Heald v. Wallace

• Decision Date: 20 November 1902
• Citation: 71 S.W. 80,109 Tenn. 346
• Parties: HEALD v. WALLACE et al.
• Court: Tennessee Supreme Court

71 S.W. 80

109 Tenn. 346

HEALD v. WALLACE et al.

Supreme Court of Tennessee.

November 20, 1902

Appeal from circuit court, Knox county; Joseph W. Sneed, Judge.

Action by James Wallace and others against T. H. Heald, receiver for damages for death of plaintiffs' decedent from injuries received in the course of employment. Judgment for plaintiffs, and defendant appeals. Reversed.

Lucky Sanford & Fowler, for appellant.

E. F Mynatt and Pickle & Turner, for appellees.

McALISTER J.

The plaintiffs below, as next of kin of Pharaoh C. Wallace deceased, recovered a verdict and judgment against T. H. Heald, receiver of the Black Diamond Coal Company, for the sum of $5,000, as damages for the alleged negligent killing of the said decedent. The receiver appealed, and has assigned errors.

The first assignment is that the entire suit has now abated, and is not subject to revivor. This contention is based on the following facts: The suit was originally brought by James Wallace and his nine brothers, alleging that they were the children and next of kin of the said Pharaoh C. Wallace, who was killed while in the employment of said receiver. It appears that four of the plaintiffs have died since this suit was instituted. James Wallace died prior to the trial in the circuit court, while his three brothers, John, Charles, and William Wallace, have died since the judgment in the circuit court, and pending the appeal; their deaths having been suggested and admitted in this court. A motion is now pending in this court to revive the suit in the name of the several administrators of the three plaintiffs dying since the judgment below. The effect of the death of James Wallace, who died before the trial of the suit in the circuit court, was to abate the suit as to him, and it is now insisted it can be revived in the name of his administrator. The reason why such revivor could not be had was stated in Loague v. Railroad, 91 Tenn. 458, 19 S.W. 430, and in Railroad Co. v. Bean, 94 Tenn. 388, 29 S.W. 370. But as to the three plaintiffs, John, Charles, and William Wallace, who died after the judgment in the circuit court was rendered, and pending the appeal, the rule is otherwise, and the suit may be revived in the name of their respective administrators. The reason is that by the judgment below the tort has become converted into a debt, and the appeal has not vacated, but only suspended, the judgment. This rule has been recognized by this court in libel cases, although expressly excluded from the statute authorizing revivor of action in this state (Shannon's Code, § 4569). We have held that where the tort has become merged in the judgment the statute is inapplicable. Akers v. Akers, 16 Lea, 7, 57 Am. Rep. 207; Kimbrough v. Mitchell, 1 Head, 540; Baker v. Dansbee, 7 Heisk. 231. It is insisted, however, that the effect of the death of James Wallace before the trial below was to abate the proportional right of action vested in him, and, as a legal consequence, to abate the entire right of action in favor of all the plaintiffs. This contention seems to be based by learned counsel largely on the case of Railroad Co. v. Bean, 94 Tenn. 388, 29 S.W. 370. In that case it was held that a suit brought by an administrator for the sole benefit of the widow of plaintiff's intestate, there being no surviving children, was abated by the death of the widow after judgment in the circuit court in favor of defendant, and pending the administrator's appeal, and could not be revived either by her personal representative, or for the benefit of the father of the plaintiff's intestate, as next of kin. The court said: "We think the exclusive statutory beneficiary was that person or class of persons who were entitled to recovery at the death of deceased, when the cause of action accrued. In this case it was the widow, and, in the language of the statute, the right of action passed to her, or to the administrator for her benefit. The right of recovery having once vested in the widow, it did not pass upon her death to her personal representative, neither did it revest in the next of kin of deceased; the reason being that no provision is made in the statute for such contingency. The cause of action, upon the death of the person to whom it survived, or for whose benefit it might be prosecuted, was thereby extinguished." It will be observed that in the Bean Case we expressly stated that "the exclusive statutory beneficiary was that person or class of persons who were entitled to the recovery at the death of the deceased, when the cause of action accrued." If James Wallace had been the sole next of kin, the entire suit would have abated upon his death; but since there were others, constituting the class to which he belonged, his death, while abating the suit as to him, in no manner affects the rights of the others. The death of one might affect the distribution of the recovery, but certainly it does not diminish the liability of the defendant company, even proportionately. The parties surviving and proving heirship, if liability is established, are entitled to recover full damages, notwithstanding the right of action of one member of the class has been extinguished by his death. Shannon's Code, § 4573; Caruther, Hist. Lawsuit, § 235.

