Holder v. Nashville, C. & St. L. R. Co.

• Decision Date: 10 December 1892
• Citation: 20 S.W. 537,92 Tenn. 141
• Parties: Holder et al. v. Nashville, C. & St. L. R. Co.
• Court: Tennessee Supreme Court

20 S.W. 537

92 Tenn. 141

Holder et al. v. Nashville, C. & St. L. R. Co.

Supreme Court of Tennessee.

December 10, 1892

Appeal from chancery court, Franklin county; Thomas M. McConnell Chancellor.

Bill in equity by John M. Holder, as next friend of the heirs of W E. Holder, asking that the Nashville, Chattanooga & St. Louis Railroad Company be compelled to pay to such heirs five sixths of $1,250, an amount paid by defendant to the widow of said W. E. Holder under a compromise with her for the negligent killing of said W. E. Holder by defendant.

Caldwell J.

This cause comes up on bill and demurrer. Complainants allege that W. E. Holder, while in the employment of the Nashville Chattanooga & St. Louis Railroad Company as an operative on one of its trains, was killed by and through the negligence of said company; that he left surviving him a widow and five children; that before the filing of the bill, the widow, for the sum of $1,250, compromised and settled the statutory cause of action accruing to her and the children against said railroad company, for the wrongful killing of the husband and father; that the railroad company had paid the whole of said $1,250 to the widow, and no part thereof to the children. Upon the facts thus alleged, complainants further allege, as matter of law, that the widow and children of W. E. Holder were entitled to equal shares of the $1,250, one sixth each that the widow was not authorized to receive any part of that sum except her one sixth; that the railroad company is liable to the children for their respective shares of the $1,250, notwithstanding its payment of the whole sum to the widow. The bill is filed in the name of the children, by next friend, against the railroad company and the widow; and a recovery is sought against the railroad company, in the first instance, for five sixths of $1,250. The railroad company demurs to the bill, and for cause of demurrer says, in substance, that the widow had full legal power to control the right of action, and that, having such power, she also had the power to receive the full sum of $1,250 for the parties entitled, and that the payment to her was therefore a full satisfaction of its liability. The demurrer was sustained, and the bill dismissed as to the railroad company. Complainants appealed. At the common law the widow and children of W. E. Holder would have had no right of action against the railroad company for wrongfully taking his life. The right of action which he had for the injuries negligently inflicted upon his person would have been extinguished by his death, but for our statute, which keeps it alive, and provides that it "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." Mill. & V. Code, § 3130; Railway Co. v. Lilly, 90 Tenn. 563, 18 S.W. 243; Railway Co. v. Pitt, 91 Tenn. 86, 18 S.W. 118.

The action may be instituted by the widow, or by the children, if there be no widow, or by the personal representative. The widow has the first right of suit; and the words of the statute, which...