East Tennessee, V. & G. Ry. Co. v. Lilly

• Citation: 18 S.W. 243
• Parties: EAST TENNESSEE, V. & G. RY. CO. v. LILLY.
• Decision Date: 01 September 1891
• Court: Supreme Court of Tennessee

18 S.W. 243

EAST TENNESSEE, V. & G. RY. CO. v. LILLY.

Supreme Court of Tennessee.

September Term, 1891.

Error to circuit court, Hamblen county; W. R. HICKS, Judge.

Action by Thomas B. Lilly, administrator, against the East Tennessee, Virginia, & Georgia Railroad Company for the killing of plaintiff's intestate Judgment for plaintiff. Defendant brings error. Reversed.

W. S. Dickson and J. K. Sheilds, for plaintiff in error. O. C. King and J. F. Lafferty, for defendant in error.

CALDWELL, J.

Thomas B. Lilly, as administrator, brought this action against the East Tennessee, Virginia & Georgia Railroad Company to recover damages for the alleged wrongful killing of his intestate, Luther Lilly, deceased. Trial before court and jury resulted in verdict and judgment for $1,500 in favor of the plaintiff, and defendant appealed in error.

The only question for the consideration of this court arises on the pleadings and the action of the trial judge thereon. To the plaintiff's declaration, which was good both in form and substance, the defendant filed a plea, wherein it was averred that Luther Lilly, plaintiff's intestate, left surviving him no widow, child, or next of kin to take the recovery sought, and that, therefore, the action would not lie. Plaintiff replied that, though there were no widow, child, or next of kin, the action would lie for the benefit of creditors of the deceased, and, in the absence of creditors, for the benefit of the state. The defendant demurred to this replication as presenting an unsound proposition of law. The action of the court in overruling that demurrer is assigned as error. The artificial rule of the common law, that every right of action for personal injury died with the person injured, prevailed in the state until changed by the act of 1851, c. 17. Trafford v. Express Co., 8 Lea, 97, 98. That act, as amended by the act of 1871, c. 78, provides 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 wrong-doer 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. This statute is largely a counterpart of the first and second sections of what is familiarly known as "Lord Campbell's Act," passed by the British parliament in the year 1846, (St. 9 & 10 Vict. c. 93, §§ 1, 2,) and is very similar to statutes subsequently enacted by many of the American states. It manifestly abrogates the common-law rule just mentioned, and keeps alive the deceased person's right of action in every instance in which he leaves surviving a widow or child or next of kin. Whether it goes beyond that, and includes every case of wrongful killing without reference to the existence of kindred, is the controverted question. The statute virtually creates a liability in favor of the widow or next of kin which did not exist at common law; hence the courts will not extend or enlarge that liability by liberality of construction, but will confine it to cases clearly within the...