City of Nashville v. Reese

• Decision Date: 26 September 1917
• Parties: MAYOR AND CITY COUNCIL OF NASHVILLE v. REESE.
• Court: Tennessee Supreme Court

197 S.W. 492

138 Tenn. 471

MAYOR AND CITY COUNCIL OF NASHVILLE v. REESE.

Supreme Court of Tennessee.

September 26, 1917

Certiorari to Court of Civil Appeals.

Suit by Elizabeth Reese against the Mayor and City Council of Nashville, which, after plaintiff's death, was revived in the name of W. G. Reese, as her administrator. From judgment for plaintiff, defendant appealed to the Court of Civil Appeals, which dismissed the case, and plaintiff petitioned for certiorari and supersedeas, which was granted. Affirmed.

Ewing & Garard, of Nashville, for plaintiff in error.

W. H Washington, of Nashville, for defendant in error.

MALONE Special Judge.

On the 28th day of April, 1903, Alcy Reese was driving a wagon along Wharf avenue, in the city of Nashville, Tenn., when one of the wheels struck a hole in the street, and by the ensuing shock he was pitched out of the wagon on the street and sustained certain personal injuries. He brought no suit for these injuries in his lifetime. He died on December 26, 1903.

On January 22, 1904, the present suit was begun by his widow Elizabeth Reese.

It appears that Elizabeth Reese died on January 30, 1905, and that no declaration was ever filed in her lifetime, but a revivor was entered of record on July 15, 1905, in the name of W. G. Reese, as her administrator.

On the same day that the suit was revived, to wit, July 15, 1905 the declaration in this cause was filed by the said W. G Reese in his character of administrator. This declaration alleged the existence of a deep and dangerous hole in the street, the negligence of the defendant corporation in permitting the same to remain for a long time, the consequent fall of deceased from his wagon, etc.

After describing the injuries received by Alcy Reese, the declaration says:

"Said injuries caused concussion of the spine and permanently impaired his constitution and general health and accelerated his death and made him an easy prey to disease, and, combined with the latter, brought about his death, several months afterward."

To this declaration the defendant filed a plea of general issue.

After certain proceedings not material to the present discussion, the cause thereafter came on to be tried, and an order was entered showing a mistrial, the jury failing to agree. The case was tried again some two years later, and a verdict was rendered in favor of plaintiff.

On this trial of the case the defendant, at the close of plaintiff's evidence, and again at the close of all the evidence, interposed a motion for peremptory instruction containing, among others, the following grounds:

"(3) There is no injury shown to have resulted from the injury as alleged.

(4) There is a variation between the declaration and the proof, in that the deceased, Mr. Alcy Reese, did not die or receive his death from the causes alleged.

(5) That there is no cause of action in the present plaintiff; that if there is a cause of action it has been lost by the failure to revive within one year after the death of Mrs. Elizabeth Reese."

Thereafter the plaintiff in error made a motion for a new trial, assigning, among other errors, the grounds of no evidence to support the verdict and the action of the court in failing to peremptorily instruct the jury.

The motion for a new trial having been overruled, the case was appealed by the defendant city to the Court of Civil Appeals, and an opinion was rendered by that court sustaining the motion for peremptory instructions and dismissing the case. The Court of Civil Appeals took the view that, inasmuch as the suit had been brought by Mrs. Elizabeth Reese to recover damages on account of the negligent death of her husband, and she having died, the suit was not maintainable by her administrator under the statutes of this state with respect to death by wrongful action, etc.--that the right of action survived to the children of the deceased husband.

Taking this view of the case, the Court of Civil Appeals did not find it necessary to discuss other questions arising upon the record.

A petition for certiorari and supersedeas was filed by W. G. Reese, administrator, the defendant in error, attacking the decision and opinion of the Court of Civil Appeals. This certiorari has been heretofore granted, and the case has been fully and ably argued and briefed by counsel for the respective parties.