It is next insisted, on behalf of the next of kin, that the trial court improperly excluded certain alleged statements of the mine boss and timberman, and that this court on the present appeal can review this action, and, if the excluded evidence is found competent, it may now be considered by this court in determining whether the demurrer to the evidence was properly overruled. It will be perceived this question is made in this court by the successful party on the appeal of the unsuccessful party, and the position assumed is that, if this court should be of opinion the demurrer to the evidence was improperly overruled on the admitted evidence, the excluded evidence was competent, and, considering it, the demurrer should still be overruled. It is well settled that a demurrer to the evidence waives objections interposed to the admissibility of evidence by the party who files the demurrer. Railway Co. v. Leinart, 107 Tenn. 635, 64 S.W. 899. But it will be perceived that the present case does not fall within the rule announced in the Leinart Case. Here the plaintiff's evidence was excluded on the objection of the defendant company. The defendant then demurred to the admitted evidence, the demurrer was overruled, and damages afterwards assessed by a jury. Defendant company then appealed to this court. It is now insisted on behalf of defendants in error, the next of kin to Wallace, that, in order to test the sufficiency of the demurrer to the evidence, this court should now consider the evidence which they claim was improperly excluded by the circuit court. In Washburn v. Shelby Co., 104 Ind. 321, 3 N.E. 757, 54 Am. Rep. 332, Judge Elliott, delivering the opinion of the court, said: "We do not think that the fact that the appellee demurred to the appellant's evidence precludes him from availing himself of a ruling excluding competent evidence. To hold that a party demurring to the evidence may render unavailing a ruling made against his adversary excluding competent testimony would work great injustice; for by so holding we should lay down a rule that would enable a defendant to secure erroneous rulings on the admission of evidence, and then, by demurring to the evidence admitted, deprive the plaintiff of the benefit of the rulings excluding evidence, however erroneous they might be, and however great the injury done to him by such rulings. The case is not at all like that of the demurring party asking a review of rulings upon the admission and exclusion of evidence, for he by his own act submits the cause for decision upon the evidence received by the court, and thus impliedly waives all questions upon rulings made in the course of the trial, but his adversary does no affirmative act waiving rulings to which he has reserved proper and timely exceptions. *** We hold that a defendant who demurs to the evidence cannot deprive the plaintiff of the right to make available questions upon rulings excluding facts." It is true that in an Indiana case the demurrer to the evidence had been sustained, and the cause was in the appellate court on the appeal of the plaintiff. Here the demurrer to the evidence was overruled, the plaintiff's damages assessed, and the case appealed to this court by the defendant.

Two questions now arise: (1) Whether plaintiffs can assign errors on the appeal of the defendant; and (2) whether plaintiffs should not have preserved the excluded evidence by bill of exceptions.

Considering this last question first, we are of opinion that, following the general practice, a bill of exceptions, duly authenticated, should have been taken to the action of the trial judge in excluding the evidence. A demurrer to the evidence is a mere pleading, and only brings before the court the admitted evidence. It is well settled that evidence excluded by a chancellor cannot be considered by this court unless made part of the record by bill of exceptions, or unless spread upon the minutes with the exceptions and the action of the chancellor thereon. Nance v. Chesney, 101 Tenn. 470, 47 S.W. 690. The testimony in a law case cannot be considered unless precisely identified and authenticated by the court by bill of exceptions. In State v. Hawkins, 91 Tenn. 140, 18 S.W. 114, it was held, approving Garrett v. Rogers, 1 Heisk. 321, and Wynne v. Edwards, 7 Humph. 419, that, where the bill of exceptions is not duly authenticated by the signature of the trial judge, it cannot be treated as a part of the record, even though it is recited in the minutes that the bill...