McMillan Marble Co. v. Black

• Decision Date: 16 September 1890
• Parties: McMILLAN MARBLE CO. v. BLACK.
• Court: Tennessee Supreme Court

Page 479

14 S.W. 479

McMILLAN MARBLE CO. v. BLACK.

Supreme Court of Tennessee.

September 16, 1890.

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

Henderson, Huiskell & Osborne, for McMillan Marble Co. Caldwell & Mynatt and Chas. Nelson, for E. C. Black.

CALDWELL, J.

While in the employment of the McMillan Marble Company, William Shrum received physical injuries from which he died. E. C. Black as administrator of said Shrum's estate brought this action of damages against the marble company for the wrongful killing of his intestate, and recovered a judgment for $2,500. The marble company appealed in error to this court, and has here assigned several grounds for reversal and new trial.

1. The assignment made on the ground that the amended declaration fails to show that it was filed by leave of the court is bad, because the record recites that leave was "granted to amend the declaration."

2. The assignment claiming that neither the original nor the amended declaration tendered the plaintiff's letters of administration is as obviously not well taken. It is averred in the original declaration that the plaintiff had been duly qualified as administrator of William Shrum, deceased, and after that averment profert is made in the usual form, "letters of administration being here shown to the court." The amended declaration, being but an additional count to the original declaration, was good without a repetition of the profert. Moreover, the objection comes too late, being made for the first time in this court. If there had been no profert at all, the defendant could have taken advantage of that fact by demurrer only. Failing to do that, and pleading to the merits, he waived the objections. Code, (Mill & V.) § 3599; Corent. Lawsuit, § 199; Bank v. Osborne, 6 Humph. 319; Lowry v. Medlin, Id. 451; Walt v. Walsh, 10 Heisk. 316.

3. It is also urged that this court should reverse the judgment, and grant a new trial, because the plaintiff failed to produce his letters of administration as proof on the trial in the court below. There is no answer in the record to this assignment, as there is to the two just mentioned. The bill of exceptions, which purports to contain all the evidence, fails to show any proof of plaintiff's qualification as administrator of the deceased, hence it is conclusively presumed that no such proof was adduced. Nevertheless this assignment is bad in law, under the pleadings in this case. The plaintiff averred his authority to maintain the suit as personal representative of the deceased, by stating that he had been duly qualified as administrator on a certain day, by the county court of Knox county, and making profert of his letters of administration. The defendant made a general denial by a plea of not guilty, and on this plea went to trial. This plea of the general issue admitted the plaintiff's right to the representative character in which he sued, and rendered it unnecessary for him to make proof of his appointment and qualification. It was an admission that he was what he assumed to be, — the administrator of the deceased. That he rightfully possessed that character the defendant could call in question only by a special plea of ne unques administrator. This rule is well settled, the only conflict of decision being as to its application where the cause of action accrued after the death of the deceased. Cheek v. Wheatly, 11 Humph. 556; Glass v. Stovall, 10 Humph. 453. With Judge TOTTEN, who delivered the opinion in the Cheek Case, supra, we can see no reason why the rule of practice should not be uniform, and apply in the same manner where the cause of action originated after as before the decease of the intestate. But the case at bar is not of that class of cases concerning which the conflict of decision exists; for here the cause of action accrued on the day before the death, when the injuries were inflicted. Fowlkes v. Railroad Co., 9 Heisk. 829.

4. Errors are assigned on certain portions of the charge of the trial judge to the jury. These cannot properly be considered, because the charge is not before this court. What seems to have been the court's instruction to the jury is copied into the transcript, but it appears...