Daniel v. East Tennessee Coal Co.

• Decision Date: 13 October 1900
• Citation: 58 S.W. 859
• Parties: DANIEL v. EAST TENNESSEE COAL CO.
• Court: Tennessee Supreme Court

58 S.W. 859

DANIEL v. EAST TENNESSEE COAL CO.

Supreme Court of Tennessee.

October 13, 1900.

Error to circuit court, Knox county; Joseph W. Sneed, Judge.

Action by Evan Daniel against the East Tennessee Coal Company to recover for personal injuries. From a judgment abating the action, after the death of plaintiff, for want of proceedings to revive the action, a writ of error is brought in the name of Evan Daniel, deceased. Affirmed.

Ingersoll & Peyton, for plaintiff in error. Lucky, Sanford & Fowler and Henderson & Jourolmon, for defendant in error.

CALDWELL, J.

In the year 1893, Evan Daniel brought this action to recover damages from the East Tennessee Coal Company for personal injuries which it was alleged to have wrongfully and negligently inflicted upon him in the year 1892. He obtained three verdicts, one of which was set aside by the trial judge and two by this court. After the second remand the plaintiff died, and his death was suggested and admitted on the 1st day of March, 1899, nearly seven years after the alleged infliction of the injuries sued for. At the third succeeding term the circuit judge ordered that the suit be discontinued and abated because no steps for a revivor had been taken. To reverse that action the writ of error now before the court is brought in the name of Evan Daniel, deceased, upon the theory and contention that his suit survived under the statute (Code, § 2293; Mill. & V. Code, § 3133; Shannon's Code, § 4028), and might by virtue thereof be prosecuted to final judgment without revivor. The defendant enters a preliminary motion to dismiss the writ of error for the reason that it is prosecuted in the name of the deceased plaintiff, and on a bond in his name as principal obligor. The statute mentioned provides that a pending suit of the kind contemplated shall proceed after the plaintiff's death without revivor; which means not only that such suit may be prosecuted to final judgment in the lower court without revivor, but also that, after adverse judgment there, it may be brought into this court by appeal in error or by writ of error, without revivor, and in the name of the deceased plaintiff. Consequently the motion here made to dismiss this writ of error is not sustainable upon the grounds therein recited, and the case properly stands for hearing on the writ of error as presented.

Is this suit of the class contemplated by that statute? The artificial common-law rule, "Actio personalis moritur cum persona," prevailed in this state until modified by chapter 17, Acts 1851-52 (Railway Co. v. Lilly, 90 Tenn. 564, 18 S. W. 243; Trafford v. Express Co., 8 Lea, 97; Chambers v. Porter, 5 Cold. 276; Collins v. Railroad Co., 9 Heisk. 841); which, with some transposition and change of phraseology, appeared as section 2291 in the Code of 1858. To facilitate the remedy saved by that section (Chambers v. Porter, 5 Cold. 277), the codifiers added sections 2292 and 2293. The former two sections were amended by sections 1 and 2, respectively, of chapter 78 of the Acts of 1871. Section 2291, as so amended and carried into subsequent compilations, is as follows: "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 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." Mill. & V. Code, § 3130 (Shannon's Code, § 4025). Section 2292 and its amendment are carried into subsequent compilations in separate sections. The original section is as follows: "The action may be instituted by the personal representative of the deceased; but if he declines it, the widow and 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 sign his name to the prosecution bond." Mill. & V. Code, § 3131 (Shannon's Code, § 4026). The amendment, as compiled, is in these words, namely: "The action may also be instituted by the widow in her own name, or if there be no widow, by the children." Mill. & V. Code, § 3132 (Shannon's Code, § 4027). Section 2293, which is the one most directly affecting the present case, remains unchanged. It is in the language following: "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." Mill. & V. Code, § 3133 (Shannon's Code, § 4028). These four sections were in full force and virtue when Evan Daniel received his injuries, and they are so now. By them the pending controversy is to be decided. Obviously, the last of them refers to the same class of actions as the other three. The object of the first enactment was to preserve to the widow and next of kin of a person dying from the wrongful act of another the benefit of the cause of action which would have followed that act if death had not ensued, and the subsequent enactments were made in furtherance of that single object. Death from wrongful act and existence of widow or next of kin are the two controlling facts, and they must coexist in every instance. When either of them is lacking, no one of these statutory provisions is applicable. If the person wrongfully injured by another commences his suit for damages while living, he does so under the general law; and if he dies from the injury sued for before judgment, leaving a widow or next of kin, his suit survives and may proceed to judgment, under the last-quoted provision of the statute (Code, § 2293; Mill. & V. Code, § 3133; Shannon's Code, § 4028), without revivor. But, if either of these essential elements — death from wrongful act and existence of designated beneficiary — be wanting, that provision does not authorize the prosecution of a deceased plaintiff's suit...