Hobbs v. Memphis & Charleston R.R. Co.

• Decision Date: 30 April 1872
• Citation: 56 Tenn. 873
• Parties: JESSE B. HOBBS, Adm'r, v. MEMPHIS & CHARLESTON RAILROAD COMPANY.
• Court: Tennessee Supreme Court

56 Tenn. 873

JESSE B. HOBBS, Adm'r,

v.MEMPHIS & CHARLESTON RAILROAD COMPANY.

Supreme Court of Tennessee.

April Term, 1872.

FROM SHELBY.

Appeal in error from the judgment of the 1st Circuit Court, January Term, 1872. C. W. HEISKELL, J.

G. W. WINCHESTER, HAYNES & STOCKTON for appellant.

ELLETT & PHELAN for appellee.

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

This action is brought against the defendant, by the administrator of Jones, to recover damages for injuries causing his death.

The amended declaration, which is all that is before us, has three counts. The first states, as the cause of action, “that the defendant is an incorporated Company in the State of Tennessee, and, in the year 1866, was engaged in the transportation of freight and passengers by Rail to and from the City of Memphis; that Jones was employed as a baggage master on one of its trains; and, that the defendant so negligently and carelessly ran and conducted its trains upon said Road, that a collision occurred in which the cars were set on fire and the said Jones was crushed, injured, and burned, from which injuries, after great suffering and pain, he afterwards died; for which damages are claimed to the amount of $15,000.

The second count is for the gross negligence of the defendant, and alleges, in substance, that the defendant is an incorporated Company, duly chartered by an Act of the Legislature of Tennessee, and engaged in the transportation of persons and property by Rail, to and from, and between the City of Memphis and the Town of Chattanooga in said State; that Jones was a baggage master on one of its trains; and that by the carelessness and negligence of the defendant a collision occurred, which produced the injury complained of, causing his death, after languishing from the time of the injury to the date of his death.” This count then avers, that he was of unsound mind and incapable of sueing up to his death, and then concludes with the averment, that a cause of action had accrued to the plaintiff for the use of the two children of the said Jones.

The third count commences with the averment, “that the defendant, heretofore, to-wit, on the day and year aforesaid, in the State aforesaid, was engaged in transporting persons and property to and from the City of Memphis,” and then states, substantially, the same facts as in the previous counts, and that the said Jones was instantly killed, and claims that an action accrued to the plaintiff, to recover damages for the next of kin, on account of being deprived of the society, instruction, and counsel of their father, and the loss of his earnings for their support, &c.

Numerous pleas and demurrers to the same, and replications and demurrers to them, are found in the record,--sufficient to delight the admirer of Common Law pleading, or that technical system by which the rights of parties in the Courts of Law were once determined, in most cases, by the skill of the pleader in the use of a formal verbiage, rather than by the establishment of a legal right upon proof.

We need not go into the several very nice questions thus presented at present. The Court below, on the argument of these demurrers, filed by the plaintiff and the defendant, passed by the special objections pointed out in the demurrers to the various pleadings, went back to the declaration, and held it defective, in substance, for its failure to allege, that the injuries complained of were committed in the State of Tennessee. The Court, therefore, being of opinion that the demurrers extended back to the declaration, sustained them to the declaration, but allowed the plaintiff leave to amend the defect or to amend generally, which was declined; whereupon, judgment final was rendered, and the case was brought to this Court.

The first question presented is, Did the Court err in thus holding, as to the effect of a demurrer under our system of pleading? The rule is too familiar for a citation of authorities, that by the ancient system, the Court was right, and that on a demurrer, the Court considered the whole record, and gave judgment for the party, who, on the whole, appeared to be entitled to it. It may be well to remember, however, in arriving at a proper conclusion on this question, that under the Common Law system of pleading in England, judgment in most cases was final on a demurrer, or interlocutory, according to the natue of the action; but, in either case, a judgment was rendered, that settled the rights of the parties: whereas, under our system the party may always amend his defective pleadings, or plead over, in case his demurrer is overruled.

By the Code, Section 2934, “ demurrers for formal defects,” (that is, special demurrers at Common Law) “ are abolished, and those only for substantial defects are allowed” and “ all demurrers shall state the objection relied on; ” that is, all demurrers for substance,--because “on a fair and natural construction of the pleading” no cause of action...