As will be perceived from the foregoing statement, the question for decision is, in general, whether the Court of Civil Appeals was correct in sustaining the motion for peremptory instructions, and dismissing the suit.

Many questions have been discussed in the briefs and arguments of counsel. Much of this discussion relates to survivorship under the statutes concerning death by wrongful act, and the possible effect of Acts of 1903, c. 317, in a case like the present, where the wife has brought the suit for the wrongful killing of her husband, and afterward dies, pending the trial of the case.

Before these very interesting questions can properly be considered, another matter, suggested, but not passed upon, in the opinion of the Court of Civil Appeals, must be determined; that is to say, whether the present case is one falling within the statutes relating to death by wrongful act; in other words, whether the deceased met his death by reason of the wrongful act or omission of the mayor and city council of Nashville.

Section 4025 of Shannon's Compilation provides:

"A 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."

It will be noted that the right of action under consideration arises where the person--

"* * * dies from injuries received from another, or whose death is caused by the wrongful act, omission, or killing by another."

This feature of the act was before this court in the case of Wagner v. Woolsey, Adm'x, 1 Heisk. 235. In that case an action for wrongful killing under the statute (Acts 1851, c. 17) was brought by the widow as administratrix of her deceased husband. The proof introduced tended to show that the deceased left his home, concealed himself for a considerable time in the mountains, was greatly exposed, and endured much suffering, in consequence of the efforts of parties with whom the defendant was shown to be connected.

The proof further showed that the deceased enlisted as a federal soldier, and had, in connection with a party of such soldiers under orders, started through the Confederate lines into Kentucky; that he was captured by a Confederate command with which the defendant had nothing to do; that he was taken to prison, where he afterwards died. The court says that the acts of the defendant did not, in any legal sense, cause anything further to the deceased than his absenting himself from home, and his exposure and suffering as a consequence of such absence.

"That these acts caused his death, no man can affirm, we think, in any legitimate or legal sense, or that his death, under the circumstances of this case, in prison as a captured soldier, gave any cause of action for his death, upon any fair consideration of the statute, to his administrator or widow, or next of kin, we think, cannot be maintained, except by doing violence, not only to the plain language of the law, but to common sense and justice."

The court further says:

"The rule of law is familiar, that seems to have been in many cases of this character entirely ignored, that damages, to be recovered, must be the natural and proximate consequence of the act complained of. Mr. Greenleaf lays down in volume 11 of his work on Evidence, § 268, 'that, in proof of damages, both parties must be confined to the principal transaction complained of and to its attendant circumstances and natural results.' In view of these well-settled principles, and the plain language of the Code, the verdict of the jury could not be sustained, even under the most liberal rule in favor of their finding on the facts."

We have heretofore quoted the language of the declaration in this case, which is, in substance, that the injuries permanently impaired the intestate's constitution and general health, and accelerated his death and made him an easy prey to disease, "and, combined with the latter, brought about his death, several months afterward."

Coming now to the facts, we find, on some points, a sharp conflict. Proof of several witnesses introduced by defendant tends to show that the intestate was not seriously injured by the fall; that he was only confined to his house for a few days after the accident, and then resumed and continued his usual work, until stricken with pneumonia several months afterward.

But, of course, in considering this motion for peremptory instructions, that view of the evidence which is most favorable to plaintiff's case must be taken by the court, and if there is any doubt as to the conclusion to be drawn from the whole evidence, the motion for peremptory instructions must be denied. Kinney v. Railroad, 116 Tenn. 451, 92 S.W. 1116; Norman v. Railroad, 119 Tenn. 401, 104 S.W. 1088; Walton v. Burchel, 121 Tenn. 715, 121 S.W. 391, 130 Am. St. Rep. 788.

Looking therefore, to plaintiff's proof, the evidence of various lay witnesses tended to show that the deceased, although a man of 64 or 65 years of age, was in excellent health at the time of the accident; that prior to the accident he never had kidney or...