error to Circuit Court, Montgomery County; W. L. Cook, Judge.
Action by Mrs. Mary S. Redmond, administratrix, against V. P Carter. There was a judgment for plaintiff, and defendant brings error. Reversed and remanded.
This suit grows out of an automobile accident. It was brought originally by James Redmond to recover damages which he sustained by reason of being run down by an automobile belonging to V. P. Carter. Redmond died, and the suit was revived in the name of his wife as administratrix. There was a verdict and judgment for plaintiff below, from which Carter has appealed in error. The constitutionality of a statute is involved, and the Court of Civil Appeals, to which the appeal in error had been taken, transferred the cause to this court.
James Redmond was a section foreman employed by the Louisville & Nashville Railroad Company, and with his gang was working on the railroad at a point where it is crossed by one of the public roads of Montgomery county. While so engaged he received the injuries for which suit was brought from an automobile owned by the plaintiff in error, in which plaintiff in error and his daughter were riding at the time.
It is said that there is no evidence in the record tending to show that the deceased died from the injuries sustained in this accident. It is likewise urged that no negligence, either statutory or common-law negligence, can be ascribed to plaintiff in error on the facts of this case.
Inasmuch as the case must be reversed on another ground, it would not be desirable to go into the facts. We may observe, however that in our opinion there is evidence from which it may be concluded that Redmond died as result of the injuries received as above, and there is evidence that the automobile was being operated in excess of the statutory speed limit, and there is evidence that the machine was being negligently operated applying common-law rules.
As heretofore stated, this suit was originally brought by James Redmond. On the day after the suit was brought Redmond died. Mrs. Mary S. Redmond then appeared in court, produced letters of administration, and had the suit revived in her name as such administratrix, to stand revived "in the same plight and condition as before the death of plaintiff." Later Mrs. Redmond, as administratrix, filed her declaration, in which she claimed damages, not only such as were suffered by the deceased--pain, suffering, loss of time, doctor's bills, etc.--but claimed compensation under the statute for herself and children for the wrongful death of the deceased.
It is insisted that inasmuch as the suit was originally brought merely to recover the damages sustained by James Redmond, and that inasmuch as it was revived to stand in the same plight and condition, Mrs. Redmond, as administratrix, cannot recover in this particular suit the damages sustained by the statutory beneficiaries consequent to the wrongful killing of the deceased.
This question cannot be made upon this record. Such an argument suggests a variance between the writ and the declaration. The declaration clearly averred and sought recovery for damages for the wrongful killing of James Redmond, as well as damages sustained by him, and to this declaration the defendant below interposed pleas in bar, to wit, the general issue and a plea of contributory negligence.
Granting the argument of plaintiff in error that the order of revivor had the effect of limiting recovery to the damages sought in the original writ, then the suit stood as if brought by Mrs. Redmond, as administratrix, to recover for the injuries inflicted upon the deceased. The declaration, however, went beyond this, as we have seen, without objection from the defendant below.
A variance between pleading and process is technical in character, and defendant must avail himself promptly of any...
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