Kennard v. Illinois Cent. R. Co.

• Decision Date: 08 March 1941
• Parties: KENNARD v. ILLINOIS CENT. R. CO.
• Court: Tennessee Supreme Court

148 S.W.2d 1017

177 Tenn. 311

KENNARD v. ILLINOIS CENT. R. CO.

Supreme Court of Tennessee.

March 8, 1941

Error to Circuit Court, Shelby County; J. P. M. Hamner, Judge.

Suit by Janie Kennard, individually and as administratrix of R. T Kennard, deceased, against the Illinois Central Railroad Company to recover for the death of R. T. Kennard, deceased who was struck by a locomotive belonging to the defendant. To review an adverse judgment, the plaintiff brings error.

Judgment reversed, judgment entered allowing amendment to declaration and cause remanded for further proceedings.

Henry M. Crymes, of Memphis, for plaintiff.

Evans Evans & Creson, of Memphis, for defendant.

FANCHER Special Judge.

This is a suit for damages brought by the administratrix in Tennessee for wrongful death of the intestate, deceased, occurring in the State of Louisiana. The determinative issue is whether there was such departure in pleading from the original declaration when an amendment thereto was made that it cannot relate, and that by reason of lapse of time the statute of limitations had barred the action. The summons is in the statutory form and it shows that the defendant is summoned to answer Janie Kennard, administratrix of R. T. Kennard in an action of damages in the sum of $10,000 for the wrongful death of said decedent.

The original declaration was filed on behalf of Janie Kennard as administratrix of R. T. Kennard, deceased, as plaintiff, against Illinois Central Railroad Company as defendant, showing that plaintiff sues by virtue of letters of administration issued by the Probate Court of Shelby County, Tennessee. It avers that on September 11, 1938, at about 2:30 P. M., plaintiff's intestate while on the tracks of the defendant near the town of Kentwood in Tangipahoa Parish, Louisiana, was struck by a locomotive belonging to the defendant and being operated by its agents or servants in the course or scope of their employment; that the proximate cause of the injuries was the negligent conduct of said agents or servants in operating said locomotive; that as a result of having been struck as aforesaid plaintiff's intestate suffered physical pain and mental anguish and thereafter died.

To the declaration the defendant demurred to the effect that the declaration is not sufficient in law and states no cause of action because it seeks to recover on an alleged wrongful death occurring in the State of Louisiana, whereas said cause of action ceased with the death of plaintiff's intestate. Thereafter, but before the demurrer was acted upon, plaintiff filed a motion for leave to amend her declaration: (1) So as to show the name of plaintiff in the caption to be "Janie Kennard as Administratrix of R. T. Kennard, deceased, who sues for the benefit of Janie Kennard, and Janie Kennard, individually"; (2) That the first paragraph of the declaration be amended likewise. The third matter of amendment was to show the interest of Janie Kennard as a sister of the whole blood to the said decedent and that decedent left surviving him no widow or children, no father or mother, nor brothers or sisters other than the plaintiff, Janie Kennard. The foregoing amendments were by the court allowed. Plaintiff also moved to amend her declaration so as to add:

"That on and prior to September 11, 1938, and continuously to the present time, there was and is in force in the State of Louisiana statutes, being Article 2315 of the Civil Code of Louisiana enacted in the year 1870, as amended by Act No. 71 of 1884, Act No. 120 of 1908, and Act No. 159 of 1918, enacted by the Legislature of Louisiana, said provision of the Civil Code, as amended, on, prior and since September 11, 1938, providing as follows:

"'Every act whatever of man that causes damages to another, obliges him by whose fault it happened to repair it; the right of this action shall survive in case of death in favor of the children or surviving spouse of the deceased or either of them, and in default of these in favor of the surviving father and mother or either of them, and in default of any of the above persons, then in favor of the surviving brothers and sisters or either of them, for the space of one year from the death; provided that should the deceased leave a surviving spouse, together with minor children, the right of action shall accrue to both the surviving spouse and minor children; provided further, that the right of action shall accrue to the major children only in cases where there is no surviving spouse or minor child or children.

