Flatley v. Memphis & Charleston R.R. Co.

• Decision Date: 30 April 1872
• Citation: 56 Tenn. 230
• Court: Tennessee Supreme Court
• Parties: E. A. FLATLEY, Adm'r, v. MEMPHIS & CHARLESTON RAILROAD CO.

56 Tenn. 230

E. A. FLATLEY, Adm'r,

v.MEMPHIS & CHARLESTON RAILROAD CO.

Supreme Court of Tennessee.

April Term, 1872.

FROM SHELBY.

Appeal in error from the judgment of the First Circuit Court, January Term, 1871. C. W. HEISKELL, J.

P. J. MULVIHILL for appellant.

HUMES & POSTON for appellee.

MCFARLAND, J., delivered the opinion of the court.

On the 24th of December, 1867, the original summons in this case issued against the defendant to answer Mary Flatley, widow, etc., for the use of herself and John Flatley and Edward T. Flatley, in an action to their damage, $25,000.

On the 1st day of February, 1868, upon motion, E. A. Flatley, as administrator of the estate of William Flatley, deceased, for the use of Mary Flatley, the widow and children of William Flatley, deceased, was made the party plaintiff, and a declaration was thereupon filed. The action is brought under section 2291 of the Code, charging the death of William Flatley to have occurred from injuries caused by the wrongful acts of the defendant's agents in running over him with a train of cars.

The defendant pleaded the general issue, but at a subsequent term obtained leave and filed a plea of the statute of limitations of one year, in which it is averred that the cause of action occurred more than one year before the amendment was asked for and obtained, making Edward Flatley as administrator of William Flatley, deceased, a party. A demurrer to this plea was overruled, and issue taken thereon. Upon final trial the verdict and judgment was for the defendant, a new trial was refused, and appeal in error prosecuted. It appears that William Flatley was killed on the night of the 6th of September, 1866; that in October, 1866, administration upon his estate was granted to E. A. Flatley. As before stated, the suit was commenced by Mary Flatley on the 24th of December, 1867, more than a year after the death of William Flatley, but within one year from the first of January, 1867. The amendment changing the action from the name of Mary Flatley, plaintiff, to the name of E. A. Flatley, administrator, was made on the 1st of February, 1868, more than one year from the death of William Flatley, and more than one year from the appointment and qualification of E. A. Flatley as administrator, and more than one year from the 1st of January, 1867, the date when it is assumed the statute of limitations in such cases begins to run, under the schedule to the Constitution of 1865.

The court below instructed the jury that the action must be brought within one year from the qualification of the administrator, excluding the time so elapsing between the qualification of the administrator and the 1st of January, 1867, and that the commencement of the action, as to the plaintiff, was the day the amendment was asked for and made making him a party, to-wit: 1st of February, 1868.

It is argued that this is error. It is not necessary to determine whether, in a case of this character, the cause of action shall be regarded as accruing at the date of the injuries received, or at the date of the death of the party, or, as the Circuit Judge held, at the date of the qualification of the administrator, or which of these periods shall be the time when the statute of limitations begins to run. For in this case it is conceded that under the provisions of the Constitution of 1865, the statute did not begin to run until the 1st of January, 1867, although the cause of action occurred previous to that time.The question is, in deciding the question of the statute of limitations, What date shall be taken as the commencement of the action--the 24th of December, 1867, the day the original summons was issued in the name of Mary Flatley; or the 1st day of February, 1868, when, by the amendment, E. A. Flatley became the plaintiff in her stead?

We cannot see that there is any very strong reason why the law should permit the action to be prosecuted in the name of the personal representative rather than in the name of the widow or children for whose benefit the recovery is to be had. But with this we have nothing to do--we simply declare the law as we find it.

There is no common law principle recognizing the right of the widow or children to maintain an action for the loss they sustain by the death of the husband or father, occasioned by the acts of others. It is also a recognized common law principle that the right of action for personal injuries dies with the plaintiff. This action, therefore, rests alone upon the authority of the statute, and cannot extend beyond its provisions.

The statute is, that “The right of action which a person who dies from injuries received from another, etc., shall not abate or be extinguished by his death, but shall pass to his personal representative for the benefit of his widow and next of kin free from the claims of creditors.”

The next section in substance provides that in the event the personal representative decline to bring the suit, the widow and children may use his name without his consent in bringing the suit. As we have said, we see no very good reason why the Legislature should authorize the widow and children to maintain the action in the name of the representative for their own benefit, and not allow them to maintain the action in their own name; but the...