Knoxville, C.G. & L.R. Co. v. Acuff

• Decision Date: 18 October 1892
• Citation: 20 S.W. 348,92 Tenn. 26
• Parties: Knoxville, C. G. & L. R. Co. v. Acuff.
• Court: Tennessee Supreme Court

20 S.W. 348

92 Tenn. 26

Knoxville, C. G. & L. R. Co. v. Acuff.

Supreme Court of Tennessee.

October 18, 1892

Appeal from circuit court, Knox county; S. T. Logan, Judge.

Action by Claiborne Acuff, as administrator of Robert Acuff deceased, against the Knoxville, Cumberland Gap & Louisville Railroad Company, for the wrongful death of plaintiff's intestate. Verdict for plaintiff in the sum of $2,750. On motion for new trial, $1,750 was remitted, subject to a credit of $100, already paid. Defendant brings error. Affirmed.

Caldwell J.

Robert Acuff, a deaf and dumb man, while walking upon the track of the Knoxville, Cumberland Gap & Louisville Railroad Company was overtaken, run over, and killed by a construction train. Claiborne Acuff, administrator of the deceased, brought this action against the railroad company for the negligent and wrongful killing of his intestate, and obtained a judgment for $1,000. The railroad company appealed in error. The administrator brought the suit under Mill & V. Code, § 3130 "for the use and benefit of the widow and children" of his intestate. The declaration was filed October 29, 1890 and on November 1, 1890, the railroad company filed a plea of not guilty. On the 8th of January, 1891, it filed a plea of accord and satisfaction, averring that on "December 3, 1890, the defendant paid to Bettie Acuff, the widow of Robert Acuff, deceased, the sum of $100, which she accepted in full satisfaction of all claims and demand she, in right both of herself and children, had against the defendant for the killing of said Robert Acuff;" and that the "said settlement with said widow is a bar to this suit, and a satisfaction of all legal claim for damages by reason of said killing." The administrator demurred to this plea on two grounds: (1) That the widow had no legal right or power to compromise this suit; (2) that, if she could compromise it as to her own interest, she could not compromise it as to the interest of the children. The demurrer was overruled by the court.

That action was erroneous. The demurrer was good, and should have been sustained. It is true the widow had the first right to sue, and that, if she had availed herself of that right, she could have compromised and disposed of her suit as she pleased, without let or hindrance from any one, (Mill. & V. Code, §§ 3130, 3132; Greenlee v. Railroad Co., 5 Lea, 418; Stephens v. Railroad Co., 10 Lea, 448;) but it by no means follows that she had the power to compromise this action, brought by another person. She waived her prior right by permitting the administrator to sue without objection on her part. Webb v. Railroad Co., 88 Tenn. 119, 12 S.W. 428. This suit was instituted by the administrator in his name. It was his suit, and, being so, he alone had the right to control it. Though one of the beneficiaries, the widow had no power to compromise the litigation without his consent. Again, he brought the suit, as he should have done, for the joint benefit of the widow and children of his intestate, and both she and they were rightfully interested in the anticipated recovery. Mill. & V. Code, §§ 3130-3132; Greenlee v. Railroad Co., 5 Lea, 419, 420; Webb v. Railroad Co., 88 Tenn. 119, 12 S.W. 428.

One of these beneficiaries certainly had no power to compromise the administrator's suit without the concurrence of the other beneficiaries. Such concurrence is not averred in the plea. Then, the compromise, as averred, was inoperative for two reasons: (1) Because made without the assent of the plaintiff in the suit; and (2) because not concurred in by all the beneficiaries. We do not intend, by anything herein, to decide or intimate that the widow and children, if all of them were sui juris and concurring therein, could compromise the suit of the administrator without his consent. That question is not before us. This court held in Lewis' Ex'rs v. Brooks, 6 Yerg. 180, 181, that distributees, as such, could not compromise the administrator's suit without his consent.

After his demurrer was overruled, the plaintiff filed two replications to the plea of accord and satisfaction,-the first one being a simple denial of the truth of the plea, and the other averring that the compromise agreement, if ever made, was procured by fraud and undue influence. On this latter replication the defendant joined issue. Upon the issues thus made up, the parties went to trial before court and jury, with the result already stated. The railroad company has assigned several errors. The last in order will be considered first. It is that the court erred in refusing to arrest the judgment. The ground of the motion in arrest was that the plaintiff did not tender with his second replication to the plea of accord and satisfaction the sum received by the widow from the railroad company in the alleged compromise. There are three sufficient answers to this assignment, namely: First, the plea did not aver that the defendant had paid any money to the administrator, the plaintiff in the suit; second, if a tender had been necessary in the first instance, the defendant waived it by joining issue on the replication; third, when attention was first called to the fact that the tender had not been made, plaintiff's counsel paid into court, as a tender, the sum received by the widow, with interest, and,...