"'The survivors above mentioned may also recover the damages sustained by them by the death of the parent or child or husband or wife or brothers or sisters as the case may be."'

The court disallowed the motion to amend this last particular setting up the statutes of the State of Louisiana providing survival of rights of action for torts causing death and thereupon sustained the demurrer and dismissed the suit. The ground for the court's action was that if the amendment had been allowed it would be fatal to the successful prosecution of the action, no action lying under the common law on behalf of the plaintiff for such wrongful death as alleged in the declaration.

The judgment shows that the court considered the original declaration as setting up an action under the common law and that the offered amendment, basing the action upon the statutes of Louisiana, if allowed, would state a new cause of action barred by the limitation of one year within which such action must be commenced as conditioned in said survival statutes above quoted.

There is some criticism in defendant's brief as to the sufficiency of the assignments of error. It is said that there is neither an appeal from nor assignments of error directed to the action of the trial court in dismissing plaintiff's suit. The assignments of error do not in direct language complain of the dismissal of the suit, but they do sufficiently set forth the alleged error of the trial court in disallowing the amendments and saying that plaintiff's statement of her cause of action was good as set up by the amendment. We think the assignments could have been better stated, but they are sufficient to raise all the questions presented in the case.

It will be seen that the summons is in the form of the Code, being a general form under Section 8647. It further appears that if no departure in pleading was offered the declaration as amended presented a good declaration, stating a cause of action and relating to the original declaration in point of time. It is also clear that the issuance of the summons effectually arrested the limitation.

Plaintiff concedes the trial courts among the several states do not take notice of laws of sister states, and that such laws, when relied on, must be pleaded and proven. Hartman v. Duke, 160 Tenn. 134, 22 S.W.2d 221. Plaintiff also conceded that the lex loci delicti determines the rights of parties affected by the wrong. Parsons v. American Trust & Banking Co., 168 Tenn. 49, 73 S.W.2d 698.

If no declaration had been filed until the time of the offered amendment in question, although the time of the limitation had run, there would be no bar because the summons stopped the running of the limitation. The summons in the case did not show whether the wrong alleged was committed in Tennessee or Louisiana, and that was not necessary to make it a perfectly good summons and to arrest the running of the limitation. The summons does not show whether it was a foreign or domestic cause of action.

There is considerable authority to the effect that when the foreign law in action is that of a common law state, it will be presumed that the common law of the foreign state is the same as the common law of the forum; and if there is a statute changing the lex fori the presumption will be that the foreign law is the same as that of the forum before the statutory change was made. Goodrich on Conflict of Laws, page 196.

Louisiana, however, is not a common law state and no aid can be drawn from presumptions. If there could be such a presumption no aid could result because if Louisiana had been a common law state, the presumption would be that the action died for the reason that the court could not presume a statute similar to Lord Campbell's Act had been enacted in Louisiana, as here. It will also be seen that the original declaration simply charged that defendant negligently injured and killed her intestate in Louisiana and that damages were thus sustained. However, she did not plead the statute of Louisiana in her original declaration.

The original declaration did not state a common law right. It was an imperfect declaration, but, of course, subject to amendment to make it perfect. This was what was attempted. The whole inquiry presented is to determine whether the offered amendment, which was rejected, set up another and different cause of action from that stated in the original declaration. If so, then it could not relate and the trial court was not in error in refusing the amendment and in dismissing the suit. This is the point in the case and its solution will determine it.

This court has held that where an action is brought in one state to recover for a wrongful death which occurred in another state, if the original pleading alleges the commission of the tort and the damages resulting, but fails to allege the existence of a statute similar to the English Lord Campbell's Act in the state where the injury occurred, an amendment after the lapse of the statute of limitations does not state a new cause of action and the amendment relates back to the time when the suit was originally filed. In that case the declaration alleged that the death occurred in Tennessee, but after the trial...