Collins v. E. Tenn., Va. & Ga. R.R. Co.

• Decision Date: 01 September 1874
• Citation: 56 Tenn. 841
• Court: Tennessee Supreme Court
• Parties: RUTH A. COLLINS v. EAST TENNESSEE, VIRGINIA & GEORGIA RAILROAD COMPANY.

56 Tenn. 841

RUTH A. COLLINS

v.EAST TENNESSEE, VIRGINIA & GEORGIA RAILROAD COMPANY.^a1

Supreme Court of Tennessee.

September 01, 1874.

FROM KNOX.

Appeal in error from the judgment of the Circuit Court, February Term, 1874. ELIJAH T. HALL, J.JOHN BAXTER for appellant.

CALDWELL & WASHINGTON for appellee.

SNEED, J., delivered the opinion of the Court.

The defendant appeals in error from a judgment of the Circuit Court of Knox county, upon a verdict of six thousand dollars ($6,000) damages assessed by the jury for killing Deaderick Collins, the husband of the plaintiff. The accident which occasioned the death of said Deaderick Collins, occurred on the 2nd of October, 1871. He was a fireman on the defendant's train, which, on that day, ran over some cattle, whereby the engine and tender were thrown from the track, and the tender upsetting fell upon said Collins, killing him instantly.

The action is brought by the widow, under the Act of 1871, ch. 78, which is in the words following: “Be it enacted, &c., that Section 2291 of the Code of Tennessee, be so amended as to provide that 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 the 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 his creditors.”

The second section of the Act is in these words: “Be it enacted, &c., that Section 2292 be so amended as to allow the widow, or if there be no widow, the children to prosecute suit, and that this remedy is provided in addition to that now allowed by law in the class of cases provided for by said Section 2291 of the Code, which this Act is intended to amend.”

This Act took effect and was approved by the Governor on the 14th of December, 1871, two months and twelve days after the death of the said Deaderick Collins.

The Sections of the Code thus amended, are in the words following:--by Section 2291, it is provided that “the right of action, which a person, who dies from injuries received from another, or whose death is caused by the wrongful act or omission of 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 the personal representative for the benefit of his widow and next of kin, free from the claims of his creditors.”

The other Section thus amended by the Act first above recited, is in these words: “The action may be instituted by the personal representative of the deceased; but, if he decline it, the widow and the children of the deceased may, without the consent of the representative, use his name in bringing and prosecuting the suit, on giving bond and security for costs, or in the form prescribed for paupers. The personal representative shall not, in such case, be responsible for costs, unless he signs his name to the prosecution band.”Then follows Section 2293, in these words: “If the deceased had commenced an action before his death, it shall proceed without a revivor. The damages shall go to the widow and next of kin, free from the claims of the creditors of the deceased, to be distributed as personal property.”

It will be observed that the effect of these Enactments was the abrogation of the Common Law doctrine, that personal actions die with the person, so far as actions of trespass for physical injuries are concerned.

It is insisted, on behalf of the defendant, that inasmuch as the killing of the plaintiff's husband occurred prior to the passage of the Act under which she brings this action, that she has no right to maintain it: the right of action being then in the administrator:--and this defense is relied upon under the general issue plea of “ not guilty.” It is said that the Act can not be construed to be retrospective in its operation; and, therefore, it is inoperative as to rights of action existing prior to its passage. If this objection be tenable at all, it should have been made in limine--and as the facts all appear upon the face of the declaration, it might have been taken by demurrer. Barb. on Parties, 308. The Courts would be loth, in any case, to entertain a technical objection made for the first time at the trial which might, by the lapse of time, result in defeating a meritorious cause of action; and which might, more appropriately, have been taken at the threshold, and thus afford an opportunity, by amendment, to save the right. But, waiving any further discussion upon the matter of practice, we are of opinion that the Act under consideration is not retrospective in a sense obnoxious to the Constitutional inhibition.

It is a general rule, that a Statute is to operate prospectively, unless upon its face it imports a retrospective operation; but it is not every retrospective law that is objectionable in a Constitutional sense. It is said that a vested right of action is property, just as tangible things are, and is protected from any arbitrary interference by the Legislature; but this doctrine is referable to such rights of action as spring from contracts or from the Common Law. Cooly, 362. But the right to a particular remedy, says the same authority, is not a vested right. Id., 361. The State has complete control over the remedies of its citizens in the Courts. It may give a new and additional remedy for a right already in existence--or may abolish old and substitute new remedies. Id., 361, 362. It may modify an existing remedy--or remove an impediment in the way of judicial proceedings. Id., 374. Thus it is said by this Court, that retrospective laws may be made when they do not impair the obligation of contracts, or divest or impair vested rights:--such as, laws providing new and additional remedies for a just right already in being, laws modifying or changing remedies, and all other strictly remedial laws; and there are many other laws that are retrospective according to the letter, yet not prohibited by the Bill of Rights. Wynne v. Wynne, 2 Swan, 410. The doctrine has no reference to laws which merely add cumulative remedies to a right already in existence. 1 Sneed, 86; Peck, 1; 6 Yerg., 119;2 Yerg., 123, 260;7 Hum., 170. Now, in this case, the Act, in the language of Judge Cooly, simply removes an impediment from judicial proceedings. The right of action under the original Act was in the...